Appeal on non-final plus amend claims

[Robert K S]

BTW, so far I haven't implemented my weird strategy. Too much uncertainty.

If by this you mean filing your notice of appeal after NFR and not bothering with a response after final but instead traversing any new arguments from the examiner's final rejection in your appeal brief, this is pretty routine, especially when a case has been yanked back from appeal a couple of times.

What I want to know is, how many times after a case gets yanked from appeal without a decision from the board does the whole process become inequitable for the applicant, and whereupon it should become a case for the federal courts.  The PTO should not be entitled to lock a docket into perpetual prosecution, under 35 U.S.C. 131.

[Isaac]

But I would still be saving calendar time and [some] client money by not *responding* to the OA.

I see.  I agree that your hypo is distinguishable from Haney.

Your hypo time frame makes some assumptions about when that FOA would appear.   Since your amendment does not respond to the OA, isn't it possible (and perhaps likely) that you won't get anything back from the PTO addressing your amendment until after examiner sees your appeal brief?  If so, that would chew up any time savings and possibly require you to file a reply brief.