The popular P3 Pilot Program that began on July 11, 2016 is scheduled to end on January 11, 2017, but has effectively ended for most technology centers. Only Technology Center 1600 is still accepting Requests. The remaining technology centers reached the maximum number of requests before the scheduled January 11, 2017 ending date, some long ago. Other popular Pilot Programs of the USPTO, such as the After Final Consideration Pilot (AFCP) 2.0 program and the Pre-Appeal Brief Conference, have been extended numerous times in the past. However, it appears the USPTO will let the “sun set” on the P3 Pilot Program, at least temporarily. In practice, the P3 Program results were mixed because many Examiners were not yet trained on the Program. We note that the USPTO has conducted surveys of P3 program participants and invested in training for Examiners even after the P3 program ended in some of the technology centers. This leads to optimism that the P3 program will be renewed in some form and/or extended.
The USPTO on July 11, 2016 began a new post-prosecution pilot program (“P3”). The pilot program will run until January 12, 2017, and is limited to 1600 total requests and 200 requests per technology center.
The P3 program is preferable to filing a Notice of Appeal and Request for Pre-Appeal Brief Conference in cases where no after-final claim amendments are presented. The P3 program is also be preferable to filing an AFCP 2.0 Request in cases where after-final non-broadening claim amendments are presented unless, for example, the Examiner agrees in advance to consider such amendments.
The P3 Request must be filed within two months from the mailing date of the final rejection and prior to filing a notice of appeal. Applicant must not have previously filed an AFCP 2.0 Request or a Request for Pre-Appeal Brief Conference on the same rejection. There is no fee required with the P3 Request. Proposed non-broadening claim amendments are permitted, and the arguments are limited to 5 pages (which can be single spaced). Applicant must also agree to participate (e.g., via their representative) in a conference with a panel of Examiners. The conference can be conducted by telephone.
Once a P3 Request is made, no further response (e.g., claim amendments) is permitted unless the Examiner agrees that such a response would place the application in condition for allowance. Therefore, if the application is not allowed by the P3 Request, Applicant would need to either appeal the claims in their unamended form, or file an RCE to have claim amendments entered. This is more restrictive than AFCP 2.0 practice, which does not affirmatively restrict further amendments without an RCE. However, in practice, if an Examiner does not enter the amendments filed with an AFCP 2.0 Request, the filing of an RCE is needed to further prosecution.