The AFCP 2.0 program has few downsides, and is generally seen as a useful tool for patent applicants and the USPTO to move cases forward without the costs of an RCE. This not only save the applicant money and time, but also saves USPTO resources by reducing Office actions and all of the administrative burden associated with them. There are of course limitations to the program, and often examiners are of the opinion that the limited time available is not sufficient to complete necessary searching and so the request is denied. The details of the program have been covered in many forums and so today we are not focusing the basic mechanics of the AFCP 2.0 request.
Rather, this post points out that if you happen to have a less receptive examiner to such AFCP requests, there are some instances where the applicant can successfully insist that the request be considered (or re-considered as the case may be). Specifically, some examiners seem to deny requests at higher rates than others, and sometimes examiners are denying requests for improper reasons. While you cannot do much to challenge an examiner for asserting that a particular amendment requires too much searching as a general rule, there are ways to challenge an improper AFCP 2.0 request denial.
One example is where the final rejection has no prior art rejections (e.g., for a dependent claim) but does have some 112 rejections. If the applicant files an AFCP 2.0 request and rolls the dependent claim into the independent claim and further amends the claim to address the 112 rejection, but the examiner refuses entry under the allegation that the amendment requires more searching, then there is a problem. While it is conceivable that the 112 amendment changed the scope in some substantial way (e.g., broadened the scope) then it may be true that searching is required. However, if the 112 amendment clarified the scope and/or narrowed the scope, then there cannot logically be any need for further searching (as the Final rejection should have been complete). In such cases, a call to the examiner and/or supervisor might be the easiest and quickest way to have the AFCP 2.0 properly considered (or re-considered). Alternatively, the applicant may have to resort to a petition (but this can be problematic as it may not be decided in sufficient time to avoid extensions of time).
So, make full use of the AFCP 2.0 program and do not let examiners ignore proper requests for improper reasons.