When you think of “prior art”, IDS patent surely comes to mind. The USPTO labels it as an indispensable part of your patent application. Not having IDS in your application could cause problems of varying degrees. But what is IDS? Why do you need it in a patent? We are here to explain everything there is to know about IDS patent. This will help you to draft your patent application accordingly.
Definition of IDS Patent Application
IDS stands for Information Disclosure Statement. A patent applicant needs to disclose every information that can be prior art to the USPTO in the IDS. Any information that classifies as material to patentability needs to be a part of the IDS. But the disclosure limits to only the information that he/she is aware of. The IDS plays a key role in the patent application.
Obligation to submit IDS
It is the patent applicant’s obligation to submit the IDS patent. The duty to disclose information material to patentability falls on the patent applicant and the inventor. This is because the inventors are more aware of a particular field of technology than a patent examiner. Hence, they should disclose each piece of information that they are aware of. However, does that mean that you need to find every prior art while filing an IDS? The answer related to a patent search.
You conduct a patent search to see if any relevant prior art for your invention exists. However, it is not a mandatory step for the USPTO. So, if you don’t conduct a patent search then you will not be aware of every prior art. That means you will have lesser information to disclose.
But this is a very risky gamble because if the patent examiner finds a prior art then your application can face rejection. Not only will you discover new prior art, but also you will have to find a way to distinguish your application from it. This can be very risky and it is advisable to conduct a patent search.
The bottom line is you need to disclose all the information that you are aware of only in the IDS patent. You don’t need to do extra research to discover prior art that you are not aware of.
You must understand that failing to file an IDS will never benefit you. The USPTO may believe your intent is to deceive the office. You will have to defend yourself against charges of intent to mislead.
Requirements in the IDS
Finally, let’s clearly elucidate on the information that needs to be a part of the IDS. We know that all material to patentability needs to be in the IDS. Primarily, there are 4 such types of information which classify as prior art:
- Pre-existing patents
- Patent applications that are in the process
- Research publications in conferences, journals or blogs
- Commercial products
When should you file an IDS?
Ideally, you should file an IDS along with your patent application immediately. However, the USPTO gives you other chances to file it at other stages of the patent prosecution process as well.
You can file it at 3 stages in particular, under 37 C.F.R Section:
- 1.97(b): It allows you to file it within 3 months of the US filing date or before receiving the First Office Action.
- 1.97(c): You can file the IDS after passing the first stage of filing or before mailing the Final Office Action. It also allows you to file it after mailing the Notice of Allowance.
- 1.97(d): It allows you to file after passing the second stage of filing or before or with payment of the issue fee.
You can read more about when and how to file IDS here.
Need help in drafting an IDS? – Patent Drafting Catalyst
You can understand that an absolutely critical part of the application is the IDS patent. Drafting it to perfection, knowing what to include, how to include is vital. It is advisable to seek assistance from a professional for this. At Patent Drafting Catalyst, we believe in filing IDS smartly. We will ensure that you file your IDS with the least cost. Our job is to make your prosecution process smooth and simple. We can also assist you in drafting the patent application.