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Final Rule: Changes to Implement the Prioritized Examination for Requests for Continued Examination

  • 12.19.11
  • Sterne, Kessler, Goldstein & Fox

The USPTO has published a final rule entitled “Final Rule: Changes to Implement the Prioritized Examination for Requests for Continued Examination." The final rule amends 37 CFR 1.102. Visit GPO.gov for more information.

The USPTO has amended the rules to allow for applicants to file a request for prioritized examination (Track 1) in any application in which a proper request for continued examination (RCE) has been filed. The final rule applies to any patent application in which a proper RCE has been filed before, on or after December 19, 2011.

The request for prioritized examination can be filed with, or after the request for an RCE. Only a single request for prioritized examination based on this provision (that an RCE was or is being filed) may be granted in an application. The request for prioritized examination must be filed prior to the mailing of the first office action after the filing of the RCE. 

Note that the application must still meet the requirements for prioritized examination, including the fees and including having no more than 30 total claims and no more than 4 independent claims, and no multiple dependent claims.  An amendment adjusting the number of claims to meet this requirement can be filed with the Prioritized Examination request.

Please update your CFRs with the newly amended Rule 102. 

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