How does the USPTO handle prior art exceptions after final rejection?
The USPTO gives special consideration to submissions concerning prior art exceptions even after a final rejection. As stated in MPEP 714.12:
Applicant’s submissions concerning the prior art exception under 35 U.S.C. 102(b)(2)(C) or prior art disqualification under pre-AIA 35 U.S.C. 103(c) are entitled to being considered even after a final rejection has been made.
If such a submission successfully overcomes the rejection, the USPTO should acknowledge this by modifying the status of the claims, potentially allowing them or reopening prosecution if necessary. However, applicants should be aware that failing to make these submissions earlier in the process may be considered a failure to engage in reasonable efforts to conclude prosecution, potentially affecting patent term adjustment.
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