Request for Continued Examination

A Request for Continued Examination (RCE) is a procedural filing under 37 C.F.R. § 1.114 that reopens prosecution of a patent application after a final office action, a notice of allowance, or an action closing prosecution. It is not a new application — it continues prosecution of the same application with the same serial number, the same filing date, and the same claims (unless amended). To file an RCE, you must: (1) submit a request (usually on USPTO Form PTO/SB/30), (2) pay the applicable RCE fee, and (3) submit a submission — typically an amended claim set, a new information disclosure statement (IDS), or a statement of arguments. After the RCE is processed, the examiner issues a new non-final office action, and prosecution proceeds as if the application is starting its first substantive examination round. The key characteristic: unlike a continuation (which has a new serial number) or a continuation-in-part (which can add new matter), an RCE is filed within the same application number. An RCE cannot introduce new matter — the original specification controls. RCEs are governed by 37 C.F.R. § 1.114 and MPEP § 706.07(h).

You can file an RCE at the following times: (1) After a final office action — the most common scenario. Must be filed before the application abandons (within 6 months of the final action mailing date, with progressive extension fees for months 4-6). Filing before the 3-month period avoids extension fees. (2) After a Notice of Allowance — to add or amend claims, supplement the IDS, or make other changes before issue. (3) After an Action Closing Prosecution (ACP) in an Ex Parte Reexamination — functions similarly. You cannot file an RCE for design patent applications, provisional applications, or international applications that have not yet entered the national stage. After allowance, an RCE effectively withdraws the application from issue (and the issue fee, if already paid, can be refunded or credited). If the application has been appealed to PTAB, you can still file an RCE while the appeal is pending, which withdraws the appeal. This is sometimes done after an interview where the examiner indicates willingness to allow with specific amendments that are better addressed through prosecution than through the appeal.

An RCE is one of the most significant PTA-consuming events in patent prosecution. Under 35 U.S.C. § 154(b)(1)(C), PTA is reduced by any period of delay attributable to the applicant. The USPTO treats the period from the RCE filing date to the date the RCE is taken up for action as 'applicant delay,' which is subtracted from any PTA accrued. More significantly, under the USPTO's regulations, the entire period of RCE prosecution is typically excluded from PTA calculations. In practice: if you file an RCE and it takes 18 months to resolve, those 18 months generally do NOT add PTA even if the USPTO was slow in processing the RCE itself. For patents where the remaining term matters enormously — pharmaceutical patents, for example, where every additional day of exclusivity can be worth millions — the PTA impact of an RCE can be a significant factor in the appeal vs. RCE decision. By contrast, PTAB appeals that delay issuance due to PTAB's own processing time DO generate PTA under the 'B delay' provision (USPTO failing to issue a patent within 3 years of the actual U.S. filing date). This means a lengthy PTAB appeal, paradoxically, can produce significantly more PTA than filing an RCE that resolves quickly.

An RCE filing must include: (1) A completed request — typically USPTO Form PTO/SB/30 or an equivalent request. (2) The RCE fee — $900 small entity / $1,800 large entity for the first RCE in the application; $1,200 small / $2,400 large for the second and each subsequent RCE. Micro-entity rates are half the small entity rates. (3) A 'submission' — at least one of: a new information disclosure statement (IDS), a new or amended claim set, or a new set of arguments/remarks. A blank IDS (listing no references) satisfies this requirement; the submission requirement is essentially a formality to ensure the applicant is actively participating. Most practitioners file the RCE with amended claims and arguments, targeting the specific rejection. If you want to appeal to PTAB and file an RCE as a fallback, note that filing an RCE withdraws any pending appeal. Once the RCE is filed and processed, you receive a new filing receipt and the application returns to the examination queue. The examiner is not required to issue the next action as non-final — if the only amendment submitted narrows the claims in a way that does not change the basis of the rejection, the examiner can make the next action final.

There is no statutory limit on the number of RCEs you can file in a single application. However, after the second RCE, the examiner can make the next office action final even if the applicant presents new amendments or arguments that would normally require a non-final action (under MPEP § 706.07(h)). This means the practical cost of a third+ RCE is high: you restart prosecution but with fewer rights to a non-final action, pay increasing fees ($1,200/$2,400/$600 for small/large/micro entity on subsequent RCEs), and consume additional PTA. The USPTO has also increased oversight of applications with multiple RCEs — an application with 3+ RCEs may be identified for enhanced prosecution oversight. In practice, most prosecutors file one or two RCEs before deciding that an appeal, a continuation to pursue claims differently, or abandonment is the better path. If an examiner makes a final action on a second or subsequent RCE, your options remain the same as after any final: AFCP 2.0, PABC, another RCE, appeal, or continuation.