Every IDS must now state its size fee under 37 CFR 1.17(v). What counts toward the 50, 100 and 200 thresholds, and where the running count belongs.
The third IDS on a matter goes out in March. Twelve references, mostly from a European search report that landed in January. It goes out asserting that no size fee is due, because twelve is nowhere near fifty.
Except the application already had 44 references on it from the first two IDSs. One filed by an associate two years ago. One prepared by someone who has since left the firm. That third IDS took the count to 56, and the $200 fee under 37 CFR 1.17(v)(1) was due with it.
Nobody was careless. Each person worked from the IDS in front of them. The number that mattered just wasn't on any of their screens.
What changed when the IDS size fee took effect?
Since January 19, 2025, the USPTO has charged a size fee based on the cumulative number of items an applicant cites across every IDS filed in an application. The tiers are set by 37 CFR 1.17(v):
More than 50 items: $200.
More than 100: $500, less anything already paid at the first tier.
More than 200: $800, less anything already paid at the lower tiers.
There are no small or micro entity discounts on this one. And it's separate from the existing IDS timing fee, so an IDS filed after allowance can owe both.
The money isn't really the hard part. The most an application pays in size fees is $800. What hurts is the paperwork that came with it. Every IDS now has to carry a clear written assertion that either the right size fee is enclosed or none is required. When a fee is due, the assertion names the tier. A general authorization to charge your deposit account doesn't count unless it names the specific size fee.
Get the assertion wrong, or leave it off, and the USPTO's guidance is blunt. The IDS is placed in the file but not considered. That's the real cost: references you meant to put in front of the examiner, sitting in the file unread.
Why is the count harder to keep than the fee?
Because the count lives across filings that are often months or years apart, prepared by different people.
Picture who touches an IDS over the life of a patent application. The associate who filed the first one with the application. The paralegal who ran the IDS when the foreign search report came in. Foreign counsel, who sent the references over. Whoever picks up the matter after a reassignment. Each of them sees one IDS at a time. The rule adds all of them together.
And the USPTO isn't keeping score for you. Its own guidance says counting and tracking items is the applicant's job, and that Office personnel are "not required or expected to track the number of items." The count is yours.
The obvious source for it, the last filed SB/08, only tells you what was on that one statement. To get the total, someone has to pull every prior IDS from the file history and add them up. That's fine once. It's a slog on a family with a dozen open matters and art moving between them.
This is the part that catches people. The USPTO's FY 2021 data, published with the rule, shows about 87% of applications never got past 50 cited items. So most of the time, nobody owes a fee. That's exactly why it's easy to stop checking. But the assertion goes on every IDS regardless, and the applications that do cross the line are the ones with the most art coming in.
What counts toward the 50, and what doesn't?
A few of the details run against intuition.
Duplicates count again. Each instance of an item counts. List the same reference twice on one IDS, or on two IDSs in the same application, and it counts twice. Duplicates caught before filing are now a fee question, not just a tidiness one.
Refused items are the exception. If the examiner didn't consider an item because it was noncompliant (the rule's example is an illegible copy), listing it again in the same application doesn't count it a second time.
A continuation starts at zero. The count is per application. Continuations, reissues and CPAs start fresh. A reference cited in the parent isn't counted in the child unless it's resubmitted on an IDS there. But it has to be resubmitted if you want it printed on the child patent. That's a real choice, and it belongs to the attorney, not to whoever is assembling the IDS that afternoon.
An RCE doesn't reset anything. It's the same application, so the count keeps running.
Pre-2025 citations still count. For applications filed before the rule, everything cited earlier goes into the total. If the application had already passed a threshold before January 19, 2025, the next IDS only owes a fee if it crosses a higher one.
A copy isn't required for an item to count. "Provided" means cited on the IDS. The US patents you don't have to attach still count.
Where should the running count live?
On the matter. Not in someone's head, and not in a spreadsheet on one paralegal's desktop.
That sounds obvious. But the docketing system is built to hold the dates, and the DMS holds the filed documents. Unless someone set one of them up to do it, neither keeps a running total of cited items per application. So the count gets rebuilt by hand, or it doesn't get checked at all.
A systems approach comes down to a few habits that hold up no matter who prepares the next IDS:
Record the count, and any size fee paid, with each filed IDS. Put both on the matter record next to the filing. Later tiers are owed as a difference, so you need the payment history too, not just the total.
Check the count when the references are pulled together, then again before signature. The early check sets expectations. The second one catches anything added during assembly, or another IDS that went out in the meantime.
Catch duplicates in the citation record before they go on a form. They have a price now, and they're easiest to spot where the citations are tracked, not on the finished statement.
Make the parent-art call on purpose. When a continuation is filed, decide which parent references get resubmitted and note why. That decision sets the child's starting count.
Keep the citation history at the family level. The art moves between family members. The count is per application. You need both views, and you need them in the same place.
This doesn't have to be a big project. It does need an owner, and it needs the citation record to be something the whole team can see, rather than something each person rebuilds.
PracticeLink's Citations module keeps the citation record those habits depend on. It tracks which references are cited on each matter across the family, shows them in one cross-cite grid with a column per family member, and builds the SB-08 from that record with a full preview before anything is filed. It works alongside your docketing system and DMS rather than replacing either one. The size-fee call and the assertion still belong to whoever signs the IDS. The point isn't the software, though. The next IDS should start from the application's real history, whoever prepares it.
The size fee is small. The habit it forces is useful anyway. A firm that keeps that record on every application can answer, without digging, whether a reference was ever cited and on which IDS. That's worth having the next time someone asks.
If you'd like to see how PracticeLink keeps the citation record for a family, we're happy to walk you through it.
Frequently asked questions
What is the IDS size fee?
It's a USPTO fee under 37 CFR 1.17(v), in effect since January 19, 2025, based on the cumulative number of items an applicant cites on IDSs in an application. It's $200 once the count passes 50, $500 past 100, and $800 past 200, each less what was already paid. There are no small or micro entity discounts, and an application pays at most $800 in size fees.
Does every IDS need to say whether a size fee is due?
Yes. Every IDS filed on or after January 19, 2025 needs a clear written assertion that the right size fee is enclosed or that none is required. If the assertion is missing, the IDS is placed in the file but not considered. A general authorization to charge a deposit account doesn't count unless it names the specific size fee.
Who is responsible for counting the items?
The applicant. USPTO guidance says it's the applicant's or patent owner's responsibility to count and track items and pick the right fee and assertion, and that Office personnel aren't expected to track the number.
Do references from a parent application count in a continuation?
Not unless they're resubmitted. A continuation starts at zero, and a parent reference only counts if it's cited again on an IDS in the child. But it has to be resubmitted if you want it printed on the continuation patent, so it's a choice with a cost either way.
Does an RCE reset the count?
No. An RCE isn't a new application, so the count keeps running. Continuations, reissues and CPAs do start at zero.