USPTO Response Times for RCEs

After a patent application is filed, the Patent Office assigns an Examiner to review the merits of the invention and determine if a patent should be issued. The formal response of the Patent Examiner is called an Office Action. An applicant (inventor) responds to the Office Action with an Amendment (claim changes) and/or Response to Office Action (arguments why the Examiner’s position is incorrect).

After an Office Action has been made final (generally after the first office action), an applicant must file an RCE and pay a fee to have the Examiner consider further arguments for patentability and allowance of the application.

While the patent Examiner has a certain timeframe to respond to amendments and responses to Office Actions on the merits (3-6 months), no such response period is required for an RCE (Request for Continued Examination). It is not uncommon to have no response after six months. This not only frustrates inventors and patent attorneys, it goes against USPTO goals of compact prosecution and encouraging interviews. It also lessens the value of an interview when the details agreed upon are not recalled by the Examiner months later.

There is some good news, however. If the Patent Examiner takes longer than four months to respond, a patent term adjustment will add more time to the end of the patent term, extending it on a day-by-day basis for PTO-related delays in issuing a patent.

Another piece of good news is that the allowance rate after an RCE is higher than after first office actions on the merits.

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