How does the USPTO count second or subsequent First Actions on the Merits (FAOM)?
The USPTO has a specific system for counting second or subsequent First Actions on the Merits (FAOM). According to MPEP 1705:
“A second/subsequent FAOM usually occurs when the first action is a mailed restriction/election action and the second action is an action on the merits. The USPTO’s automated data management system will automatically determine if it is a FAOM. If the second action is a FAOM the examiner will be credited for FAOM on the production report.”
This means that in cases where the first official action is a restriction or election requirement, which doesn’t address the merits of the application, the subsequent action that does address the merits is considered a FAOM. The automated system is designed to recognize this situation and credit the examiner appropriately.
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