It is time to prepare for the end of 2020. Even if a company’s fiscal year does not conclude with the calendar year, a company still might have a fiscal quarter that ends December 31. Accordingly, many applicants will balance their patent prosecution docket against their financial needs. Applicants with a surplus might try to advance the filing of as many Requests for Continued Examination (RCEs) as possible, as few expenses are greater in the typical ex parte prosecution.
In contrast, Applicants under a strict budget might delay new filings into January 2021. This delay affects more than simply the first filing. The delay also postpones associated deadlines (e.g., under the Paris Convention) to January 2022. This postponement leaves Applicants the option of meeting those deadlines earlier in December 2021, if there is a budget surplus then.
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Examiners also become scarce at the end of the year. Examiners frequently take vacation around Thanksgiving, such as beginning Wednesday, November 25, or even Monday, November 23. Other Examiners might take vacation around Christmas or New Year’s Eve and, especially, from Thursday, December 24, through the new year.
At a minimum, the large number of vacationing Examiners creates difficulty in scheduling interviews. However, the issue is more than Examiners simply being out of the office: the issue extends to the Examiners devoting more time to examination (and less time to interviews) to prepare for this work disruption.
Savvy practitioners understand this disruption adversely affects the overall USPTO workflow. Specifically, these practitioners know their after-final responses might not receive timely consideration by their Examiners. For example, Advisory Actions following Requests for Reconsideration or Amendments under 37 CFR 1.116, including Amendments filed under the After Final Consideration Pilot (AFCP) 2.0 Program, might be delayed. As a result, extensions of time might become necessary, and, in extreme situations, applications might become abandoned.
Accordingly, practitioners might file responses within two months of a final rejection. Alternatively, practitioners might file an RCE with their after-final response to avoid extensions of time resulting from a disrupted Examiner workflow.
As always, Modal PLLC can assist Applicants develop a suitable strategy for their situation.