5.3 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 filing date, 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 patent application as originally filed and a sequence listing must be filed separately. If in such a case the sequence listing is filed on the European patent application's filing date, it is published with the European patent application.

A sequence listing complying with the applicable WIPO standard and filed in the previously filed application after the filing date is not part of the description (Rule 30(2)) and, therefore, not included in the reference to the description and any drawings under Rule 40(1)(c). Consequently, the applicant must file a standard-compliant sequence listing for the European patent application separately.

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 sequence 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 filing date (Rule 40(3)). If, after receipt of the certified copy and translation, where applicable, the examination by the Receiving Section reveals that the sequence listing contained does not comply with Rule 30(1) in conjunction with the rules laid down by the EPO President, the EPO will send a communication according to Rule 30(3) inviting the applicant to correct any deficiencies and pay the late furnishing fee (see A‑IV, 5).

If the previously filed application referred to is a European patent application or an international application filed with the EPO as receiving Office, and the sequence listing contained satisfied the requirements of Rule 30 or Rule 5.2 PCT on its date of filing then all the requirements of Rule 30(1) are satisfied automatically on the filing date of the European patent application filed by reference to this application. If the sequence listing of the previously filed application does not comply with WIPO Standard ST.26, for instance because it was filed before the entry into force of the new WIPO standard, an invitation will be issued under Rule 30(3) to submit a standard-compliant sequence listing.

If the previously filed application was filed with any other office, the applicant will have to ensure that all the requirements of Rule 30(1), in conjunction with the rules laid down by the EPO President, are met. In particular, the applicant must consider that any electronic standard-compliant sequence listing filed on the filing date of the previously filed application will in most cases not be part of the certified copy under Rule 40(3) issued by the filing office: due to technical limitations, the certified copy received by the EPO will in most cases contain a converted sequence listing that is not standard-compliant. Hence, the applicant will still have to provide a standard-compliant sequence listing to the EPO to satisfy the above requirements. The same applies where the previously filed application was a European patent application or an 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.26 were not present on the filing date. If this is not the case, the procedure in A‑IV, 5 will be followed (a communication under Rule 30(3) will be sent).

In alignment with the practice for divisional applications, a sequence listing in WIPO Standard ST.25 format contained in the certified copy under Rule 40(3) (e.g. converted from the TXT file available to the issuing office) is excluded from the calculation of the additional fee for pages in excess of 35 (see also A‑IV, 5.4 and A‑III, 13.2).