Does an IDS filed after a non-final election requirement require payment of a fee

Question

An IDS can be filed without requiring a fee if done so a) within 3 months of filing the non-provisional application or b) before the first office action on the merits.
I have a (first) non-final office action that is an election requirement. Does this qualify as an action on the merits, and do I therefore need to pay the fee if I submit an IDS before responding to the office action?

George White · Accepted Answer

No fee is required
An action on the merits means an action related to patentablity. It excludes formalities like errors in payments or requests to have drawings improved.
From a very quick search of the MPEP (Manual of Patent Examining Procedure), found under
609 Information Disclosure Statement [R-10.2019]

Likewise, an information disclosure statement will be considered if it is filed later than three months after the application filing date but before the mailing date of a first Office action on the merits. An action on the merits means an action which treats the patentability of the claims in an application, as opposed to only formal or procedural requirements. An action on the merits would, for example, contain a rejection or indication of allowability of a claim or claims rather than just a restriction requirement

Does an IDS filed after a non-final election requirement require payment of a fee

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