After-Final Practice Without AFCP 2.0

The After Final Consideration Pilot Program gave applicants a route to have an after-final amendment considered without a request for continued examination. The USPTO proposed charging for it, commenters objected, and rather than impose the fee the Office let the program lapse. The last day to request participation was December 14, 2024. The practical effect is that a cheap iteration at the end of prosecution is no longer available, which pushes the substantive conversation with the examiner earlier, into an interview before final rejection rather than an amendment after it.

The notice is short. The Office had proposed a fee for AFCP 2.0 requests when it set fees in April 2024, and "Commenters on the proposal expressed concerns about the AFCP 2.0 and the proposed fee." Its response: "In view of these comments, the USPTO has decided to allow AFCP 2.0 to expire."

Termination Over Pricing

The choice the Office made is the part worth noticing. Faced with objections to a fee, it did not lower the fee, phase it in, or keep the program free. It ended the service. Nothing in the notice offers a replacement path or says one is intended, so after-final practice reverts to what it was before the pilot existed.

The deadline was firm and slightly extended. The Office set "December 14, 2024, as the last day to submit a request for participation under the program", a short extension from the scheduled expiry to accommodate applicants who were already preparing a request, and it stated the cut-off in absolute terms: "The USPTO will not accept requests for consideration under the AFCP 2.0 filed after December 14, 2024."

Where the Work Moves

What disappears is a low-cost path to after-final consideration. What replaces it is nothing, so the work moves upstream.

• The substantive exchange belongs before final rejection. With no AFCP route, an after-final amendment that needs real consideration generally needs a request for continued examination, which costs more and restarts examination. An interview before the final action is the cheaper place to have the same conversation.
• Docketing rules that still contemplate AFCP are wrong. The cut-off is absolute after December 14, 2024. A checklist or a template paragraph that offers the program as an option is offering something the Office will not accept.
• The RCE fee amounts are not here. They live in the fee schedule and in the FY2025 fee rule, which is also where the cost of the remaining after-final routes is set.

The notice is nearly two years old at the date above and fully executed. There is nothing left in it to take effect; what remains is its absence.

What applicants actually did instead

Our own counts of the USPTO record, following every application for 12 months from its own first final rejection. The expectation was that everyone would file a request for continued examination instead. They largely did not: the RCE share moved 1.6 points.

What This Does Not Decide

• It does not recommend an after-final strategy.
• It does not say what any remaining route costs or achieves in a given case.
• It concerns procedure and cost, not patentability.

Educational, not legal advice. This page reports what an authority says. Applying it to a matter is work for a registered practitioner with the file in front of them.