The original AFCP or After Final Consideration Pilot Program wasn’t successful because it didn’t move prosecution along toward making the Applicant realize that they don’t have an invention that will ultimately result in a patent leading them to drop the case or allow the examiner to understand the true beneficial nature of the invention leading to an allowance. In my experience, participation in the original AFCP did not lead to forward moving progress. Instead, most if not all applications were automatically rejected. This was also conclusion among other patent attorneys that attempted to use the AFCP. As such, the AFCP was a procedure that I did not personally recommend because it added to the overall cost of patent prosecution with little yield.
AFCP 2.o is the second generation of the AFCP. AFCP 2.0 gives examiners more time to consider the amendments and claims presented to the examiner. With additional time to search and consider the amended claims, the thought is that examiner will not automatically reject the claims but instead consider them and possibly allow some of those applications to pass to allowance thereby reducing the backlog of requests for continued examinations. Additionally, the AFCP 2.0 prevents the examiner from rendering another rejection. After filing documents under AFCP 2.0, the examiner must either allow the case or call the applicant for an interview.
My initial reaction is to recommend the AFCP 2.0 to clients. The reason is that there are no additional fees to participate in this pilot program and it ensures that the examiner will not send out an automatic advisory action maintaining the rejection in the final office action. Better yet, it would be great to request an interview after final with the goal of filing a response under AFCP 2.0 so that you would be guaranteed a second interview or allowance of the claims. If you need to enlarge the claims in any respect, then you cannot use this procedure. You must file a request for continued examination.
Here is a link to the Federal Register notice for the AFCP 2.0.
Here is a link to the AFCP 2.o form.
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