There has always been a problem that some Examiners fish for unnecessary continuations and RCEs. If an applicant can be teased into filing a continuation or an RCE, the Examiner picks up two more “counts”.
One of the USPTO’s initiatives to try to reduce this problem happened in 2013 — the After Final Consideration Program (AFCP). Now after a ten-year run, the USPTO has announced (Federal Register notice) that it will discontinue AFCP.
During the ten years that AFCP was available, our firm used it many dozens of times. I estimate that in perhaps 25% of cases, it did save us from having to file an otherwise unnecessary continuation or RCE. Now with the AFCP initiative gone, we will surely face renewed levels of fishing for continuations and RCEs by some Examiners.
In some cases, even when the examiner insisted on an RCE, they’d use the AFCP extra search time to point out the reference(s) they’d cite against the [non-entered] amended claims, giving the Applicant a useful heads-up.
That was a snarky announcement, saying basically that we tried to keep it but when we proposed some fees to fund it, applicants didn’t want to pay. Maybe because the proposed fee ($500) was outrageous and applied whether or not the examiner agreed to consider the submission under AFCP. A smaller refundable fee might have received a different reception.
Excellent point Dan.