Examiners now have more leeway to consider After Final Amendments under a new pilot program that began on March 25, 2012. The new program, entitled the After Final Consideration Pilot (AFCP), gives examiners more flexibility to act after an application is under final rejection by authorizing a limited amount of non-production time to consider an Amendment After Final Rejection.
Before the pilot program, examiners would generally not consider an Amendment After Final Rejection that raises new issues requiring further consideration or search, leaving an applicant the choice of pursuing an appeal or, more likely, filing a Request for Continued Examination (RCE). Under the new pilot program, however, up to three hours of non-production time is authorized to consider whether an After Final Amendment can bring the application fully into condition for allowance. The guidelines, which can be found here (Guidelines), include situations where (i) new claims are added without cancelling a corresponding number of finally rejected claims or (ii) new limitations are added to existing claims, and require only a limited amount of further consideration or search to determine whether the amendment places the application in condition for allowance. The guidelines also allow for an After Final Response that includes a perfected Rule 131 or 132 affidavit to be entered if it can be determined to place the application in condition for allowance with minimal further search or consideration.
The pilot program is scheduled to run only through June 16. If it is successful in accomplishing the PTO’s goals of moving applications toward allowance and reducing the number of RCE’s, look for it to be extended or even permanently instituted.