When Do You Need a 37 CFR 1.97(e) Statement for an IDS?

It depends on where the application is when you file. 37 CFR 1.97 sets three windows:

After the issue fee is paid, 1.97 no longer applies. The usual routes are the Quick Path IDS program or withdrawing the application from issue with an RCE. QPIDS also requires a 1.97(e) statement.

There are no extensions of time for any of these windows (1.97(f)). An IDS that misses the requirement for its window is placed in the file but not considered (1.97(i)).

For the other common reasons an IDS is not considered, see Five Reasons an IDS Is Filed but Never Considered.

It must make one of two statements, and each item must fit the statement you make for it.

• 1.97(e)(1), the foreign citation statement. Each item in the IDS "was first cited in any communication from a foreign patent office in a counterpart foreign application not more than three months prior to the filing of the information disclosure statement."
• 1.97(e)(2), the no-citation statement. No item "was cited in a communication from a foreign patent office in a counterpart foreign application," and, after reasonable inquiry, no item "was known to any individual designated in § 1.56(c) more than three months prior to the filing."

MPEP 609.04(b) gives sample wording and strongly encourages the exact language of the rule. The statement does not need to be an oath or declaration, and a registered practitioner can sign it.

One limit on (e)(2): if an inventor of the US application is also an inventor on a cited item, the (e)(2) statement cannot be made for that item.

The clock starts on the date on the foreign office's communication, not the day it reached you. MPEP 609.04(b) spells out the details:

• Which date. The date on the communication starts the period. If it shows two dates, the mailing date controls. The date a foreign associate or US practitioner received it does not count.
• First citation only. A reference cited again later does not restart the clock. If the EPO cited it a year ago and the JPO cites it this month, (e)(1) is not available for that reference. The same is true when a search report cited it more than three months ago and the examination report cites it again.
• Counterpart application. One application claims priority to the other, or the two disclosures are substantively identical. A PCT application that designates the US is not a counterpart, so references from an international search report fall under (e)(2), not (e)(1).
• Family members count. A US or other English-language family member listed in the foreign communication is treated as cited by that office.
• Weekends. If the three months end on a Saturday, Sunday or DC federal holiday, the statement can be filed on the next business day (1.7(a)).

In the 1.97(c) window you choose one. If every reference qualifies, the statement costs nothing. If even one reference does not qualify, the statement cannot cover the IDS. You then pay the 1.17(p) fee, which covers the whole IDS. In the 1.97(d) window you need both, so the question is only whether the statement can truthfully be made.

A separate statement protects patent term adjustment. A 1.97(e) statement does not stop the PTA reduction for a late IDS; MPEP 609.04(b) says so directly. That takes a statement under 37 CFR 1.704(d), and its terms are different:

When a foreign action arrives late in prosecution, check both deadlines on the day it comes in. The 30-day PTA clock runs out first.

A US application had its first action on the merits in February 2026, so an IDS filed in early October 2026 falls in the 1.97(c) window. The dates below are illustrative.

Reference A qualifies for 1.97(e)(1): the EPO report is its first citation. Reference B does not: KIPO cited it first, more than three months earlier, and the EPO citation does not restart the clock. One IDS listing both references therefore needs the 1.17(p) fee. If the same IDS were filed after a notice of allowance, it would need the statement and the fee together. That is impossible for reference B, so it would need an RCE.

ClaimxArk builds the IDS from the email the references arrived in, and handles the timing check as part of the draft:

• With your USPTO API key connected, it reads the file wrapper and works out which 1.97 window the IDS falls in. When the record is ambiguous, it leaves the choice to you rather than guess.
• It flags an IDS that is missing the statement or the fee its window requires.
• It counts three months from the date of the foreign communication. The count is by calendar, so check deadlines that fall on a weekend or holiday yourself.
• It never ticks the 1.97(e) box for you. You choose (e)(1) or (e)(2), and it fills the certification on Form PTO/SB/08.

The practitioner still decides what to cite and signs the IDS.

See the two-minute demo. Or start free at claimxark.ai.