Are there any consequences for disclosing "too many" references in an information disclosure statement (IDS)?

For example, one may do this to bury a damning reference, overwhelm the examiner so that most IDS references are skipped over, and/or achieve 'presumption of validity' over all disclosed references.

37 CFR 1.56 instructs to disclose the "closest information" for each claim, and not to disclose cumulative references. But this is a fuzzy standard, and not over-disclosing may lead to inequitable conduct issues (despite the standard being raised via Theranos). Is there some sort wrist-slapping if too many IDS references are disclosed without necessity (e.g. from co-pending pros history), and/or do you lose examiner goodwill?

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    I think this is an interesting question. Perhaps you might write out “Information Disclosure Statement” before the first usage of IDS? Just to help The nonprofessionals. – Eric Shain Dec 8 '17 at 2:17
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    I think it's most likely to show up in litigation, when you're trying to sue somebody on the patent. They'll allege fraud on the patent office, pointing to the critical references in your steaming pile of IDS, which the poor overworked examiner didn't notice. If you actually fill out the whole IDS with the most relevant sections identified and commented, it would probably help. It would also probably show that most of your steaming pile shouldn't be cited, so you should probably not cite it. – Dave M. Dec 8 '17 at 17:55
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    @DaveM. Point taken, but I ultimately I don't think it's a hige deal how much is disclosed in the IDS, as examiner's tend to rely primarily on their own search anyway. See e.g. patentlyo.com/patent/2010/08/…. Also, pre-Theranos it was not uncommon for examiners to get many references from cautious filers, e.g patentlyo.com/patent/2010/01/…. – user132162 Dec 9 '17 at 15:11
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    @user132162 An interesting question indeed, and one which I wish I had a good answer to. Though it seems the second Patently-O article contains a number of useful quotes from the Sughrue attorney, which almost provide an answer: "It is not possible, as a practical matter, to determine the scope of information that may be later be deemed material to an unreasonable “reasonable” examiner". Given there is such a strong mandate to cite everything that could possibly material, it would be a catch 22 to then punish an attorney for doing exactly that. – Maca Dec 10 '17 at 3:55
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    Not sure how examiners could react, but there some examples with hudge number of citations: patents.google.com/patent/US20030212424A1; patents.google.com/patent/US20030173072A1; patents.google.com/patent/US7905900B2; patents.google.com/patent/US6991045B2. You may check the public PAIR Image file wapper to see how these references affected the examination process, – Mikk Putk Feb 15 '18 at 12:42

The examiners that I know would see through this and be at least slightly annoyed. This would not help you. I look at the IDS as a list of references that I am aware of and that I have had time to make an argument against. I would place it first on the list and let it stand there to suggest that I am aware of it and I'm ready to defend against it.

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