US AFTER FINAL CONSIDERATION PILOT (AFCP) PROGRAM FLOPPED
Just recently we issued a paper concerning drawbacks of US patent prosecution (see our previous blogs) and now JURISTAT published a new analysis on the After Final Consideration Pilot (AFCP) 2.0.
In 2013, USPTO enacted the program as an alternative response to a final rejection. The goal of the program was to increase communication between examiners and applicants and take those applications that are close to allowance across the finish line, without requiring the time and cost inevitably associated with an RCE. With the After Final Consideration Pilot 2.0 (AFCP 2.0) extended through September 30, 2019, a first analysis has been provided at how popular (and successful) these requests have been since its inception in May 2013.
In analyzing applications that received their first rejection between 2013 and 2017 (excluding design patents), it was found that about 30 % of those included an AFCP request.
The first thing to notice is the steady increase in applications with AFCP requests each year. The program was intended to offer a faster, cheaper, and easier route than an RCE, and year over year, it appears patent attorneys have embraced the program. Preliminary data from 2018 suggests that this trend will continue.
From the announcement of the program through the end of 2017, examiners issued allowances in response to 25 % of AFCP requests. That means only a quarter of applications with AFCP requests earned an allowance – while avoiding the additional time (or cost) associated with filing an RCE or appeal.
Conversely, examiners responded with an advisory action, which indicates the AFCP request did not render the claims patentable, for 70% of the applications. The remaining requests received a new rejection, abandonment, or the practitioner went on to request an RCE. These percentages are remarkably consistent with the earlier research two years ago.
So 7 out of 10 requests do nothing but cause the applicant an extra month of extension, wherein then an RCE is still required. The full analysis can be found at: