USPTO Seal By filing a patent application and paying the filing fee, you are entitled to two reviews by the patent examiner.  The examiner has a very short and strict time limit to review your application.  If the examiner does not meet that time limit, then he or she may not meet productivity goals and may be denied raises and promotions.  If the examiner does not meet productivity goals three times, then he or she is out of a job.  By the second rejection of your application, the examiner likely has reached the end of the time allotted and can afford to give your application no more time.  In the past, when you received a ‘final’ rejection; that is, when the PTO patent examiner rejected your application for the second time, you generally had three options.  You could:

(1) File amendments that placed the application in condition for allowance.  Such amendments generally are limited to accepting what the examiner has decided that he or she will allow.

(2) File a ‘request for continuing examination’ and pay an additional filing fee for two more reviews.  In addition to the extra cost, this option generally defers final resolution for another six to nine months.

(3) File an appeal to the Patent Trial and Appeal Board.  The cost for an appeal is at least several thousand dollars and average time to resolve an appeal is three years.

You now have a fourth, and highly attractive, option: you can ask for additional consideration under the ‘after final consideration’ pilot program.  The ‘after final consideration’ program gives the examiner extra time to review your application and hence makes the examiner willing to further consider your application.  That further consideration may include an interview with the examiner and amendments to the claims.  There is no filing fee to take advantage of the program and no additional delay.  What’s not to like?

— Robert Yarbrough, Esq.