November 29, 2022

Volume XII, Number 333


November 28, 2022

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UPSTO Extends Pilot Programs

October marks the start of a new fiscal year for the USPTO. Last week the agency announced the extension of several pilot programs that will continue on into 2023 and beyond.

The Caner Immunotherapy Pilot Program

The Caner Immunotherapy Pilot Program (also referred to as the Patents 4 Patients program) has been extend through January 31, 2023. This program is intended to support the Cancer Moonshot initiative and promote innovation in cancer treatments by offering fee-free expedited examination of patent applications claiming methods of treating cancer using immunotherapy. In announcing the extension, the USPTO reported that so far over 650 patents have been granted under the pilot program.

Other subject-matter specific expedited examination programs include the Climate Change Mitigation Pilot Program (for innovations that reduce greenhouse gas emissions) set to expire June 5, 2023, and the Covid-19 Prioritized Examination Pilot Program (open only to applications with Small Entity or Micro Entity status) set to expire December 31, 2022.

The After Final Consideration Pilot Program 2.0

The After Final Consideration Pilot (AFCP) Program 2.0 has been extended to September 30, 2023. As explained on the USPTO’s AFCP 2.0 webpage, the program “authorizes additional time for examiners to search and/or consider responses after final rejection.” As noted in this article, AFCP 2.0 is intended to “reduc[e] the number of Requests for Continued Examination (RCE) and encourage[e] increased collaboration between the applicant and the examiner to effectively advance the prosecution of the application.” 

Since the program was rolled out in May 2013, many stakeholders wonder how it is still a “pilot” program, and whether it has been successful.

The Fast-Track (Ex Parte) Appeals Pilot Program

The Fast-Track Appeals Pilot Program has been extended through July 2, 2024. As explained in this article, this program offers applicants an opportunity to expedite Board review of ex parte appeals of an examiner’s rejection, for a fee of $400. In announcing the extension, the USPTO reported that “the current average appeal pendency is about 12 months, down from 15 months in 2020, and 30 months in 2015.” The announcement seems to encourage applicants to consider appealing final rejections instead of continuing prosecution, stating that “[u]sing the appeal process may be more expeditious for inventors and may speed the ultimate issuance of patents as opposed to request for continued examination practice.”

© 2022 Foley & Lardner LLPNational Law Review, Volume XII, Number 276

About this Author

Courtenay C. Brinckerhoff, intellectual property  law attorney, Foley & Lardner  Law Firm

Courtenay Brinckerhoff is a partner and intellectual property lawyer with Foley & Lardner LLP. Ms. Brinckerhoff’s practice focuses on client counseling in all aspects of obtaining, licensing and enforcing patents and conducting freedom-to-operate and due diligence investigations. She is chair of the firm’s IP Law and Practice committee, immediate past vice chair of the firm’s Chemical, Biotechnology & Pharmaceutical Practice and a member of the firm's Patent Trials group, Appellate Practice and Life Sciences Industry Team. She also is involved with Foley’s...