The possibility of filing a sequence listing as a missing part of the description is, as a rule, limited to very rare conditions. The principle of Rule 56 is that it must be obvious from the application documents as filed that part of the description appears to be missing (see A‑II, 5.1). Very few cases fulfil the conditions for parts of the description being missing in the form of a sequence listing. Rule 56, for example, is applicable where the description quotes sequence identifier numbers (SEQ ID Nos.) but the sequences are not further disclosed in the description. Although in such case the disclosure is missing in the form of a sequence listing, the Receiving Section is not expected to identify such omissions as qualifying for Rule 56, and according to Rule 56(1) the applicant may not invoke the non-issuance of a communication under Rule 56(1) or (2). However, applicants may file the missing parts of the description relating to sequences of their own motion within two months of the date of filing according to Rule 56(2) (see A‑II, 5.2).
If the late-filed sequence information or sequence listing does not conform to the requirements of Rule 30(1) in conjunction with the rules laid down by the President of the EPO, then the communication under Rule 30(3) is sent to the applicant (see A‑IV, 5).
If, on the other hand, the late-filed sequence information includes a standard-compliant sequence listing according to the requirements of Rule 30(1), no Rule 30(3) communication will be sent. In such a case the late furnishing fee under Rule 30(3) does not fall due.
The above applies regardless of whether or not the late-filed parts of the description result in a change of the date of filing (see A‑II, 5.3) or if the late-filed missing parts can be based on the claimed priority, allowing the original date of filing to be maintained (see A‑II, 5.4). If, however, the late-filed parts of the description result in a change of the filing date, any communication according to Rule 30(3) which might be required will only be sent after the one-month period for the withdrawal of the late-filed parts has expired without the applicant having withdrawn them (see A‑II, 5.5).
In the case where the applicant inserts a sequence listing into the description as a late-filed part of the description according to Rule 56, the sequence listing so added, whether standard-compliant or not, is considered part of the description on the date of filing (regardless of whether or not this has changed) and, consequently, is published with the European patent application.
The rare possibility to file a sequence listing as a late-filed missing part must, however, be clearly differentiated from those cases where the application as filed contains:
– the complete sequence information in the body of the description, but no standard-compliant sequence listing;
– a sequence listing which does not contain all sequences disclosed in the application documents;
– a sequence listing that does not comply with the applicable WIPO standard.