What is an RCE?

An RCE is a Request for Continued Examination. It is a request that can be made in a pending patent application to obtain continued examination on that application, rather than having to file a continuing application. An RCE is a tool that can be used to re-open examination after an application has received a final rejection and examination of the application has been closed. Filing an RCE requires payment of a fee, which is less than the initial filing fee, but still a considerable expense.

An RCE might be advisable if some claims in an application were allowed, and you want to avoid issuing those claims now and then filing a continuing application for the rejected claims, because of the increased fees associated with maintaining two patents. If that is the case, an RCE would be filed to try to argue the rejected claims and have them allowed with the other already-allowed claims. An RCE might be necessary if, after a notice of allowance has been issued and the issue fees have been paid, you become aware of art that must be disclosed in the case. There are other situations still in which an RCE may be appropriate.

To file an RCE, there must be at least several requirements met. First, prosecution must be closed. Prosecution is closed if the application has been appealed, if the most-recently issued Office Action is final, if a notice of allowance has been mailed, or if an advisory action or other type of action has been mailed which otherwise closes prosecution. Second, the RCE fee must be paid. The fee, at the time of this writing, is $1200 for large entities, $600 for small entities, and $300 for micro entities. Third, a submission must be made. The submission can be one of many things, depending on the status of the application. If a final Office Action was mailed last, for instance, a proper submission may be a response to that Office Action. Or if an Advisory Action refused to enter an amendment made after the final Office Action, the amendment could constitute a proper submission. Or, as another alternative, an information disclosure statement could be a proper submission, if for some reasons the normal methods for submitting an IDS are not available to the applicant.

An RCE can be a beneficial way to gain additional examination of an application with remaining issues that need to be cleared up. An RCE must be filed correctly, so it is recommended that you contact a patent attorney if you have questions or are considering filing one.