Failing to take note and respond

Often patent practitioners get lulled into complacency by the monotony of responding to rejections even when the Patent Office examiner simply fails to consider an argument/amendment. Failures like this by the Office are especially likely when the practitioner strategically uses layers of amendments

But, pay attention as there is gold in them Final rejections that simply fail to respond to an amendment/argument, even it is is just one single point buried in dependent claim 24. Specifically, Section 707.07(f) of the MPEP instructs that:

Where the applicant traverses any rejection, the examiner should, if he or she repeats the rejection, take note of the applicant’s argument and answer the substance of it.

So, if you receive a final rejection that fails to answer the substance of, or even take note of, Applicant’s arguments and amendments in support of even just one little feature in a dependent claim, then the Office has violated Section 707.07(f) of the MPEP.  As a result, you can petition and request that the action be treated as non-final, thus saving an RCE. But remember, you must file the petition within 2 months of the mailing of the final rejection, and you must file a substantive response by the 3 month date assuming that you will win the petition (as you likely will not have the decision by that point).  

Often this approach forces the Examiner to give more complete consideration to your amendments/arguments and so often you will receive a notice of allowance and then a dismissal of your petition as moot. That is a perfectly acceptable outcome since it enabled the savings of an RCE fee and further prosecution costs.