Change In USPTO Processing Of RCEs Likely To Significantly Delay Prosecution

On November 15, 2009, the USPTO will implement a critical revision to internal procedures that places newly filed requests for continued examination (RCEs) on an examiner's "special new" docket instead of his/her "amended" docket. This change, coupled with vaunted overhauls to the USPTO's count system (which is used to assess examiner productivity) that will give examiners less credit for examining RCEs, could result in significant prosecution delays after an RCE is filed.

Currently, with RCEs docketed on the "amended" docket, examiners must act on an RCE within two months of its appearance on the examiner's docket. Thus, an RCE is treated like any other response and does not significantly delay prosecution. Further, under the current count system, examiners earn 1.0 count for the first office action in response to an RCE, while final and subsequent office actions do not earn any counts. Thus, the current count system incentivizes the prompt examination of RCEs