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The examiner of one of the patent applications that I am prosecuting is not following the rules. First, he ignored a request for a preliminary interview. Then he made unwarranted objections, first to the claims and later to the specification, citing portions of the MPEP that were not applicable. Finally, he reopened prosecution without supervisory approval after I filed a notice of appeal followed by an appeal brief. (Approval by a supervisory examiner is required for reopening prosecution after appeal brief, according to MPEP 1207.04, which includes paragraph 12.187 to be used by the examiner; the examiner used the language in paragraph 12.187, but omitted the sentence "A Supervisory Patent Examiner (SPE) has approved of reopening prosecution by signing below:" and the SPE's signature.) In reopening prosecution, the examiner filed an office action with new grounds for rejection and cited additional patent literature. Prosecution had already been reopened once before, after a pre-appeal brief conference following an earlier notice of appeal.

I intend to respond to the office action, but I want to make sure that the examiner will not reopen prosecution again if I need to file a second appeal brief. What is the best way of achieving that?

More generally, what recourse do applicants have when examiners don't follow the rules?

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If the SPE doesn't help, call the ombudsman's office or the TC director.

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Call the examiner's supervisor (SPE).

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