Re-opening prosecution responsive to an appeal brief is a frustrating experience as discussed in a previous post. Normally, actions re-opening prosecution are made non-final. However, if an Examiner wants to try to be even more unfair to the applicant, it is possible to re-open prosecution with a final. According to MPEP 1207.04, the Office action issued when re-opening prosecution responsive to an appeal brief may be final when containing a new ground of rejection if the new ground of rejection was (A) necessitated by amendment, or (B) based on information presented in an information disclosure statement under 37 CFR 1.97(c) where no statement under 37 CFR 1.97(e) was filed. And remember, re-opening of prosecution responsive to an appeal brief still requires supervisory approval. MPEP 1207.04.

If you experience an improper re-opening, or an improper final rejection (e.g., containing a new ground of rejection that was not necessitated by amendment or IDS), then you can petition the Director. But remember the "gotcha" approach taken by the USPTO in response to improper final rejections (discussed here) -- you still have to act on the original deadlines.

Future posts will address some of these interelated issues and how to approach prosecution at the beginning to turn the tables on the Office.