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USPTO guide

Request for continued examination (RCE)

By , Co-founder and CEO, PatentAssist.ai
Updated

The RCE is the most common way to keep arguing after a final rejection, and the most expensive habit in US prosecution if filed by reflex. It buys another round with the same examiner. This guide covers what 37 CFR 1.114 requires, the current fees, how an RCE affects patent term, the uses people forget (after allowance, during appeal), and when an appeal is the better buy.

Quick answer

  • What it needs: a submission plus the fee, filed while prosecution is closed and before the issue fee is paid or the application is abandoned (37 CFR 1.114).
  • Fees: $1,500 first, $2,860 for each later RCE (standard); 40% for small and 20% for micro entities.
  • After final: the submission must be a complete 1.111 reply, or the RCE does not stop the clock.
  • Term cost: time after the RCE does not count toward the 3-year pendency guarantee.
  • Versus appeal: RCE to change claims or add evidence; appeal when the examiner is wrong on the claims you have.

What the rule requires

35 U.S.C. 132(b) tells the USPTO to provide for continued examination at the applicant's request, and 37 CFR 1.114 sets the terms. Prosecution must be closed: the application is under appeal, or the last action is a final action, a notice of allowance, or another action that closes prosecution, such as an Ex parte Quayle action. You file a submission and the 1.17(e) fee 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; or
  • a notice of appeal to the Federal Circuit or a civil action under 35 U.S.C. 145 or 146, unless it is terminated.

A "submission" includes an IDS, an amendment to the description, claims or drawings, new arguments, or new evidence (1.114(c)). If a reply to an action is outstanding, as after a final rejection, the submission must meet the reply requirements of 1.111. An appeal brief or reply brief does not count. RCEs are not available for provisional or design applications, utility applications filed before June 8, 1995, reexamination, or a PCT application that has not complied with 35 U.S.C. 371 (1.114(e)). A national stage application that has entered under 371 can use one.

Improper RCEs do not stop the clock

Paying the fee is not enough. MPEP 706.07(h) says the request and fee alone "will not operate to toll the running of any time period" set in the last action. If the submission after a final rejection is not a bona fide attempt at a complete reply, the USPTO mails a Notice of Improper RCE and the application goes abandoned when the period expires. The MPEP's own example: an RCE after final whose only submission is an IDS. File the RCE with weeks to spare so a defect can be fixed within the period.

If you previously filed after-final amendments that were not entered, they can satisfy the submission requirement, but the MPEP encourages a fresh amendment with the RCE that incorporates every change you want, with an instruction not to enter the earlier ones. That avoids arguments about which version of a claim is live.

RCE fees: first, second and later

USPTO RCE and related fees by entity size
Fee Standard Small Micro
First RCE (1.17(e)(1)) $1,500 $600 $300
Second and each later RCE (1.17(e)(2)) $2,860 $1,144 $572
Prioritized examination with an RCE (1.17(c)) $4,515 $1,806 $903
Processing fee for that request (1.17(i)(1)) $150 $60 $30
Petition to withdraw from issue, if the issue fee is paid (1.17(h)) $150 $60 $30

Fees effective January 19, 2025, from the USPTO fee schedule (last revised August 14, 2026). More on entity status in USPTO patent fees.

The jump between the first and second RCE is deliberate, and it adds up. An application that goes through three RCEs at the standard rate pays $1,500 + $2,860 + $2,860 = $7,220 in RCE fees alone, against $3,440 for a notice of appeal and forwarding fee.

What happens after you file

A proper RCE withdraws the finality of the last action and the submission is entered and considered (1.114(d)). The application goes back to the examiner, who issues a new action. Three points surprise applicants:

  • The next action can be final. If the claims are the same as, or patentably indistinct from, those before the RCE and could have been finally rejected on the art of record, the first action may be final (MPEP 706.07(h), subsection VIII). An RCE that only repeats arguments invites this.
  • Your election still binds you. The invention examined before the RCE remains the elected one, so new claims to a different invention are withdrawn (MPEP 818.02(a); see restriction requirements).
  • A free IDS window opens. An IDS filed before the first action after the RCE needs no timing fee or statement (37 CFR 1.97(b)(4)). Use it to clear any foreign citations that arrived late; see the IDS guide.

If you need the next action fast, a single request for prioritized examination can be granted with or after an RCE, provided it is filed before the first action following the RCE (37 CFR 1.102(e)(2)). It costs $4,515 plus the $150 processing fee at the standard rate and counts against the annual Track One limit; details in our Track One guide.

RCE after allowance or during appeal

After a notice of allowance. An RCE reopens prosecution, typically to add claims or to have late-found art considered. Before the issue fee is paid, the RCE alone does it. After payment, you also need a petition to withdraw from issue under 37 CFR 1.313 ($150 standard). If the only goal is to have an IDS considered, try the USPTO's Quick Path IDS (QPIDS) program first. It requires a "conditional" RCE with the submission, but if the examiner finds nothing in the IDS that requires reopening, the RCE is not processed, its fee is returned, and a corrected notice of allowability issues.

During an appeal. An RCE filed after a notice of appeal but before the Board decides is treated as a request to withdraw the appeal and reopen prosecution (1.114(d)), even if the RCE turns out to be improper (MPEP 706.07(h), subsection X). After a Board decision, an RCE can still be filed within the 63 days for seeking court review, as long as no Federal Circuit appeal or civil action has been started. That is how applicants act on an affirmance that points to an allowable amendment.

Patent term adjustment

US patent term can be extended day for day for USPTO delay. Part of that, "B-delay," compensates for the USPTO taking more than 3 years from filing or national stage entry to issue the patent. Under 37 CFR 1.703(b)(1), the days from filing any RCE to the mailing of the notice of allowance are excluded. So an RCE filed in year 2 that leads to an allowance in year 4 can wipe out B-delay you would otherwise have earned. Time after the notice of allowance still counts.

An RCE filed after a notice of allowance also counts against you as applicant delay, from the day after the notice to the day the RCE is filed (1.704(c)(12)). The exception: an RCE whose only submission is an IDS, filed with a statement on form PTO/SB/133 that each item was first cited in a communication from a foreign or international office, or the USPTO, received no more than 30 days before (1.704(d)). The 30 days cannot be extended.

Appeals work the other way. Time at the Board is excluded from B-delay, but if the Board reverses, that time comes back as C-delay (37 CFR 1.702(e), 1.703(e)). For a commercially important patent where term matters, such as a drug or a long-lived platform technology, that difference can weigh toward appeal.

When an RCE beats an appeal, and when it does not

RCE compared with ex parte appeal
Question RCE Appeal
You need to amend the claims Yes, any amendment that meets 1.111 is entered Once the brief is filed, only cancelling claims or rewriting dependent claims in independent form (41.33(b))
You need new evidence (declaration, test data) Entered and considered Not allowed in the brief (41.37(c)(2))
Official cost to a decision $1,500 first, $2,860 after that $905 notice plus $2,535 forwarding fee if answered; $1,460 more for a hearing
Who decides The same examiner Three administrative patent judges
Patent term adjustment Time from the RCE to allowance does not count toward the 3-year guarantee Appeal time is credited if the Board reverses (1.702(e))
Typical outcome data The USPTO does not publish an RCE allowance rate FY 2026: 59.8% affirmed, 8.0% affirmed in part, 31.5% reversed

Appeal outcomes: PTAB appeal statistics, decisions in fiscal year 2026 (October 2025 to September 2026). Standard-rate fees.

The RCE wins when the path to allowance runs through a change: a narrower claim the examiner signalled in interview, a declaration of unexpected results, or a reference that has to be considered. It also wins on the first round, when it is cheapest and the examiner may simply need a better-framed argument. It loses when you are on the second or third RCE with the same examiner, the claims have not changed in substance, and the disagreement is about what a reference teaches. At that point another $2,860 buys the same answer, and an ex parte appeal puts the question to judges who reversed the examiner, fully or in part, in about 40% of FY 2026 decisions.

Worked example

A micro entity gets a final rejection under section 103. An interview shows the examiner would allow the claim if it recited the sensor placement described in paragraph [0042], which needs a new search, so it will not be entered after final. The applicant files an RCE ($300) with the amendment, and in the same filing an IDS for two references from a European search report received last week. Both are considered in the next action. Had the examiner instead refused any narrower claim and maintained that a reference teaches what it plainly does not, a notice of appeal ($181) with a pre-appeal request would have been the better first step. See options after a final rejection for the full menu.

Make the RCE count

An RCE works when it brings something new: a claim the art does not reach, or art the examiner has not seen. PatentAssist.ai's prior-art search over USPTO, EPO and Indian records helps you test a narrower claim against the art before you pay for another round. Its drafting app writes claims and specifications in USPTO format; it does not prepare office action replies or RCE submissions for US applications.

Test a claim against the art Try drafting free for 7 days

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Requests for continued examination: frequently asked questions

What is a request for continued examination (RCE)?

An RCE under 35 U.S.C. 132(b) and 37 CFR 1.114 reopens prosecution in an application where prosecution is closed, usually after a final rejection or a notice of allowance. You file a submission, such as an amendment, new arguments, new evidence or an IDS, and pay the fee. The finality is withdrawn and the examiner considers the submission.

How much does an RCE cost in 2026?

Under the fee schedule effective January 19, 2025: $1,500 for the first RCE and $2,860 for the second and each later one at the standard rate. Small entities pay $600 and $1,144; micro entities pay $300 and $572. Attorney fees for preparing the submission are extra.

When is the deadline to file an RCE?

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, or the filing of a Federal Circuit appeal or civil action. After a final rejection, the RCE and a 1.111-compliant submission must be filed within the period for reply, as extended.

Does an RCE affect patent term adjustment?

Yes. The time from filing an RCE until the notice of allowance is excluded from B-delay, the USPTO's guarantee of a patent within 3 years (37 CFR 1.703(b)(1)). An RCE filed after a notice of allowance also reduces term under 1.704(c)(12), unless it carries only an IDS and the 30-day statement under 1.704(d).

Can the first action after an RCE be final?

Yes. If all the claims are the same as, or patentably indistinct from, the claims before the RCE, and could have been finally rejected on the grounds and art of record, the first action after the RCE can be final (MPEP 706.07(h), subsection VIII). It cannot be final if it includes a new ground of rejection.

Is an RCE or an appeal better after a final rejection?

An RCE is better when you need to change the claims or add evidence, or when an interview showed the examiner will allow a narrower claim. An appeal is better when the claims are right and the disagreement is about the law or what a reference teaches. A second RCE costs nearly as much as taking an appeal to the Board.

Sources: 35 U.S.C. 132(b) (explained in our section 132 notes); 37 CFR 1.114, 1.17, 1.97, 1.102(e), 1.313, 1.702, 1.703, 1.704, 41.33 and 41.37 (eCFR, current to October 22, 2026); MPEP sections 706.07(h), 708.02(b) and 818.02(a); USPTO fee schedule (effective January 19, 2025, revised August 14, 2026); USPTO QPIDS program; PTAB appeal statistics through September 30, 2026. This guide is general information, not legal advice. Have a registered patent attorney or agent review your filing.