The AFCP 2.0 program was established in 2012 to provide applicants with an alternative to RCEs. The purpose of the program is threefold: 
As precursors to the more wide-ranging Alice decision and the USPTO guidance that came after it, the impacts of the Mayo and Myriad decisions have gotten somewhat lost in the scuffle of all of the attention paid to § 101 rejections in the software and business methods technology sectors. While Mayo and Myriad were limited to patent applications touching on laws of nature, these two cases...
Ever since Mayo was decided in 2012, the percentage of § 101 rejections on biotech, pharma, and life sciences applications has been on the rise, from 4.9% before Mayo to 8.6% after Myriad to 15.7% after Alice. A total of about 37% of all § 101 rejections in Technology Center 1600, which handles the bulk of these types of applications, now cite either Mayo or Myriad. This is bad news for...
On August 10, 2017, we presented a webinar titled "Biotech, Pharma, & Life Sciences at the USPTO" where we examined the state of patent prosecution in Technology Center 1600. If you have not seen that presentation, you can view it below. 
In addition to being more expensive than RCEs and interviews, appeals also take much, much longer to reach a resolution. It takes an average of 33 months for an appeal at the USPTO to make it from the notice of appeal stage to a final PTAB decision on the merits. That is a significant amount of time (almost three years, in fact), for an application’s outcome to be up in the air. This perhaps...
As we have previously reported, Michelle Lee recently stepped down from her post as Under Secretary of Commerce for Intellectual Property and Director of the USPTO. This move was abrupt and took most in the IP world by surprise. As such, her resignation has raised many questions about the future of the USPTO and about American IP policy more generally. In this post, we will examine Michelle Lee’s...

Alice: Three Years On

July 19, 2017
Overview  Few decisions in the patent law space in the last decade have made as many waves as Alice Corporation Pty. Ltd. V. CLS Bank International, et al., 573 U.S. ___ (2014). Decided on June 19, 2014, the case was a landmark decision that significantly altered the way the courts and the United States Patent and Trademark Office (USPTO) handle...
As we mark the three-year anniversary of the Alice decision, the case’s effects have come into focus quite clearly. About 64% of all § 101 rejections now cite Alice, and that percentage has only been on an upward trend since the case was decided. Applicants who receive a § 101 rejection have about a 61% chance of getting around it, but that chance drops to about 50% if the § 101 rejection cites ...
To speed up patent prosecution and minimize unnecessary Requests for Continued Examination (RCEs), the USPTO enacted the After Final Consideration Pilot (AFCP) 2.0 program as an alternative response to a final rejection. The plan was to increase communication between examiners and applicants and take those applications that are close to allowance across the finish line, without requiring the...
One of the most commonly-cited disadvantages to choosing an appeal as a post-final rejection strategy is that, in addition to being expensive, they are also quite slow. For applications in which there was a final PTAB decision on the merits from January 1, 2011 to December 31, 2015, the average length of time between the filing of a notice of appeal and a PTAB decision was 33.4 months. Compare...

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