When can a first Office action be made final in a continuing application?

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.

A first Office action can be made final in a continuing application when:

• The new application is a continuing application of, or a substitute for, an earlier application, and
• All claims of the new application are either identical to or patentably indistinct from the claims in the earlier application, and
• The claims would have been properly finally rejected on the grounds and art of record in the next Office action if they had been entered in the earlier application.

As stated in MPEP 706.07(b): “The claims of a new application may be finally rejected in the first Office action in those situations where (A) the new application is a continuing application of, or a substitute for, an earlier application, and (B) all claims of the new application (1) are either identical to or patentably indistinct from the claims in the earlier application […], and (2) would have been properly finally rejected on the grounds and art of record in the next Office action if they had been entered in the earlier application.”