A Request for Continued Examination (RCE) is one of the most commonly used tools in U.S. patent prosecution after a final office action. When the USPTO issues a final rejection and you believe additional prosecution can overcome the examiner’s objections, an RCE allows you to reopen the examination process, make new arguments, amend your claims, and submit additional evidence. At PerspireIP, we file RCEs strategically as part of a broader prosecution plan. This guide explains everything you need to know about the request for continued examination process.
What Is a Request for Continued Examination?
A Request for Continued Examination is a formal filing submitted to the USPTO that reopens prosecution of a patent application after a final office action has been mailed or after a notice of allowance has been mailed. Under 37 C.F.R. 1.114, filing an RCE and paying the requisite fee causes the USPTO to withdraw the finality of the office action (or withdraw the notice of allowance) and reopen examination. This gives the applicant another full round of prosecution — another non-final office action — with the opportunity to present new arguments and amended claims.
RCEs are distinct from continuation applications: a continuation is a new application with a new serial number, while an RCE keeps the same application number and prosecution history. All prior amendments, arguments, and statements made during prosecution of the application remain part of the file history and may affect claim scope through prosecution history estoppel.
When Should You File an RCE?
The request for continued examination is the right choice in several situations:
- When you believe you can overcome the examiner’s rejection through additional claim amendments or arguments but need more prosecution rounds to reach agreement.
- When you want to submit new evidence — such as experimental data, expert declarations, or newly discovered prior art — that was not available at the time of your original response.
- When an examiner interview after the final office action has identified a clear path to allowance that requires formal claim amendments to implement.
- When the examiner has allowed some claims but you want to continue pursuing other claims that were finally rejected.
- When you need additional time to evaluate your prosecution strategy without allowing the application to go abandoned.
When Not to File an RCE
The request for continued examination is not always the best option after a final office action. Consider alternatives when the examiner’s rejection reflects a fundamental legal disagreement that is better resolved through appeal to the PTAB, when the prosecution history has become heavily burdened with unfavorable arguments that limit claim scope, when filing a continuation application with fresh claims would provide a cleaner path to a commercially valuable patent, or when the commercial value of the application no longer justifies the cost of continued prosecution.
How to File an RCE: Step by Step
Filing an RCE requires careful attention to procedural requirements to avoid inadvertent abandonment of the application.
Step 1: Prepare the RCE Submission
An RCE must be accompanied by a submission — typically a response to the final office action that includes claim amendments, arguments, or both. If you have no amendments to make and simply want to reopen prosecution, you may submit a statement that no amendments are being made. However, most RCEs include at least some claim amendments designed to narrow the claims in a way that overcomes the examiner’s rejection.
Step 2: Pay the RCE Fee
The RCE fee must be paid with the filing. Current fees (as of 2024) are approximately $1,300 for large entities, $650 for small entities, and $325 for micro entities. For a second or subsequent RCE in the same application, the fees are higher — approximately $1,900 for large entities, $950 for small entities. These increased fees for subsequent RCEs reflect the USPTO’s policy discouraging repeated RCEs without meaningful prosecution progress.
Step 3: File Before the Deadline
The RCE must be filed within the 6-month statutory response period for the final office action. Extensions of time are available within this period for additional fees. Filing after the 6-month deadline without a granted petition for revival of an abandoned application is not possible — the application will be abandoned. PerspireIP maintains rigorous docketing systems to ensure RCE deadlines are never missed.
What Happens After Filing an RCE?
After the USPTO receives your request for continued examination and fee, it will docket the application for further examination and issue a new non-final office action. This new office action gives you a fresh opportunity to respond. The examiner must consider your submission and may allow all or some claims, maintain rejections, or raise new grounds of rejection. The prosecution cycle then continues — you respond to the new non-final office action, potentially receive another final office action, and may file additional RCEs if warranted.
Impact of RCEs on Patent Term Adjustment
Filing an RCE has a significant negative impact on patent term adjustment. Under the PTA rules, any period of delay due to an RCE filing is attributed to the applicant and subtracted from the PTA calculation. This means that each RCE can reduce your ultimate patent term, potentially costing months of protection for high-value patents. For inventions in industries where patent term is commercially critical — particularly pharmaceuticals and medical devices — the patent term cost of filing an RCE should be factored into the decision.
RCE vs Appeal: Choosing the Right Path
The choice between filing an RCE and filing a Notice of Appeal is one of the most important strategic decisions in patent prosecution. RCEs are generally more appropriate when you believe you can reach agreement with the examiner through further negotiation and when the legal arguments supporting your position are uncertain. Appeals are more appropriate when the examiner’s rejection is legally flawed, when you have strong case law supporting your position, or when you want an independent review of the rejection by the PTAB rather than continued negotiation with the same examiner. In some cases, the right strategy is to appeal while simultaneously filing a continuation application to preserve prosecution flexibility.
How PerspireIP Manages RCE Prosecution
At PerspireIP, we treat every RCE filing as an opportunity to strategically advance your patent application toward allowance. Before recommending an RCE, we analyze the examiner’s final rejection, evaluate the strength of alternative arguments and amendments, assess the patent term cost of the RCE, and consider whether a continuation or appeal might better serve your interests. When we do file an RCE, we pair it with a carefully crafted submission that maximizes the likelihood of allowance in the next prosecution round.
Conclusion
The Request for Continued Examination is an indispensable tool in patent prosecution that allows applicants to continue pursuing patent protection after a final rejection. Used strategically, an RCE can bridge the gap between the examiner’s position and yours, resulting in an allowed patent with commercially valuable claims. PerspireIP has the expertise to evaluate whether an RCE is the right move for your application and to maximize your chances of allowance through skilled RCE prosecution. Contact us today to discuss your prosecution strategy.