Skip to content

USPTO guide

Information disclosure statements (IDS)

By , Co-founder, PatentAssist.ai
Updated

Every US applicant has a duty to tell the USPTO about information material to patentability. The IDS is how you do it, and the rules around it are mostly about timing: the same reference can be free to cite in month two, cost $280 in month ten, and require an RCE after allowance. Since January 2025 there is also a fee for size. This guide covers the duty, the windows and fees, the size fee, how to handle EPO search reports in a Euro-PCT family, the Therasense standard for inequitable conduct, and QPIDS.

Quick answer

  • Free window: 3 months from filing or national stage entry, or before the first action on the merits (37 CFR 1.97(b)).
  • Later: a 1.97(e) statement or the $280 timing fee; after final or allowance, both.
  • Size fee: crossing 50, 100 or 200 cumulative items costs $200, $500 or $800 in total, with no entity discount.
  • Foreign reports: cite within 3 months of the report's date to use the 1.97(e)(1) statement, and within 30 days to protect patent term.
  • No extensions: IDS periods cannot be extended under 1.136 (1.97(f)).

The duty of disclosure: 37 CFR 1.56

Rule 56 imposes a duty of candor and good faith on each inventor, each attorney or agent who prepares or prosecutes the application, and every other person substantively involved who is associated with the inventor, applicant or assignee. Those other people can satisfy it by telling the attorney, agent or inventor. The duty covers information "known to that individual to be material to patentability," lasts for each claim until it is cancelled or withdrawn or the application is abandoned, and is met if all known material information was cited by the USPTO or submitted under 1.97 and 1.98.

Information is material under 1.56(b) when it is not cumulative and it either establishes, alone or combined, a prima facie case of unpatentability of a claim, or refutes or is inconsistent with a position you take arguing patentability. Two points follow. First, your own arguments can make a reference material: if you tell the examiner no art shows feature X and you know of a paper that does, the paper must go in. Second, there is no duty to search. The rule covers what people know, and 1.97(g) says an IDS is not a representation that a search was made.

Rule 56 tells applicants to look carefully at two sources: "prior art cited in search reports of a foreign patent office in a counterpart application," and the closest art over which they believe the claims are patentable. For most international families, the first means EPO search reports, covered below.

Timing windows and fees

37 CFR 1.97 sets the windows. What you must add depends on when the IDS reaches the USPTO. The timing fee is the 1.17(p) fee, $280 standard, $112 small and $56 micro (fee schedule); the USPTO's forms now call it the "IDS timing fee."

IDS timing windows under 37 CFR 1.97
When the IDS is filed Rule What it needs to be considered
Within 3 months of filing, within 3 months of national stage entry, before the first action on the merits, or before the first action after an RCE 1.97(b) Nothing beyond a compliant IDS and the size fee assertion
After that, but before a final action, notice of allowance or other action closing prosecution 1.97(c) Either a 1.97(e) statement or the timing fee: $280 / $112 / $56
After a final action or notice of allowance, up to and including payment of the issue fee 1.97(d) Both a 1.97(e) statement and the $280 timing fee (standard)
After the issue fee is paid 1.97 does not apply QPIDS, or a petition to withdraw from issue plus an RCE, or a continuing application

The 1.97(e) statement, now called the "IDS timing statement," comes in two forms. Under (e)(1), each item was first cited in a communication from a foreign patent office in a counterpart foreign application no more than 3 months before the IDS. Under (e)(2), no item was cited by a foreign office and, after reasonable inquiry, no item was known to anyone with a duty of disclosure more than 3 months before. A late IDS that cannot use either statement can still go in during the 1.97(c) window by paying the fee. After a final action it needs both, so an item known for more than 3 months generally needs an RCE to be considered; filing an RCE reopens the free 1.97(b)(4) window.

An IDS filed with the timing fee during the 1.97(c) window has one more consequence: if the examiner relies on it for a new ground of rejection, the next action can still be made final (MPEP 706.07(a)). That is a reason to cite early, and it is covered in options after a final rejection.

What goes in the IDS

Under 37 CFR 1.98, the IDS contains a list, with US patents and US publications in a separate section, each page showing the application number, a column for the examiner's initials and an IDS heading. You supply a legible copy of each foreign patent and each non-patent publication, but not of US patents or publications. For non-English documents you add a concise explanation of relevance and any English translation already in the possession of someone with the duty. Since 2025, every IDS also needs the size fee assertion described next.

The IDS size fee (from January 19, 2025)

The FY 2025 fee rule added a fee for large disclosures. Any IDS filed on or after January 19, 2025 that takes the cumulative number of items you have cited in the application above a threshold owes the fee in 37 CFR 1.17(v). It applies to applications filed before that date too, counting the items cited before it.

IDS size fee tiers under 37 CFR 1.17(v)
Cumulative items cited Rule Fee (all entity sizes)
More than 50, up to 100 1.17(v)(1) $200
More than 100, up to 200 1.17(v)(2) $500, less any amount already paid
More than 200 1.17(v)(3) $800, less any amount already paid

The USPTO's quick reference guide settles the counting questions:

  • Every listing counts, including duplicates and US patents you do not have to copy. Citing the same article twice counts twice.
  • Items from third-party submissions, the examiner's own citations and items cited only in a parent do not count. Resubmit a parent's items in the child and they do.
  • An RCE does not reset the count. A continuation, divisional or CIP starts at zero.
  • Every IDS needs a written size fee assertion, either that the fee is enclosed (naming the tier) or that none is due. A general deposit account authorization is not enough. An IDS without the assertion is placed in the file and not considered.

In a continuing application you rarely need to recite the parent's art. Under MPEP 609.02, the examiner of a continuation, divisional or CIP considers information already considered in the parent; you resubmit only if you want it printed on the face of the new patent. Each resubmitted item then counts toward the size fee, so weigh the printed citation against the cost for large families.

EPO search reports in Euro-PCT families

A typical family: a first filing, then a PCT application with the EPO as International Searching Authority, then a US national stage and a European regional phase (a Euro-PCT application). The EPO's citations arrive at different times, and the US rules treat them differently.

  • The international search report. In the US national stage, the examiner considers US documents cited in the ISR and other ISR documents when the file shows copies were received, but they are not printed on the patent unless you list them on an IDS (MPEP 609.03). List them in your first IDS, inside the free 3-month window after national stage entry.
  • The PCT application is not a "counterpart." MPEP 609.04(b) says a PCT application designating the US is not a counterpart foreign application for the 1.97(e) statement. A late ISR citation cannot rely on (e)(1); you would need (e)(2) or the fee.
  • The European regional phase is. A European application claiming the same priority is a counterpart. A new citation in an EPO search report or examination communication starts a 3-month (e)(1) clock from the date on the communication, not the date your European attorney forwards it.
  • "First cited" means first. If a document was cited in a search report more than 3 months ago and is cited again in a later examination report, the (e)(1) statement is not available for it (MPEP 609.04(b)). English family members of a cited document can be listed and are treated as cited too.

Patent term has a shorter clock. An IDS that is filed after a reply, or with an RCE after allowance, can reduce patent term adjustment (37 CFR 1.704(c)(8), (c)(12)). The safe harbor in 1.704(d) requires a statement on form PTO/SB/133 that each item was first cited in a communication from a foreign or international office, or the USPTO, received by someone with the duty no more than 30 days before. The 30 days cannot be extended, and a 1.97(e) statement does not substitute for it.

Worked example

A US national stage is entered on February 2, 2026. On March 20 the applicant files an IDS listing the 9 ISR documents: no timing fee, no statement, and a size fee assertion that no fee is due. The European regional phase is in examination, and an EPO communication under Article 94(3) EPC dated June 10 cites two new documents. The first US office action has already issued. The applicant files a second IDS on July 1 with a 1.97(e)(1) statement (within 3 months) and the SB/133 statement for patent term, since July 1 is within 30 days of the communication. No timing fee is due. The cumulative count is 11, so still no size fee. Had the IDS gone in on October 1, the (e)(1) statement would no longer be available and the $280 fee would apply. For the EPO side of the family, see our European patent application guide.

Inequitable conduct after Therasense

The reason IDS practice is conservative is inequitable conduct: a finding renders every claim of the patent unenforceable, not only the claim affected (MPEP 2016). In Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276 (Fed. Cir. 2011), the en banc Federal Circuit tightened the test, saying the doctrine "has been overused to the detriment of the public." The accused infringer must prove both elements by clear and convincing evidence:

  • But-for materiality. Withheld art is material if the USPTO would not have allowed a claim had it known of the art, judged under the USPTO's own preponderance standard and broadest reasonable construction. The court declined to adopt Rule 56's broader definition.
  • Specific intent to deceive. The applicant knew of the reference, knew it was material, and deliberately withheld it. Intent must be "the single most reasonable inference able to be drawn from the evidence," and cannot be inferred from materiality alone. Courts may not trade a strong showing on one element for a weak one on the other.
  • The exception. Affirmative egregious misconduct, such as filing an unmistakably false affidavit, is material without proof of but-for materiality.

Therasense made the defense harder to win, not irrelevant. Rule 56 still sets the duty owed to the USPTO, and the cheapest protection is a docketed habit: every foreign office action and search report is checked for new citations and cited in the US within the windows above. Do not bury a key reference among hundreds of marginal ones; with the size fee, that is now expensive as well as unhelpful.

After the issue fee: QPIDS

Once the issue fee is paid, 1.97 no longer applies. The Quick Path Information Disclosure Statement program, now "fully implemented on a permanent basis," avoids a full RCE in most cases. Per the QPIDS FAQ (updated January 19, 2025), a submission must be filed electronically and include:

  1. a QPIDS transmittal such as form PTO/SB/09;
  2. an IDS with a 1.97(e) timing statement, the $280 timing fee, the size fee assertion and any size fee;
  3. a web-based petition to withdraw from issue under 37 CFR 1.313(c)(2), with the $150 1.17(h) fee (standard);
  4. an RCE with its fee, treated as conditional; and
  5. authority to charge a deposit account.

If the examiner decides nothing in the IDS requires reopening prosecution, the USPTO issues a corrected notice of allowability, the RCE is not processed and its fee is returned. If something does, the RCE is processed and prosecution reopens. If you cannot make a 1.97(e) statement, QPIDS is not available; the choice is a 1.313 petition with a real RCE, or express abandonment in favor of a continuing application.

Know the art before you draft

Rule 56 does not require a search, but the closest art is better found by you before filing than by an examiner or a European search division later. PatentAssist.ai's prior-art search covers USPTO, EPO and Indian records, and its drafting app writes claims and specifications in USPTO and EPO format, so you can draft around what you find. It does not prepare or file information disclosure statements.

Search EPO and US records Try drafting free for 7 days

New to searching? Start with our prior art search overview.

More USPTO guides

All guides, by patent office

Information disclosure statements: frequently asked questions

What is an information disclosure statement (IDS)?

An IDS is the filing an applicant uses to give the USPTO prior art and other information material to patentability, as the duty of disclosure in 37 CFR 1.56 requires. It is a list of the documents (usually on form PTO/SB/08) with copies of foreign patents and non-patent literature, filed under the timing rules of 37 CFR 1.97 and the content rules of 1.98.

When is an IDS due, and is there a fee?

There is no single deadline. An IDS filed within 3 months of filing or national stage entry, or before the first action on the merits, needs no timing fee. Later, before a final action or allowance, you need either a 1.97(e) statement or the $280 fee (standard). After a final action or allowance, up to issue fee payment, you need both. IDS deadlines cannot be extended.

What is the IDS size fee?

Since January 19, 2025, an IDS that takes the cumulative number of items you have cited in the application past 50, 100 or 200 owes a size fee under 37 CFR 1.17(v): $200, $500 or $800, less anything already paid. There is no small or micro entity discount. Every IDS must also include a written size fee assertion, or it is not considered.

Do I have to cite references from a European search report in my US application?

If a reference is material to patentability and not cumulative, yes: the duty of disclosure covers it, and 37 CFR 1.56(a) specifically encourages applicants to examine art cited in foreign search reports. File it within 3 months of the report's date so you can use the 1.97(e)(1) statement instead of paying the timing fee, or within 30 days to protect patent term adjustment.

What is the Therasense standard for inequitable conduct?

In Therasense v. Becton Dickinson (Fed. Cir. 2011, en banc), the court held that inequitable conduct needs clear and convincing proof of both but-for materiality (the USPTO would not have allowed the claim had it known of the reference) and a specific intent to deceive that is the single most reasonable inference from the evidence. Affirmative egregious misconduct, such as an unmistakably false affidavit, is material without the but-for test.

Can I file an IDS after paying the issue fee?

Not under 37 CFR 1.97. The usual route is the Quick Path IDS (QPIDS) program, now permanent: you file the IDS with a 1.97(e) statement and timing fee, a petition to withdraw from issue, and a conditional RCE. If the examiner finds nothing that requires reopening prosecution, a corrected notice of allowability issues and the RCE fee is returned.

Sources: 37 CFR 1.56, 1.97, 1.98, 1.17(p), 1.17(v), 1.313 and 1.704 (eCFR, current to October 22, 2026); MPEP sections 609 and 2016; USPTO fee schedule (effective January 19, 2025, revised August 14, 2026); FY 2025 fee rule; USPTO IDS size fee quick reference guide; QPIDS FAQ; Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276 (Fed. Cir. 2011) (en banc). This guide is general information, not legal advice. Have a registered patent attorney or agent review your disclosures.