Can a Notice of Allowability be issued after a final rejection?
Yes, a Notice of Allowability can be issued after a final rejection. The MPEP 1302.03 explicitly states:
“In all instances, both before and after final rejection, in which an application is placed in condition for allowance, applicant should be notified promptly of allowability of the claims by a Notice of Allowability PTOL-37.”
This means that if an applicant’s response to a final rejection overcomes all objections and rejections, or if the examiner determines that the application is in condition for allowance for any other reason, a Notice of Allowability can and should be issued. This can occur in various scenarios, such as:
- The applicant’s after-final response sufficiently addresses all issues
- An examiner’s amendment resolves remaining issues
- A successful interview leads to agreement on allowable subject matter
The key factor is not the stage of examination but whether the application has been placed in condition for allowance.
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