How does the USPTO count second or subsequent First Actions on the Merits (FAOM)?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

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.