Last December, the United States Patent and Trademark Office (USPTO) After Final Consideration Pilot Program (AFCP 2.0) expired. AFCP 2.0 allowed for an interview with the Examiner following a Final Office Action.

At the USPTO, an unlimited number of examination cycles can be completed for a fee. Each examination cycle includes

• an initial examination with a Non-Final Office Action and
• a second examination with a Final Office Action.

After each Office Action, the patent application can be amended to address the Examiner's concerns or a written argument can be submitted in response to the examiner's objections. Within an examination cycle, there are two opportunities to obtain a patent grant, namely after the Non-Final and after the Final Office Action. If no allowable form of application is achieved in an examination cycle, a Request for Continued Examination (RCE) must be filed. Alternatively, an appeal against the decision can be filed, but these are often associated with high costs.

With the AFCP 2.0, it was possible to file amended claims after a Final Office Action and discuss them again with the Examiner until December 14, 2024. This had the advantage that a direct exchange with the Examiner could take place. Another major advantage was that no further fees were charged by the US Patent Office for the AFCP 2.0. However, the program was not extended due to rising costs and unclear counter-financing.

How you can react to the changes

It is still possible to conduct an interview with the Examiner, but this is associated with higher costs. However, an interview can advantageously significantly shorten the granting process and thus reduce the overall costs for the granting process. An interview is particularly useful if several different variants appear to be useful for limiting the patent claims. However, please note that if you choose to interview, you will need to act quickly to avoid extensions and additional fees.

Please feel free to contact us so that we can evaluate the optimal approach for US patent application for your patent portfolio.