After a final Office Action has been issued, prosecution of a patent application is considered to be closed. This means that the Examiner will not automatically consider or enter further arguments or amendments. Arguments and amendments can nevertheless be presented, however, if they do not place the application in condition for allowance or would require non-trivial amounts of searching by the Examiner, the Examiner will generally refuse to enter the response. A Request for Continued Examination is then typically used to obtain further examination of the case.
Since 2012, the Patent Office has operated an After Final Consideration Pilot Program (“AFCP”) which allows applicants to obtain continued examination of a case without having to pay for an RCE. The AFCP allows Examiners to take additional time to review cases, and provides for additional interviews for the purpose of moving an application toward allowance.
There is no fee for requesting the AFCP itself, but there may be fees involved if a response is filed beyond the shortened statutory period. AFCPs can only be filed in original, continuation, and divisional patent applications, or for international applications in the national stage, and only after a final rejection has been issued. Argument alone cannot be presented; there must be an amendment to least one of the independent claims, and the applicant or its attorney must be available for interviews with the Examiner regarding the response filed with the AFCP.
The AFCP can provide a helpful means of compacting and expediting examination of a patent application toward issuance without the costs and delays associated with a Request for Continued Examination.