A Request for Continued Examination, filed under 37 CFR 1.114, reopens a U.S. patent application after prosecution has closed. You pay a fee, submit new arguments, amendments, or evidence, and the examiner picks the case back up as if the final rejection or notice of allowance had not issued.1eCFR. 37 CFR 1.114 – Request for Continued Examination It is one of the most common tools for keeping a stalled application alive.
When You Can File
An RCE only becomes available after prosecution has formally closed. Under 37 CFR 1.114(b), that means the last office action was a final rejection, a notice of allowance, or another action closing prosecution, or the application is under appeal before the Patent Trial and Appeal Board.1eCFR. 37 CFR 1.114 – Request for Continued Examination If you still have the right to respond to a non-final office action, you file that response, not an RCE.
Three events close the window:
- Payment of the issue fee. After that, you need a granted petition under 37 CFR 1.313 to withdraw the application from issue before the office will process an RCE.
- Abandonment of the application, such as by missing a response deadline.
- Filing a notice of appeal to the U.S. Court of Appeals for the Federal Circuit under 35 U.S.C. 141, or starting a civil action under 35 U.S.C. 145 or 146, unless that appeal or action is terminated.1eCFR. 37 CFR 1.114 – Request for Continued Examination
A PTAB appeal does not cut off your ability to file. It counts as closed prosecution, which makes you eligible. If you file an RCE while a PTAB appeal is pending, the office treats it as a request to withdraw the appeal and return the case to the examiner.1eCFR. 37 CFR 1.114 – Request for Continued Examination That is a one-way door, so applicants close to a favorable PTAB decision should think hard before pulling the case back.
What the Submission Must Include
Every RCE needs a substantive “submission.” Under 37 CFR 1.114(c), that can be an information disclosure statement, a claim or specification amendment, new arguments, new evidence of patentability, or a drawing amendment.1eCFR. 37 CFR 1.114 – Request for Continued Examination
There is a trap. If a reply to a final office action is still outstanding when you file the RCE, the submission must meet the full reply requirements of 37 CFR 1.111, which means addressing every ground of rejection. An IDS alone does not qualify in that situation.2United States Patent and Trademark Office. Manual of Patent Examining Procedure Section 706 – Rejection of Claims
Appeal briefs and reply briefs never count as a submission. The rule explicitly excludes them, so you cannot recycle PTAB briefing to satisfy the RCE requirement.1eCFR. 37 CFR 1.114 – Request for Continued Examination
What It Costs
The fee depends on entity size and on whether it is your first RCE in the application or a later one. Under 37 CFR 1.17(e), the first RCE runs:
- Large entity: $1,500
- Small entity: $600
- Micro entity: $300
Second and later RCEs in the same application cost significantly more:3eCFR. 37 CFR 1.17 – Patent Application and Reexamination Processing Fees
- Large entity: $2,860
- Small entity: $1,144
- Micro entity: $572
The jump is deliberate; the office designed the escalation to discourage serial filings that clog the examination queue. If the correct fee is not included, the office treats the application as abandoned for nonpayment, so verify both the amount and your entity status before you submit.4United States Patent and Trademark Office. USPTO Fee Schedule
How to File
The standard route is Patent Center, the USPTO’s electronic filing system. You upload Form PTO/SB/30, the RCE transmittal form, along with your substantive submission as separate PDF attachments.5United States Patent and Trademark Office. Request for Continued Examination (RCE) Transmittal The form asks for the application number, filing date, and examiner name, and it lets you indicate what type of submission accompanies the request. Payment goes through the electronic payment system by credit card, deposit account, or other accepted method. The system generates an acknowledgment receipt on filing.
If you cannot file electronically, the transmittal form includes a certificate of mailing option. That establishes the filing date as the date you deposited the package with the postal service, which protects you if transit takes several days.
What Happens After You File
Once a valid RCE is processed, 37 CFR 1.114(d) requires the office to withdraw the finality of the previous action and enter your submission into the record.1eCFR. 37 CFR 1.114 – Request for Continued Examination The examiner reviews your new arguments, amended claims, or evidence as if prosecution were starting fresh. The application status updates in the office’s system, the case goes back on the examiner’s docket, and a new office action eventually issues.
The Patent Term Adjustment Cost
Filing an RCE can quietly shrink the enforceable life of your patent. Under 35 U.S.C. 154(b)(1)(B), if the office does not issue a patent within three years of the filing date, the term extends by one day for each day of delay past that mark. Time consumed by continued examination is excluded from that calculation.6Office of the Law Revision Counsel. 35 USC 154 – Contents and Term of Patent Every day the case spends in an RCE cycle is a day that does not count toward the three-year guarantee.
For applications already past the three-year mark, filing an RCE effectively stops the adjustment clock. Any accrued credit for office delay pauses the moment you file and does not resume until the examiner acts on your submission. If you then take more than three months to respond to any office action during RCE prosecution, that excess counts as applicant delay and further reduces your adjustment.6Office of the Law Revision Counsel. 35 USC 154 – Contents and Term of Patent For pharmaceutical and biotech patents where each month of term carries real value, this tradeoff deserves close analysis before filing.
RCE or Continuation Application
An RCE is not the only path when prosecution closes. A continuation application under 35 U.S.C. 120 is the main alternative, and the two work differently.
An RCE keeps the same application number, stays on the same examiner’s docket, and typically returns to active examination faster. It also costs less. A first RCE runs $1,500 for a large entity, while a continuation requires separate filing, search, and examination fees that together exceed that amount.4United States Patent and Trademark Office. USPTO Fee Schedule
A continuation is a new application claiming priority back to the original filing date. It gets a new application number and may land on a different examiner. The advantage is flexibility. You can let allowed claims issue as a patent while continuing to fight over the rejected ones in the continuation, and you can introduce entirely new claims. An RCE cannot do either, because everything stays in a single application. Splitting allowed and rejected claims, or broadening claim scope, calls for a continuation. Getting the examiner to reconsider the same claim set after you address the rejections is what the RCE is built for.
IDS Submissions and QPIDS
Getting an information disclosure statement in front of the examiner is one of the most common reasons to file an RCE. Under 37 CFR 1.97(b)(4), an IDS filed before the first office action after an RCE is automatically considered without any fee or certification statement.7United States Patent and Trademark Office. Manual of Patent Examining Procedure Section 609 – Information Disclosure Statement The window resets with each RCE.
If you need to submit an IDS after paying the issue fee, the Quick Path Information Disclosure Statement program offers a shortcut. You file the IDS together with a petition to withdraw from issue and an RCE. If the examiner reviews the references and concludes nothing requires reopening prosecution, the office issues a corrected notice of allowability and refunds the RCE fee automatically.8United States Patent and Trademark Office. Quick Path Information Disclosure Statement (QPIDS) The program is now permanent.
Requesting a Suspension of Action
You sometimes need to file an RCE to avoid abandonment but are not ready for the examiner to pick up the case. Under 37 CFR 1.103(c), you can request a suspension of action for up to three months when filing an RCE.9eCFR. 37 CFR 1.103 – Suspension of Action by the Office The request must be filed at the same time as the RCE, specify the length, and include the processing fee under 37 CFR 1.17(i): $150 large entity, $60 small entity, $30 micro entity.3eCFR. 37 CFR 1.17 – Patent Application and Reexamination Processing Fees Suspension time counts against you for patent term adjustment, since it is applicant-requested delay.
Applications That Cannot Use an RCE
Section 1.114(e) lists the categories excluded from the RCE process:1eCFR. 37 CFR 1.114 – Request for Continued Examination
- Provisional applications, which are never examined.
- Design patent applications. A design applicant facing a final rejection must file a continuation or appeal instead.
- International design applications.
- Utility or plant applications filed before June 8, 1995.
- International applications that have not properly entered the national stage under 35 U.S.C. 371.
- Patents under reexamination, which have their own response mechanisms.
If your application falls into one of these categories, the path forward after a final rejection is usually a continuation or an appeal to the PTAB. The choice turns on whether you need to submit new evidence and arguments (continuation) or believe the examiner is legally wrong on the existing record (appeal).