This is the third article of a four part series on fast tracking prosecution through the US Patent Office, focusing of the First Action Interview program. In contrast to a Track 1 application, the First Action Interview program requires no extra fee, thus making it an appealing process to expedite examination.  Under the First Action Interview program, the examiner performs an initial search prior to any office action, and if the examiner determines that the claims are not yet allowable then a brief Pre-Interview Communication is completed that identifies particular references and rejection types. The applicant then conducts a first action interview with the patent examiner after reviewing the Pre-Interview Communication. That is, rather than initially receiving a full office action like a typical proceeding, the applicant and the examiner discuss the examiner’s initial findings before any first office action issues.

One benefit of this approach is that if agreement is reached during the first action interview that the patent application is allowable, then the examiner will go ahead and issue a notice of allowability.  However, if agreement is not able to be reached during the initial interview, the examiner may enter a First Action Interview Office Action which summarizes all rejections and objections along with the interview.  Alternatively, the applicant may request a waiver of the First Action Interview Office Action and instead submit a proposed amendment to address any issues identified by the examiner. Examination of the application then continues as it would for according to standard practice for a typical application.

There are several requirements to pursue a First Action Interview. First, there is a limit to the number of claims that may be filed. Specifically, an application must contain 3 or fewer independent claims and 20 or fewer total claims. Furthermore, a request to participate in the program must be filed at least 1 day before a first office action on the merits is entered.

There is not much currently information as to how much faster overall prosecution is under this program compared to normal application filings, however some evidence suggests that an allowance midpoint was reached approximately 5 months faster. Thus, it can be assumed that this program is slower than the Track 1 allowance program. There is evidence that the First Action Allowance rate is much higher than normal applications, at approximately twice the level of normal noncontinuing applications.