Under R. 30(3) EPC, where the applicant has not filed the necessary sequence listing prescribed in R. 30(1) EPC, the EPO shall invite him to furnish it on payment of a fee. In J 7/11, the Legal Board held that such invitations cannot be given orally only – a telephone call was, given the short time available, useful, but had to be followed by a written invitation enumerating all objections raised. Failure to do so amounted to a substantial procedural violation.
In J 8/11 the crucial issue on appeal was the interpretation of the term "disclosed" in R. 30(1) EPC, namely the question whether a patent application which related to the use of polypeptides well known in the prior art and which identified these polypeptides by their common names and by database accession numbers concerning specific representative sequences had to be regarded as "disclosing" amino acid sequences. The board concluded that prior art sequences do not require the filing of a sequence listing and that the Receiving Section had been wrong to apply R. 30 EPC. With reference to J 7/11 the board pointed out that the Receiving Section is restricted to a merely formal examination of the sequence listing requirements.