Read following commentary !
A Request for Continued Examination (RCE) is typically the procedural vehicle of choice at the end of a patent application when no claims have been allowed but the applicant still believes that claims should be allowed based on the disclosed invention. The trouble with this, however, is that there is an enormous RCE backlog that has nearly doubled over the past two years. Just several years ago it would take a patent examiner 2 to 3 months to pick up an RCE, but today in many Art Units the wait is well over 2 years, and for recently filed RCEs the wait could be 4 or more years.
In large part the RCE backlog is directly attributable to the fact that patent examiners now have RCEs placed on a special docket and they are supposed to only pick up a single RCE every other bi-week, which means they do only 13 RCEs a year. In fact, one of the questions raised for the focus sessions is directed to this point: “Was your after final practice impacted by the Office’s change to the order of examination of RCEs in November 2009?” The answer to that is a resounding YES! I hear from attorneys over and over again that RCE wait times exploded as a result of this reshuffling of the order of examination. That has been my experience as well.
The RCE problem could be fixed tomorrow if the USPTO wanted to fix it. Simply assign RCEs the way they had been handled previously. This lead to RCEs being picked up in about 2 to 3 months. Even if the USPTO wanted to tweak the way RCEs were formerly handled there is absolutely no reason for an RCE to be pending longer than 4 to 6 months.
Limiting the number of RCEs that can be worked on seems ridiculous and calculated to prevent the average time to allowance from dropping. If everyone is doing what they are supposed to do during prosecution the application should be close to allowance in the RCE stage. Not wrapping up those cases that are that close and allowing them to linger for 2 to 4 years seems almost unconscionable to me.
