1. Change the Status of an RCE filing from A Continuation New Application and Process an RCE Filing As An Amended Application
First, it should be abundantly clear that reclassifying the RCE as a “new” application and diverting emphasis or priority from their examination creates more of a problem that it solves. So, I would first advocate for reclassifying the RCE back to their original and proper status of the RCE as an amended application. Second, the RCE as an amended application should be placed on the amended docket to be taken up for reconsideration within two months like any existing amended application. Because of the existing large backlog that has been created, there may now be a need to either create a special amended tab for RCEs and rank and commence processing of a determined number of the RCEs in a particular timeframe. For example, starting with the RCE with the earliest filing date at least one RCE could be slated for processing every 14 days or perhaps two RCEs every 28 days. Certainly this would be an improvement over the current worst case scenario of processing at least 1 RCE every 28-56 days. This newly created RCE docket would be separate and apart from the Continuation New application docket that contains both continuation applications and RCE applications ranked in earliest filing date order. After the backlog of RCEs is substantially reduced, the practice of placing an RCE on the Amended application filing docket for processing within the standard 56 day time frame applicable for amendments could re-commence.
2. Increase discussions/negotiation time between the Examiner and practitioner by a Formal Interview After Non-Final Action Process Program
Include or build into the examination process a formal interview process that may be used in the course of examination, i.e. Interview After non-final action, similar to the After-Final Consideration Pilot (AFCP). This would be a 2-3 hour interview after a non-final action that may be utilized by the examiner and practitioner to review and work out additional amendments to an application in light of the cited art that could possibly result in the application being placed in condition for allowance. Currently, about one hour of time is allowed for interviews before close of prosecution.
With the option of a negotiation type interview on the front-end of the examination process (the first action interview pilot program), a process for a negotiation-type interview at the close of prosecution (the AFCP),, and an option for a negotiation type interview after a non-final office action, the possibility of placing an application in condition for allowance dramatically increases.
Now, despite all these discussions and negotiations, the need to file RCE will likely still exist and when an RCE is filed, the filing should be part of an amended docket that will enable efficient and timely processing.