5. Applications relating to nucleotide and amino acid sequences
Overview
5. Applications relating to nucleotide and amino acid sequences
If nucleotide and amino acid sequences within the meaning of Rule 30(1) are disclosed in the European patent application, they are to be represented in a sequence listing that complies with WIPO Standard ST.26. WIPO Standard ST.26 is a worldwide standard that, in Annex VII, contains recommendations on how to prevent potential added or deleted subject-matter in sequence listings due to conversion from WIPO Standard ST.25 to WIPO Standard ST.26. The EPO relies on these recommendations as guidance for examination. Each nucleotide or amino acid sequence extending over the minimum length as defined in the standard and disclosed in the application documents (including drawings) needs to be listed in the sequence listing, even if the sequence is only a fragment of another disclosed sequence. The sequence listing must be filed in electronic form, i.e. in XML format as required under WIPO Standard ST.26, using EPO Forms 1001E, 1200E or 1038E, which are available in EPO Online Filing and Online Filing 2.0, or on an electronic data carrier (see A‑II, 1.1.1 and OJ EPO 2023, A48). Where the European patent application is filed online, the electronic sequence listing in the required format is to be attached. The sequence listing must not be filed on paper or in PDF format. Regarding divisional applications, see A‑IV, 5.4. Nonetheless, if two or more sequence listings are filed on the filing date, only the standard-compliant sequence listing will be used as the basis for the search. See the decision of the President of the EPO dated 9 December 2021, OJ EPO 2021, A96, and the notice from the EPO dated 9 December 2021, OJ EPO 2021, A97, as well as the decision of the President of the EPO dated 24 April 2023, OJ EPO 2023, A46, and the notice from the EPO dated 24 April 2023, OJ EPO 2023, A47.
Where a sequence listing is filed or corrected after the filing date, the applicant is required to submit a statement that it does not include matter going beyond the content of the application as filed. Standard-compliant sequence listings filed subsequent to the filing date, i.e. in reply to the invitation under Rule 30(3), are not part of the description and, therefore, not published with the European patent application. Whenever a sequence listing that is part of the description is corrected or amended, a complete new sequence listing must be filed. The corrected or amended sequence listing must comply with the applicable WIPO standard, which depends on the application's date of filing. For applications filed on or after 1 July 2022, sequence listings must comply with WIPO Standard ST.26. For applications filed before that date, the sequence listing must comply with WIPO Standard ST.25.
For applications referring to sequences belonging to the prior art, see F‑II, 6.1.
The Receiving Section will inform the applicant of any deficiencies as to the sequence listing or as to the necessary statements statement and issue an invitation to remedy the deficiencies and pay a late furnishing fee within a non-extendable period of two months. The late furnishing fee compensates for the administrative efforts of issuing the communication under Rule 30(3) and delaying the transmission of the application to the search division until after availability of a standard-compliant sequence listing. The late furnishing fee therefore does not have to be paid if the standard-compliant sequence listing is filed after the filing date but before the Receiving Section has issued the communication under Rule 30(3). If the requirements of Rule 30 in conjunction with the decision of the President of the EPO dated 9 December 2021 are not complied with in due time, where appropriate following the invitation to do so from the Receiving Section, which includes the payment of the late furnishing fee, the application will be refused according to Rule 30(3). This also applies if a sequence listing is subsequently filed in the required electronic format but still contains deficiencies with respect to the WIPO standard. Such deficiencies will not prompt the EPO to issue another invitation under Rule 30(3) triggering a new period of two months unless the previous invitation did not draw the applicant's attention to such remaining deficiencies (see J 7/11).