After Final Amendment Required Regardless of Examiner's Intent to Refuse Entry
According to an email message that was posted to members of the Yahoo Patent Law Practice Group and puported to come from Bob Spar, Director of the USPTO's Office of Patent Legal Administration:
Under current Office policy, if a continuation or RCE [Request for Continued Examination] is filed with an amendment, the first action may be a final rejection with a new ground of rejection if the changes made in the amendment justified the making of the new ground of rejection - unless the amendment was previously filed as an after final amendment, and it was not approved for entry with the reason given that it raises new issues.
While you may not agree with this, it is based on the premise that you should submit an after final amendment - as it may be acceptable to the examiner, and permit the case to be allowed.
You cannot just presume that the examiner will deny entry if you submit the AF [After Final] amdt [amendment], and, therefore, just not submit it.
While the examiner may have orally indicated that your proposed AF amendment, if filed, would (probably) be denied entry because of raising new issues, you should have submitted it anyway to get the official position of the examiner on it, and, if entry is denied as indicated because it raised new issues, then the examiner would not have been able to make the 1st
action in the RCE a final action.
I understand how you might feel that this policy is not correct -
and I will make sure your viewpoint is considered when we reevaluate our after final practice, and consider making revisions to it to make it more effective.