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Guidelines for Examination

 
 
5.2
Sequence listings of an application filed by reference to a previously filed application 

Where the application is filed by reference to a previously filed application (see A-II, 4.1.3.1), and that previously filed application contained sequence listings on its date of filing, then those sequence listings form part of the application as originally filed. This is subject to the exception that, where the sequences only appear in the claims and not in the description or drawings of the previously filed application, and the applicant did not include the claims of the previously filed application in the reference, then those sequences are not included in the European application as originally filed, even if the applicant subsequently filed a sequence listing complying with WIPO Standard ST.25 later on in the prosecution of that previously filed application (later filed sequence listings are not part of the description according to Rule 30(2)).

Where the previously filed application is not available to the EPO, it will not be possible to carry out the check according to Rule 57(j) on the compliance of the listing with Rule 30(1) until the applicant files the certified copy and any translation required, which must be done within two months of the date of filing (Rule 40(3)). After the certified copy and translation, where applicable, are received, if it transpires that the listing contained therein does not comply with Rule 30(1) in conjunction with the rules laid down by the President of the EPO, the European Patent Office will send a communication according to Rule 30(3) inviting the applicant to correct any deficiencies (including the lack of the electronic listing and/or, where applicable, the lack of a statement of identity of the electronic listing with the written listing) and pay the late furnishing fee (see A-IV, 5).

If the previous application referred to is a European application or an International application filed with the EPO as receiving Office, and this application satisfied the requirements of Rule 30 or Rule 5(2) PCT in combination with WIPO Standard ST.25 on its date of filing then all the requirements of Rule 30(1) are satisfied automatically on the date of filing of the European application filed by reference to this application.

In all other cases, however, the applicant will have to ensure that all the requirements of Rule 30(1), in conjunction with the rules laid down by the President of the EPO, are met. This means that if the previously filed application referred to is not one of the above types of application, even where it contains a written sequence listing conforming to WIPO Standard ST.25, the applicant will still have to provide an electronic form of the sequence listing complying with WIPO Standard ST.25 and, where applicable, a statement that the information in electronic form is identical to the written sequence listing, in order to satisfy the requirements of Rule 30(1) in conjunction with the rules laid down by the President of the EPO. This includes the case where the previously filed application was a European application or International application filed with the EPO as receiving Office, but where one or more of the elements required to satisfy the requirements of Rule 30(1) or Rule 5(2) PCT in conjunction with WIPO Standard ST.25 were not present on the date of filing. If this is not the case, the procedure in A-IV, 5 will be followed (a communication under Rule 30(3) will be sent).