Key Takeaways

  • A Request for Continued Examination (RCE) allows an applicant to reopen patent prosecution after a final rejection without filing a new application.
  • RCEs are governed by 37 CFR §1.114 and are available only for nonprovisional utility or plant applications.
  • Filing an RCE can preserve an application’s priority date and keep it active for further examination or amendment.
  • Applicants should ensure that the RCE includes a complete submission—arguments, amendments, and the correct fee—to avoid dismissal.
  • Strategic use of RCEs can improve the likelihood of allowance, but excessive filings can lead to cost inefficiencies and delayed issuance.
  • After-final practice, such as pre-appeal or AFCP 2.0, may sometimes be more cost-effective alternatives to an RCE.
  • Applicants should carefully weigh the timing, cost, and scope of amendments before filing.

Request for Continued Examination: What is It?

Requests for Continued Examination (RCE) is a part of how to patent an idea and asks a patent examiner to review a patent application after the inventor has made necessary changes to an original application. It's one of the last steps in the patent application process.

When you file a patent application, you have two main chances for approval. If you receive a rejection the first time, you can fix the problems and send your application back. A second rejection is the Final Office Action.

To continue the patent application case, you might have to file an RCE. This reopens your case and allows the examination to continue.

After you file an RCE, the patent examiner might allow continued examination. Rather than granting an application, the examiner might issue an Office Action.

Understanding RCEs Under 37 CFR §1.114

A Request for Continued Examination (RCE) is a procedural mechanism under 37 CFR §1.114 that allows applicants to continue prosecution of a nonprovisional patent application after a final rejection. Rather than filing a new application, an RCE reopens examination of the same application before the U.S. Patent and Trademark Office (USPTO) examiner.

The RCE must include:

  • A request form (USPTO Form SB/30 or equivalent);
  • The required fee; and
  • A submission—either an amendment, new arguments, or evidence responsive to the final Office Action.

Filing an RCE withdraws the finality of the Office Action, permitting further consideration by the examiner. However, the application retains its original serial number and filing date, maintaining continuity within the same application family.

Reasons to Consider Filing a Request for Continued Examination

  • You've never received a final office action before

If your patent application record is pretty clean, applying for an RCE could be a smart choice. This is especially true if you want to make the amendments or arguments your patent examiner recommended.

  • You could save valuable time

If you need a patent now, you can't afford to waste time. Filing an RCE lets you save your original place in line. Starting the application process over with a new patent will push you to the back of the line.

  • You need to buy time

Filing a patent application includes a lot of back and forth with the patent officer. To get it approved, you might have to make major edits to your claims or description. Just because the patent examiner is ready to approve your patent doesn't mean you have to allow it, though. If you need more time to make sure the patent is sufficient, consider filing an RCE. Doing this keeps the application active while buying some time.

Strategic Advantages of an RCE

Filing a request for continued examination can be a strategic move for applicants who need additional time or flexibility. Some key advantages include:

  • Preservation of Priority: The RCE process keeps the original application alive, maintaining the priority date and avoiding the loss of earlier filing benefits.
  • Opportunity for Dialogue: It provides another chance to engage constructively with the examiner to clarify claim scope, respond to rejections, or submit new evidence (such as Rule 132 declarations).
  • Cost-Effective Compared to Continuations: Although RCEs require fees, they are often less expensive than filing a continuation application, which starts a new examination cycle.
  • Simplified Administrative Process: The same examiner usually handles the RCE, meaning they are already familiar with the invention’s record, which can accelerate resolution.
  • Potential for Expedited Review: Filing an RCE alongside a Request for Prioritized Examination can fast-track prosecution, leading to quicker patent issuance in qualifying cases.

Reasons to Consider Not Using a Request for Continued Examination

  • It isn't always necessary

A Final Office Action doesn't always close your case. You might not need an RCE to move forward. If you need to make minor changes to your patent application, an after-final response might be more effective.

  • It might not be an option

You can apply for RCEs for utility patent applications but not design patent applications. RCEs also don't apply to provisional patent applications.

  • You've already filed a request for continued examination

You can usually file several RCEs per application, but in some cases, additional RCEs might not help. Talk to the patent examiner to learn if this is a good idea.

Alternatives to an RCE

In some circumstances, an RCE may not be the best option. Alternatives include:

  • After Final Consideration Pilot Program 2.0 (AFCP 2.0): Applicants can submit a minor amendment after a final rejection. If the amendment addresses the examiner’s concerns, the case may be allowed without filing an RCE.
  • Pre-Appeal Brief Request for Review: When the applicant believes the rejection involves legal or procedural errors, a pre-appeal review panel may resolve the issue more efficiently.
  • Appeal to the Patent Trial and Appeal Board (PTAB): If substantive disagreement exists over the examiner’s rejections, appealing to the PTAB may be more effective than continued examination.

Applicants should discuss these options with their patent counsel to balance cost, likelihood of allowance, and procedural efficiency.

Deadline

You must file an RCE before your patent application is considered abandoned. Note the deadlines on any correspondence from your patent examiner. If you don't reply in time, you might accidentally abandon your application and limit your options.

You must also to file an RCE before a notice of appeal is filed with the U.S. Court of Appeals for the Federal Circult or before a civil action begins.

RCE Filing Requirements and Best Practices

A request for continued examination must be filed before the application is abandoned. This generally means before the reply period for a final Office Action expires—typically three months, extendable up to six months with fees.

Best practices for filing include:

  • Complete Submissions: Ensure your RCE includes an amendment or argument. Submitting an RCE without a substantive reply may delay action or result in dismissal.
  • Fee Verification: Confirm that the correct fee category (large, small, or micro entity) is indicated; incorrect fees can invalidate the filing.
  • Tracking Deadlines: Use the USPTO’s Patent Center or Private PAIR to monitor timing and ensure your RCE is acknowledged before abandonment.
  • Strategic Timing: Filing an RCE immediately after receiving a final rejection can preserve momentum in prosecution and maintain examiner familiarity.

Common Mistakes

  • Not addressing amendments sooner

Many applicants run into problems with patent descriptions and claims. Take the time to argue and amend these as early as possible. This will help prevent delays and could even prevent you from having to file an RCE.

  • Not considering your other options

An RCE isn't your only option to get a patent application approved. You might need to file an appeal or even start a new application. Talk with your patent examiner and your attorney. They'll help you decide on the right course of action.

  • Not weighing your costs

Filing an RCE is expensive. It costs even more if you have to file multiple RCEs or if you need to speed up the process. Consider whether filing a new application would be better for your bottom line.

  Large Business Fee Small Business Fee Individual Fee
First Request for Continued Examination $1,200 $600 $300
Second Request for Continued Examination $1,700 $850 $425
Request for Prioritized Examination $4,000 $2,000 $1,000

How to Strengthen Your RCE Filing

Patent practitioners recommend focusing on substance and clarity when filing an RCE. The most effective filings share several characteristics:

  • Targeted Amendments: Amend claims only where necessary to overcome rejections. Overly broad or unrelated amendments may prompt a new round of rejections.
  • Concise, Persuasive Arguments: Address examiner objections directly and reference relevant case law or prior USPTO guidance to support your position.
  • Avoiding “RCE Chains”: Filing multiple RCEs in succession without significant progress can be costly and may signal a weak prosecution strategy.
  • Documentation of Prior Interviews: Summarize examiner interviews or correspondence in your submission to demonstrate responsiveness and context.
  • Quality Claim Drafting: Poorly drafted claims lead to repetitive rejections; professional review can strengthen your position before refiling.

In complex cases, having a patent attorney experienced in USPTO practice can increase your chances of allowance and ensure procedural compliance. You can find skilled patent lawyers on UpCounsel’s marketplace to assist with your RCE strategy and filings.

Steps to File a Request for Continued Examination

1.     File a Request for Continued Examination Transmittal2.     Submit Correct Fees3.     Await a Response From Your Patent Examiner

Official responses typically include the following:

  • Continued Prosecution Application Treated as Continued Examination
  • Continued Examination After Final Rejection
  • Request for Continued Examination With Submission Filed Which is Not Fully Responsive
  • Action is Final, First Action Following Request for Continued Examination
  • Continued Examination After Allowance or Quayle Action
  • Continued Examination After Appeal but Before a Board Decision
  • Application on Appeal, Request for Continued Examination Without Submission or Fee; No Claims Allowed
  • Application on Appeal, Request for Continued Examination Without Submission; Claim Allowed
  • Application on Appeal, Request for Continued Examination Without Submission; Claim Allowed With Formal Matters Outstanding
  • Application on Appeal, Request for Continued Examination Without Fee; Claim Allowed
  • Application on Appeal, Request for Continued Examination Without Fee; Claim Allowed With Formal Matters Outstanding
  • Continued Examination After Board Decision but Before Further Appeal or Civil Action
  • After Board Decision but Before Further Appeal or Civil Action, Request for Continued Examination Without Submission or Fee

Frequently Asked Questions

  1. What is the difference between an RCE and a continuation application?
    An RCE reopens prosecution in the same application, while a continuation creates a new application with the same disclosure but new claims.
  2. Can I file multiple RCEs for the same application?
    Yes, multiple RCEs can be filed, but each requires new fees and should present substantive amendments or arguments to justify continued examination.
  3. How long does it take for the USPTO to act on an RCE?
    Timing varies but typically ranges from three to twelve months, depending on examiner workload and the complexity of amendments.
  4. Can I appeal a decision after filing an RCE?
    Yes. If prosecution continues after the RCE and the examiner maintains the rejection, you may appeal to the Patent Trial and Appeal Board (PTAB).
  5. Is an RCE available for design patent applications?
    No. Requests for Continued Examination are available only for utility and plant patent applications, not design or provisional filings.

If you need help filing a request for continued examination, you can post your question or concern on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.