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Posted by Anonymous . updated on 2/26/2009

I am filing a design patent. Do I have to file an IDS? I have done no research. Just thought USPTO will do the search anyways. Is it an absolute reqiurement that I must file a IDS? Does the same thing applicable to untility patent?

I heard some attorneys do no do the search and do not file IDS. Is that right.

Thank you for a detailed information. You guys are the best ever.
Answers (1)
An IDS is not necessarily required to file any patent, the requirement at hand simply requires those involved in the patent filing/prosecution to submit to the USPTO any known information or known prior art which could arguably be considered adverse to patentability - an IDS is used to fulfill this requirement.  Its almost an "honors system" type of requirement, but failure to fulfill can potentially come back to bite you.

Some attorneys will avoid conducting a search to avoid filing an IDS to avoid potential liability. If nothing is documented as being known, then there is no liability at stake because there is no requirement to disclose anything that is not known. Of course, it is still smart to have a search conducted, and there are cases where submitting an IDS can actually help you obtain more meaningful patent protection.

For a design patent, however, there is certainly a lower likelihood that blocking prior art exists, so the situation is different if patentability is your prime concern.
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