Can an examiner make a communication final when dealing with a non-responsive amendment?

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.

Yes, an examiner can make a communication final when dealing with a non-responsive amendment, if appropriate. The MPEP 714.05 states:

“If appropriate, the examiner may make the next Office action final.”

This means that if the circumstances warrant it, the examiner has the discretion to issue a final Office action in response to a non-responsive amendment. However, this decision should be made carefully, considering factors such as:

• The extent of the non-responsiveness
• The overall prosecution history
• Whether making the action final would advance prosecution

It’s important to note that making an action final limits the applicant’s ability to further amend the application without filing a Request for Continued Examination (RCE) or appealing the decision.