Although entry of any amendments after final rejection has always be discretionary with Examiners, for pretty much my entire career, I have had good luck continuing prosecution after final rejection – sometimes filing multiple Rule 116 amendments or making multiple calls – not really interviews – to the Examiner. I have found most Examiners willing to “continue talking” after final, and even to grant formal interviews – particularly if it is the first one in the application.
Now the PTO has formalized “Let’s Make A Deal” which is a set of guidelines that, cautiously, encourages Examiners to continue to consider post-final amendment, even if it requires some – but not too much – further consideration. Let’s hope this will lead to a more productive, less adversarial relationship, between prosecutors and Examiners, so that applicants feel less “forced” to simply give up and file an RCE. I continue to believe that the backlog would noticeably shrink if Examiners were required to pick up the phone after receiving a Rule 116 Amendment, and not just print out the “standard” Advisory Action refusing to enter the amendment.