What are the consequences of submitting an untimely IDS?
What are the consequences of submitting an untimely IDS?
Submitting an untimely Information Disclosure Statement (IDS) can have significant consequences for a patent application. According to MPEP 609.02, the consequences depend on when the IDS is submitted:
- After first Office action but before final rejection: Requires certification and fee
- After final rejection but before RCE or appeal: Requires certification, fee, and statement
- After payment of issue fee: Not considered by examiner
The MPEP states:
‘If an IDS is filed after the mailing date of a first Office action on the merits but before the mailing date of a final rejection or a notice of allowance, the IDS must be accompanied by (1) the statement specified in 37 CFR 1.97(e) and (2) the fee set forth in 37 CFR 1.17(p).’
Failing to comply with these requirements can result in the IDS not being considered, which may affect the validity or enforceability of any resulting patent. In extreme cases, it could lead to allegations of inequitable conduct if material information was intentionally withheld.
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