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How to File a Request for Continued Examination (RCE)

April 26, 2026 Aruna 12 min read
rce fee — intellectual property law and protection

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.

The Rules Behind a Request for Continued Examination

The authority comes from 35 U.S.C. 132(b), which directs the USPTO to prescribe regulations providing for the continued examination of an application at the applicant’s request. The regulation that does the work is 37 CFR 1.114, and reading it closely answers most of the questions that come up in practice.

Three points matter most. First, a request for continued examination is not a new application. The application number, the filing date and the priority chain all survive, which is the single biggest practical difference between an RCE and a continuation filed under 37 CFR 1.53(b). Second, the rule requires a submission as well as a fee — and 37 CFR 1.114(c) defines that submission broadly, as an information disclosure statement, an amendment to the claims or specification, new arguments, or new evidence. A fee with nothing attached does not reopen prosecution. Third, no new matter may be added, because the application is the same application.

Timing is governed by 37 CFR 1.114(a), which requires the RCE to be filed before the earliest of:

  • Payment of the issue fee, unless a petition to withdraw from issue under 37 CFR 1.313 is granted
  • Abandonment of the application
  • The filing of a notice of appeal to the Federal Circuit under 35 U.S.C. 141, or commencement of a civil action under 35 U.S.C. 145 or 146

Note what is not on that list: a notice of appeal to the PTAB. An RCE filed while a board appeal is pending is treated as a request to withdraw the appeal and return the application to the examiner, which is a legitimate strategy when a late-breaking reference or a new claim set makes the appeal less attractive than another round of examination.

Filing the request for continued examination withdraws the finality of the outstanding action. The examiner takes up the application again, and any amendment filed with the RCE is entered as a matter of right rather than at the examiner’s discretion under 37 CFR 1.116.

What a Request for Continued Examination Costs

RCE fees escalate deliberately, because the USPTO wants to discourage applications that cycle indefinitely. Under the fee schedule that took effect on 19 January 2025, the undiscounted (large entity) fees are:

  • First RCE in an application — $1,500, up from $1,360
  • Second and each subsequent RCE — $2,860, up from $2,000, a 43% increase

Small and micro entity discounts apply to both tiers, and fees are revised periodically, so confirm the current figure on the USPTO fee schedule before filing. The structural point survives any particular number: the second RCE costs roughly twice the first, and a third costs the same as the second.

That escalation should shape strategy rather than merely the budget. If an application is heading for a second request for continued examination, the honest question is whether another round of examination will actually change the examiner’s position. Where the disagreement is legal rather than evidentiary — claim construction, or the reach of a reference — an appeal is often both cheaper and more likely to resolve it. Where the disagreement is evidentiary, and a declaration or new data will answer it, the RCE earns its fee.

The fee must accompany the request. An RCE filed without the fee, or without a proper submission, does not reopen prosecution, and the underlying reply period continues to run toward abandonment.

After-Final Practice Since AFCP 2.0 Ended

For eleven years the After Final Consideration Pilot Program 2.0 gave applicants a way to have a modest after-final amendment considered without paying for an RCE. The USPTO let it expire: 14 December 2024 was the last day to file an AFCP 2.0 request. A proposal to fund the programme through a participation fee had been put to the public and rejected, and the office ended it rather than absorb the cost.

Its disappearance changes the economics of after-final practice, because the cheap middle option is gone. What remains after a final rejection is:

  1. An amendment under 37 CFR 1.116 — entered only at the examiner’s discretion, and generally only if it places the application in condition for allowance or in better form for appeal
  2. An examiner interview — still free, still the most underused tool in prosecution, and now proportionally more valuable
  3. A pre-appeal brief request for review, filed with a notice of appeal, which puts the rejection before a panel before the cost of a full brief
  4. A notice of appeal to the PTAB
  5. A request for continued examination, which reopens prosecution outright

In practice the decision now arrives earlier and with less cushioning. Where an amendment is small and clearly allowable, an interview plus a 1.116 amendment is still worth attempting first. Where the amendment is substantive enough that an examiner would have needed AFCP time to consider it, that route no longer exists, and the realistic choice is between an RCE and an appeal.

One consequence worth docketing: because a 1.116 amendment may simply be refused entry, filing it late in the shortened statutory period can leave no time to file the RCE before the application goes abandoned. Build the fallback into the deadline rather than the hope.

RCE vs Continuation vs Divisional: Which Filing Fits

Three filings reopen or extend examination, and they are not interchangeable. Choosing the wrong one costs either money or claim scope.

  • An RCE keeps the same application. Same serial number, same filing date, same file wrapper, and in the ordinary case the same examiner. Use it when the claims are close and the remaining dispute is evidentiary — a declaration, new data, or an amendment the examiner has signalled would be allowable
  • A continuation under 37 CFR 1.53(b) is a genuinely new application claiming benefit of the parent under 35 U.S.C. 120. It must be filed while the parent is still pending, and it gets its own serial number and its own place in the queue. Use it when you want to pursue a materially different claim scope while allowing the parent to issue
  • A divisional is a continuing application directed to an invention carved out by a restriction requirement. Its distinguishing advantage is the safe harbour in 35 U.S.C. 121: where the divisional is filed as a result of a restriction requirement, the parent patent cannot be used as a reference against it for double patenting

The decision usually turns on one question: do you want this application to issue now? If a set of allowable claims is on the table and the argument concerns broader scope, taking the allowance and filing a continuation captures value immediately and keeps the fight alive. Filing an RCE instead delays the grant of claims you could already have.

There is a patent term dimension too. A continuation is a new application with its own prosecution clock, but its twenty-year term still runs from the earliest non-provisional filing date in the chain, so a long chain of continuations steadily erodes the enforceable life of the later patents. Repeated RCEs erode term in a different way, through the patent term adjustment deduction discussed above.

A practical sequencing that works in most families: interview first, amend under 37 CFR 1.116 if the change is small, take the allowance when it comes, and use a continuation rather than a second RCE when the remaining disagreement is about scope rather than proof. Reserve the appeal for the cases where the examiner’s legal position, not the evidence, is the obstacle.

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.