Can an examiner make a rejection final after a first Office action on the merits?
Generally, an examiner cannot make a rejection final after a first Office action on the merits. However, there are exceptions to this rule. According to MPEP 706.07:
‘Under present practice, second or any subsequent actions on the merits shall be final, except where the examiner introduces a new ground of rejection that is neither necessitated by applicant’s amendment of the claims nor based on information submitted in an information disclosure statement filed during the period set forth in 37 CFR 1.97(c) with the fee set forth in 37 CFR 1.17(p).’
This means that in most cases, a final rejection can only be made after the second or subsequent actions on the merits, unless specific conditions are met.
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