What if you don't provide support for claim amendments? (Part III)

Earlier I posted about why I don't think Applicants are required to identify support in the specification when making claim amendments (here) and then about why I sometimes choose to do so anyway (here).

What can happen if you don't provide support for claim amendments?

You're definitely risking a rejection under §112 ¶1. (Either enablement or written description; Examiners seem to use them interchangeably.) If that happens, I bite the bullet and write a response to the rejection, in which I point to support in the specification. In this scenario, where I took a risk and lost, I don't see this as a high price to pay. It probably takes me about the same amount of time to respond to the rejection as it would to preemptively provide the information at the time of amendment. [For another blog post on the subject of responding to §112 enablement rejections, I recommend this Patentably Defined post here.]

You should also be aware of the possibility that something worse could happen. I've heard a few horror stories where the Examiner deemed a response to be "non-responsive" for not pointing to support for claim amendments. In such case, the MPEP gives the Examiner wide latitude on much trouble he/she can cause. (See MPEP 714.03.) Depending on now "serious" the Examiner finds your omission, and whether or not the Examiner finds your response to be "bona fide" or not, the Examiner may:

• note the deficiency and send out the Office Action again; 
• notify you of non-responsiveness and keep the clock running on the original statutory time period; or
• notify you of non-responsiveness and give you a new 1-month time period.