Recent developments have significantly impacted the manner in which patent practitioners respond to final rejections issued by the U.S. Patent and Trademark Office (USPTO). The widely utilized After final consideration pilot program 2.0 (AFCP 2.0) has been discontinued, coinciding with substantial fee increases imposed by the USPTO. These changes present new challenges for navigating post-final practice at the USPTO in 2025.
Final Rejections in Patent Prosecution
Rejections of patent applications are not unusual, and a second or subsequent rejection can be “made final.” For patent applications, “final” does not necessarily indicate the end. The manual of patent examining procedure (MPEP) provides a variety of options for responding to final rejections from the USPTO:
- (A) an amendment complying with 37 CFR 1.116;
- (B) a notice of appeal (and appeal fee); or
- (C) a request for continued examination (RCE). U.S. Patent and Trademark Office, manual of patent examining procedure Section 714.3 (9th ed., rev. January 2024).
Until recently, patent practitioners had an alternative route, through the AFCP 2.0. Introduced in 2013, the AFCP 2.0 program was initially intended to only last a year. After final consideration pilot orogram 2.0, 78 Fed. Reg. 29,117 (May 17, 2013). The AFCP 2.0 was designed to “reduce pendency by reducing the number RCE and encouraging increased collaboration between the applicant and the examiner to effectively advance the prosecution of the application.” The program had benefits to both applicants and patent examiners. Once an application was accepted into AFCP 2.0, applicants were granted the opportunity to present substantive amendments and engage in an examiner interview without having to pay the fees associated with an RCE. Examiners were granted additional time to consider the substantive amendments. Even if the response under AFCP 2.0 fell short of leading to a Notice of Allowance, the process often improved the value of a subsequent RCE, as claim amendments filed with the RCE could be refined based on additional insight from the AFCP 2.0 process. The pilot program became one of the most popular among USPTO pilot programs, and was renewed time after time.
The End of AFCP 2.0 Program
Despite its popularity, the AFCP 2.0 program ended in December 2024. According to the USPTO, the AFCP 2.0 came at a cost. The USPTO estimated that for fiscal year 2022, it spent more than $15 million per year on examiner time to consider the AFCP 2.0 submissions, without any direct fee recovery from participants. Extension and Termination of the After Final Consideration Pilot Program 2.0, 89 Fed. Reg. 79,889 (Oct. 1, 2024). In April 2024, the USPTO proposed a new fee structure for the AFCP 2.0, with a new fee upon filing a request for entry into the program. The fee was met with significant opposition from stakeholders, who expressed concern that they would be paying a fee that did not entitle them any additional service. Although alternatives were proposed, the USPTO opted to end the program. For attorneys and their clients, the termination of AFCP 2.0 means that practitioners have one less option for proceeding after a final rejection.
Increase in USPTO Fees
The proposed fee for request for consideration under AFCP 2.0 was but one of numerous new fees and fee increases that were presented and have now been enacted as of January 2025. The fee increase aims to address budgetary constraints and ensure the sustainability of the USPTO's operations. Regarding after-final practice, the fee for filing a first RCE has increased by 10 percent, and by 43% for a second or subsequent RCE, up to $2,860 for some. See final rule: at-a-glance. All fees associated with the Patent Trial and Appeal Board (PTAB), the board responsible for reviewing appeals from the USPTO, have increased 25%. With AFCP 2.0 ending, RCEs and appeals are likely to rise. Consequently, maintaining a patent application after a final rejection now involves considerable costs for both primary options.
Impending Reduction of Force Brings Additional Complications
Another wrinkle for patent practitioners in determining patent strategy is the dynamic nature of staffing both at the USPTO and at the PTAB. Both groups have seen a hiring freeze implemented by an executive order on Jan. 20, 2025. In addition, administrative judges with the PTAB have been told to prepare for layoffs. See Theresa Schliep, "PTAB Judges Told to Get Ready For Layoffs," Law360, March 21, 2025. Although the extent of the workforce reduction is not yet known, it will inevitably impact the timeliness of patent application appeals.
Rethinking Final Rejection Response Strategy
Despite the myriad changes that affect patent prosecution, American innovation continues, and patent attorneys need to be thoughtful about best practices for their clients.
- Patent attorneys and agents should ensure they understand their clients’ business objectives so that patent strategy, and resulting cost, aligns with the commercial value and strategic importance of their inventions. It may no longer be the case that every invention is worthy of an RCE, or that a lengthy appeal process is the best path forward for clients.
- Applicants should work to build rapport with patent examiners through early examiner interviews in order to come to a meeting of the minds and reduce pendency. Applicants should come prepared to discuss outstanding issues and treat the interview as a collaborative process rather than an adversarial exercise.
- Applicants should present robust responses to early office actions. Applicants should consider backup positions and argue dependent claims that are of particular value to clients.
Opportunities for Policy Change
The current presidential administration has consistently identified the backlog at the USPTO as a point of focus. New commerce secretary, Howard Lutnick, discussed the backlog during his confirmation hearing, referring to the backlog “unacceptable.” Lutnick indicated a “rigorous reduction of that to get it down.” See Annelise Levy, "Lutnick Pledges to Tackle Patent Backlog, China ‘Abuse’ of USPTO," Bloomberg Law, Jan. 29, 2025. In addition to a new commerce secretary, a new USPTO director and entirely new Patent Public Advisory Committee will be appointed soon, almost certainly bringing additional policy changes. Despite the sunsetting of the AFCP 2.0, and the ongoing staffing challenges, there are certain policies that could be addressed to reduce pendency and improve the application process.
One potential modification is to incentivize examiners to accept more examiner interviews. The MPEP provides for one interview after final rejection “in order to place the application in condition for allowance or to resolve issues prior to appeal.” It is well known that interviews build rapport between applicant and examiner and, thus, lead to reduced pendency. It would be beneficial to broaden the policy for interviews such that examiners are encouraged to allow interviews after final rejection.
Another possible change is to revitalize the pre-appeal brief request for review (PABRR) program, which was introduced in 2005 as a way for applicants to have a panel of examiners review the legal and factual basis of the rejections before filing an appeal brief. The program enables applicants to present specific arguments before a panel of three examiners, who review them prior to the submission of a full appeal brief. Initially, the PABRR program served as an effective means to foster collaboration when applicants and examiners encountered difficulties in reaching an understanding. However, the program has been underutilized and has underperformed, as most requests still end up in appeal and success rates vary widely across technology centers. See Raymond B. Hom, "An Applicant’s Perspective: Options for After Final Practice," Aug. 22, 2017. The program should be revised to be more effective and consistent, and to provide more guidance and feedback to the applicants and the examiners. In particular, the PABRR program should be refined such that it is treated as an additional opportunity to come to a meeting of the minds between the applicant and the USPTO.
Conclusion
The landscape of post-final patent prosecution practice in 2025 continues to undergo significant changes with the end of the AFCP 2.0 program, fee increases, and staffing changes. Patent attorneys must adapt to these developments by implementing proactive strategies, enhancing communication, and more holistically managing patent portfolios. By staying informed and agile, attorneys can continue to provide valuable counsel to their clients and navigate the complexities of the patent system in the years ahead.
"Navigating Post-Final Practice at the USPTO in 2025: AFCP 2.0 Ends, Fees Rise and a New Administration Brings New Priorities," by Katherine Franco was published in The Legal Intelligencer on April 14, 2025. It was also published in the Daily Business Review.
Reprinted with permission from the April 14, 2025, edition of The Legal Intelligencer © 2025 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.
