Patents

Patent Information Disclosure Statement: When and Why to File an IDS

A duty-of-candor filing that tells the USPTO examiner about prior art you already know, prepared and filed by our patent attorneys for a flat fee.

An information disclosure statement tells the USPTO examiner about prior art you already know, satisfying your duty of candor as a patent applicant. Filing one protects your application from being invalidated later over something you should have disclosed. Leavitt and Eldredge prepare and file your IDS for a flat fee.

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A key part of the patent examination process is when the USPTO examiner does a search for prior art to determine if the patent application is patentable.

An information disclosure statement, also called an IDS, USPTO IDS, or USPTO information disclosure statement, provides the opportunity for a patent applicant to bring relevant information to the examiner’s attention.

At the end of the day there are two reasons why someone should file a USPTO IDS, and a few nuances to be wary of.

First, every patent applicant has what lawyers call a “duty of candor“, meaning that the applicant has an obligation not to intentionally hide relevant information. Failing to fulfill your duty of candor can be seen as a fraud on the USPTO and cause you to lose your patent.

If, for example, you are aware of a registered patent that is very similar to your application, you should inform the USPTO examiner by filing an IDS patent disclosure. The examiner will then review your USPTO IDS form and consider it in his or her analysis before granting or rejecting your application.
Gold traces across a circuit board in low light

Which brings us to the second reason you should file a USPTO information disclosure statement, it makes enforcing your patent easier and cheaper. As a general rule, patents are only as strong as they are enforceable, and you enforce a patent through a lawsuit. But on defense, we patent attorneys loooove to argue that a given patent would never have been registered if the examiner had been given proper disclosures of prior art. If you actually did disclose the relevant prior art, you’ve deprived your enemy’s attorneys of their favorite argument!

For example, you filed patent B, knowing that patent A is relevant. If the examiner, unaware of patent A grants your patent, it can later be used by your enemies to revoke your registration. But if the examiner was aware of patent A, you registration becomes virtually immune from it.

You should keep in mind, however, that your patent examiner will almost always cite your IDS disclosures against you as a reason to not grant your patent. This is normal and expected, and usually can be overcome with the proper assistance of your patent attorney. This is why we typically advise our clients to only disclose information that they sincerely believe to be relevant, and that they can reasonably obtain copies of.

At the Leavitt Eldredge Law Firm we offer our clients a choice:

  1. we can help them strike a proper balance between what should or should not be disclosed in an information disclosure statement; or
  2. they can take this responsibility on for themselves.

For those clients who select our firm to handle their USPTO IDS obligations, we charge a one-time flat rate fee that covers the entire 3-4 year application period, no matter when new prior art pops up.

Learn more about Information Disclosure Statement.

Common questions

Frequently asked

What is a patent information disclosure statement?
An information disclosure statement, or IDS, is a filing that tells the USPTO examiner about prior art you are already aware of, such as a similar registered patent or a relevant publication. It is not an admission that your invention fails to qualify. It simply puts the information in front of the examiner so they can weigh it during examination.
Why do I have to file an IDS if I already know about the prior art?
Every patent applicant has a duty of candor toward the USPTO, meaning you must disclose material prior art you are aware of even if it seems to work against you. Filing an IDS satisfies that duty. Skipping it and hoping the examiner never finds the same reference is far riskier than disclosing it up front.
What happens if I do not file an IDS?
If you knew about relevant prior art and did not disclose it, and the reference surfaces later, an infringer or competitor can argue your patent should be unenforceable for inequitable conduct. That risk applies even years after your patent grants. Filing an IDS during examination closes that door before it can be opened.
Does filing an IDS mean my patent will be rejected?
Not necessarily. Your examiner will almost always cite the references in your IDS in the examination record, but citing a reference is not the same as rejecting your claims over it. The examiner still has to determine whether the prior art actually anticipates or makes your invention obvious. Many disclosed references end up having no effect on the outcome.
How much does it cost to file a USPTO IDS?
We offer clients a choice, either handle the disclosure themselves or let our firm manage the USPTO IDS obligation for a one-time flat fee, quoted before we start. Because duty of candor issues can affect your patent years down the road, most clients prefer to have an attorney confirm the filing was done correctly the first time.

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