What is a Request for Continued Examination?
How an RCE reopens a finally rejected application, when it beats an appeal or a continuation, and what it does to patent term adjustment.
Definition
A request for continued examination (RCE) is a filing under 35 U.S.C. § 132(b) that withdraws the finality of a final office action and reopens prosecution of the same US application, so the applicant can submit further amendments, arguments, or evidence for the examiner to consider.
Key Facts
- Statute: 35 U.S.C. § 132(b) and 37 C.F.R. § 1.114
- When available: After prosecution is closed, typically after a final office action, a notice of allowance, or an appeal
- Deadline: Must be filed before the application is abandoned, so within the same six-month window as the final action response, and before the issue fee is paid if filed after allowance
- Fee: The second and every later RCE in the same application costs roughly twice the first one
- Effect on term: Time after an RCE is filed no longer counts toward the three-year pendency guarantee in patent term adjustment
What an RCE Must Include
An RCE is only effective if it is accompanied by a submission: an amendment, new arguments, new evidence such as a declaration, or an information disclosure statement. Filing the fee alone is not enough. If a response was already filed after final and not entered, that response can serve as the submission.
RCE vs Appeal vs Continuation
- RCE: Same application, same examiner, same claims as amended. Fastest way to get new amendments considered. The examiner picks the case up as a special new case.
- Appeal: Keeps the claims as they stand and asks the Patent Trial and Appeal Board to review the rejection. Better when the disagreement is legal rather than about claim wording.
- Continuation: A new application with the same specification. Used when the applicant wants different claims, a new examiner is not guaranteed, and the parent is about to issue.
Many applicants use a pre-appeal brief conference or an examiner interview before committing to any of the three.
Why RCE Counts Matter to Portfolio Managers
RCE frequency is a leading indicator of prosecution cost. Each RCE typically adds a year or more of pendency and another round of attorney time. Prosecution analytics that compare RCE rates by examiner, art unit, and outside counsel show where a second RCE is habitually filed when an interview or appeal would have resolved the case sooner.
Frequently Asked Questions
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When should you file an RCE instead of appealing?
File an RCE when you are willing to amend the claims or add evidence and want the same examiner to consider it. Appeal when the claims are where you want them and the dispute is over how the examiner read the art or the law.
How many RCEs can you file?
There is no statutory limit. In practice the fee for the second and subsequent RCEs is about double the first, and each one signals to the examiner that the applicant will keep paying rather than appeal.
Does an RCE reduce patent term?
Indirectly. The days after an RCE is filed are excluded from the B-delay calculation, which is the part of patent term adjustment that compensates for pendency beyond three years. The RCE itself does not shorten the statutory 20-year term.
What is the deadline for filing an RCE after a final office action?
The RCE must be filed before the application is abandoned, which means within the six-month statutory period from the final action mailing date, with extension fees for any month beyond the shortened period.
Can you file an RCE after a notice of allowance?
Yes, as long as the issue fee has not yet been paid. This is commonly done to get a late-discovered reference considered through an information disclosure statement.
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