An information disclosure statement (IDS) is the document a patent applicant files at the USPTO to list the prior art and other information that may affect whether the claims can be granted. It is the practical way of meeting the duty of disclosure, which applies to every US patent application from filing until grant.
Most problems with an IDS come from timing and counting. An IDS filed without the statement or fee required for its timing window is placed in the file but not considered. Since 19 January 2025, an application that cites more than 50 items also attracts an IDS size fee, and every IDS needs a written statement about that fee.
This guide covers what an IDS must contain, when it has to be filed, what the IDS fees are in 2026 and which mistakes cause the most trouble.
What is an information disclosure statement?
An information disclosure statement is a list of patents, publications and other information that an applicant submits to the USPTO during examination. It tells the examiner about material the applicant knows of that may be relevant to patentability. The examiner considers the listed items and records that on the file, and the cited references are printed on the granted patent.
Filing an IDS is not an admission that the listed items are material to patentability. The rules say this expressly in 37 CFR 1.97(h).
The duty of disclosure behind the IDS
The IDS exists because of 37 CFR 1.56, which places a duty of candour and good faith on everyone involved in filing and prosecuting a US application. The duty includes disclosing all information known to be material to patentability.
The duty applies to each named inventor and to each attorney or agent who prepares or prosecutes the application. It also applies to every other person who is substantively involved in preparing or prosecuting the application. That person must be associated with the inventor, the applicant, an assignee or anyone to whom there is an obligation to assign the application. It is a personal duty, so a company as such does not hold it, but its employees who work on the application do.
What counts as material information
Information is material when it is not cumulative to what is already on the record and it meets one of two tests. Either it establishes, alone or with other information, a prima facie case that a claim is unpatentable, or it is inconsistent with a position the applicant takes when opposing a rejection or arguing for patentability. In practice the usual sources of such information are:
- search reports and office actions from foreign counterpart applications;
- Office actions and cited art in related US applications;
- prior art known to the inventors, such as their own earlier papers and competitor products;
- documents that come up in litigation or licensing discussions about the same technology.
The duty lasts until the patent is granted or the application is abandoned. However, it does not include a duty to search, and under 37 CFR 1.97(g) filing an IDS does not mean that a patentability search was carried out.
What happens when the duty is breached
The rule states that no patent will be granted where the duty was violated through bad faith or intentional misconduct. After grant, a court can hold the whole patent unenforceable for inequitable conduct. Since the Federal Circuit’s 2011 en banc decision in Therasense v. Becton Dickinson, the challenger generally has to prove two things by clear and convincing evidence. The first is that the Office would not have allowed a claim had it known of the withheld reference, and the second is a specific intent to deceive. The court kept an exception to the first requirement for affirmative egregious misconduct, such as filing a false affidavit.
Disclosure also has a benefit. Prior art that the examiner has considered is generally harder for a challenger to rely on later, a point covered in the guide to patent invalidity searches.
What an information disclosure statement must contain
The content requirements are in 37 CFR 1.98, and a compliant IDS has four parts.
- A list of the items. US patents and US published applications are listed separately from foreign patents and non-patent literature (NPL). Most applicants use the USPTO form PTO/SB/08. The list identifies each US patent by number, inventor and issue date. Each foreign document needs the country, the number and the publication date. Each publication needs the publisher, the author (if any), the title, the relevant pages, the date and the place of publication.
- Legible copies. Copies are required for foreign patent documents and for NPL. No copy is needed for US patents and US published applications.
- A concise explanation of relevance for every item that is not in English. An English abstract can serve as the explanation. So can an English-language search report that states how relevant the document is. If anyone under the duty of disclosure holds a written English translation, or one is readily available to them, a copy has to be filed as well.
- An IDS size fee assertion. Every IDS filed on or after 19 January 2025 must state either that no IDS size fee is required or that the fee for a named tier is being paid.
An information disclosure statement that misses any of these is placed in the file but not considered. The examiner shows which items were considered by initialling the list, and draws a line through any item that was not.
When to file an IDS: the four timing windows
37 CFR 1.97 sets out when an information disclosure statement will be considered. What the applicant has to add to the IDS depends on the stage of examination.
| Window | When it applies | What must accompany the IDS |
|---|---|---|
| 1 | Any one of these: within three months of the US filing date or national stage entry; before the first Office action on the merits; before the first action after a request for continued examination (RCE) | Nothing extra |
| 2 | After window 1, but before a final Office action, a notice of allowance or another action that closes prosecution | A timing statement under 37 CFR 1.97(e), or the timing fee |
| 3 | After a final action or notice of allowance, up to payment of the issue fee | The timing statement and the timing fee |
| 4 | After the issue fee is paid | Not considered, unless the QPIDS programme is used or the application is withdrawn from issue with an RCE (see below) |
These periods cannot be extended, and an extension of time bought for an Office action response does not move an IDS deadline.
The three-month timing statement
The timing statement is a certification, and it comes in two forms. The first says that each item was first cited by a foreign patent office in a counterpart application no more than three months before the IDS was filed. The second says that no item was cited in a communication from a foreign patent office in a counterpart application. It adds that, to the knowledge of the person signing after reasonable inquiry, nobody under the duty of disclosure knew of any item more than three months before the IDS was filed.
The three months run from the date on each foreign search report or office action, not from the date it is received. A reference first cited in an EPO communication dated 1 March therefore has to be filed at the USPTO by 1 June if the applicant wants to rely on the statement. If that date is missed in window 3, the IDS will not be considered unless the applicant files an RCE.
After the issue fee
Once the issue fee is paid, the normal route is closed. The applicant can petition to withdraw the application from issue and file an RCE, or use the USPTO’s Quick Path IDS (QPIDS) programme, which is now permanent.
A QPIDS submission is filed electronically and has several parts: the QPIDS transmittal form (PTO/SB/09), a petition to withdraw the application from issue with the petition fee, and an RCE with the RCE fee. The Office treats the RCE as conditional and processes it only if the examiner decides that the new items require prosecution to be reopened. If they do not, the Office issues a corrected notice of allowability and the patent proceeds to grant. The RCE fee is then returned, but the petition fee is not.
The IDS in a QPIDS submission still needs the timing statement, the timing fee and the size fee assertion. QPIDS is therefore not available for a reference that has been known for more than three months.
IDS fees in 2026
Two separate fees can apply to an information disclosure statement, and one IDS can attract both. The amounts below are from the USPTO fee schedule as checked in October 2026. They were set by the fee rule that took effect on 19 January 2025.
| Fee | When it is due | Large entity | Small entity | Micro entity |
|---|---|---|---|---|
| IDS timing fee, 37 CFR 1.17(p) | Window 2 without a timing statement; always in window 3 | USD 280 | USD 112 | USD 56 |
| IDS size fee, more than 50 items | When the cumulative count first passes 50 | USD 200 | USD 200 | USD 200 |
| IDS size fee, more than 100 items | When the cumulative count first passes 100 | USD 500, less any size fee already paid | Same | Same |
| IDS size fee, more than 200 items | When the cumulative count first passes 200 | USD 800, less any size fee already paid | Same | Same |
There is no small or micro entity discount on the size fee.
A late citation can cost more than these amounts. If an IDS cannot be filed in window 3, the fallback is an RCE. A first RCE costs USD 1,500 for a large entity, and a second or later RCE costs USD 2,860.
How the IDS size fee count works
The count is cumulative for the application: it starts at zero on filing and runs until the patent issues. The USPTO’s quick reference guide to the IDS size fee sets out what is counted:
- every item the applicant lists, including US patents for which no copy is filed;
- every repeat listing of an item that was already cited in the same application.
These are not counted:
- items submitted by third parties or placed on the file by the Office;
- items cited in a parent application, unless they are listed again in the child application.
A continuation or divisional starts again at zero, but an RCE does not reset the count.
For example, an applicant files three IDSs in one application. The first lists 40 items, so no size fee is due and the assertion says so. The second adds 30 items, which takes the count to 70, and USD 200 is due. The third adds 150 items, which takes the count to 220. The top tier now applies, and the applicant pays USD 800 less the USD 200 already paid, which is USD 600.
Common IDS mistakes
- Losing track of the three-month date. A foreign search report arrives, nobody dockets it, and the timing statement is no longer available.
- Leaving out the size fee assertion. The assertion is needed even when no fee is due. Without it the IDS is not considered.
- Counting items per IDS. The thresholds apply to the running total for the application.
- Citing the same item twice. Each repeat listing adds to the count, so duplicates now cost money.
- Ignoring related US applications. Office actions and art from co-pending family members are material information too.
- Filing non-English documents without an explanation of relevance.
- Over-citing. Listing every document from a large family used to cost nothing. It now pushes the application into the higher fee tiers and gives the examiner more to read.
A workflow for managing IDS filings across a patent family
Large families generate references in many countries at once. The routine below is the same whether the work is done in-house or by an outside IDS preparation team.
- Collect every new citation as it arrives: foreign search reports, Office actions in related US cases and anything the inventors report.
- Docket the three-month date for each foreign communication on the day it is received, counting from the date on the communication.
- Check each reference against what has already been cited in the application and remove duplicates.
- Work out which timing window the application is in, and whether a statement, a fee or both are needed.
- Prepare the list, the copies and the explanations for non-English items.
- Update the cumulative item count and write the size fee assertion.
- File through Patent Center and confirm later that the examiner has initialled every item.
Step 3 relies on a cross-citation matrix, which records which reference has gone into which application in the family. It shows both missed citations and duplicate listings.
Getting help with information disclosure statements
Synoptic IP prepares information disclosure statements for law firms and in-house IP teams, including cross-citation tracking for large families and explanations for non-English references. To discuss a family or request a quote, see our IDS preparation service.
This guide is general information about USPTO practice and is not legal advice. The decision on what to cite remains with the patent attorney.
Frequently Asked Questions
Is an information disclosure statement mandatory?
Only when there is something to disclose. Anyone involved in a US application must disclose information they know to be material to patentability, and the IDS is the accepted way to do that. If no such information is known, no IDS is required.
Is a prior art search required before filing an IDS?
No. The duty covers information that is already known to the people involved in the application. The rules state that filing an IDS is not a representation that a search has been made. Information that becomes known later, for example from a foreign search report, still has to be disclosed.
Is filing an IDS an admission that the references are material?
No. Under 37 CFR 1.97(h), filing an IDS is not an admission that the cited information is material to patentability. Applicants therefore tend to cite a document when in doubt. The IDS size fee has made that habit more expensive once an application passes 50 items.
Can an IDS be filed after the issue fee is paid?
Yes, but not in the ordinary way. The applicant can use the Quick Path IDS programme, or petition to withdraw the application from issue and file a request for continued examination. Both routes add cost and can delay grant, so late citations are best avoided.
Do copies of US patents have to be filed with an IDS?
No. US patents and US published applications only need to be listed. Legible copies are required for foreign patent documents and for non-patent literature, such as journal articles and product manuals. A US patent that is listed without a copy still counts as an item for the IDS size fee.
Must parent application references be cited again in a continuation?
Usually not. The examiner of a continuation or divisional considers the information that was considered in the parent. The references are listed again only if the applicant wants them printed on the new patent. Items that are listed again count towards the IDS size fee in the child application.
Do other patent offices require an information disclosure statement?
Not in the same form. The information disclosure statement under 37 CFR 1.97 and 1.98 is specific to the USPTO, but some other offices have disclosure requirements of their own. For example, India asks for details of corresponding foreign applications under section 8 of the Patents Act, and the EPO asks for the search results on the priority application. Requirements differ from country to country and should be checked locally.
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