Information Disclosure Statement (IDS)

There is a duty for all parties related to a patent application (including inventors, assignees, and patent attorneys) to submit any “prior art” that is material or relevant to the patentability of the invention. This duty is met by filing an “information disclosure statement” (IDS). Failure to disclose material information of which you are aware could result in the loss of your patent rights.  At the very least, failure to disclose a reference can be used in litigation in attempts to invalidate a patent.

“Prior art” includes any patents, publications, or other references (including products/services for which there is no printed material) that are material to the patentability (close information) of the invention. Prior art includes all references found by a search agent and all references cited in the process of obtaining foreign patent protection. If there are any questions, it is safer to submit a reference than to not submit a reference.

Prior art also includes your own acts (e.g. publications, public uses, and offers to sell) prior to the filing of your application that are material to patentability. A complete disclosure of your own prior art would include the dates of the disclosure(s), what the disclosure(s) entailed, and the person or entity to whom you made the disclosure(s).

An information disclosure statement may be submitted to the U.S. Patent and Trademark Office in two parts: a transmittal letter and a listing of references. By filing the IDS at the time of filing, before the first Office action, and/or within three months of discovering the reference, the PTO filing fee is waived, so prompt filing is advised.

Please note that, until the patent issues, most parties associated with the patent prosecution (including inventors, assignees, and patent attorneys) are under a continuing obligation to bring such references to the attention of the U.S. Patent and Trademark Office. This means that even after the application is filed, newly found information must be submitted in a new IDS.