OJ EPO 2011, 372

The President of the European Patent Office (EPO), having regard to Article 10(2) EPC, Rules 2, 30(1), 68(2), 73(2) and 163(3) EPC and Rule 13ter PCT, has decided as follows:

Article 1

Filing of sequence listings in respect of European patent applications

(1) If nucleotide or amino acid sequences are disclosed in a European patent application, the description must contain a sequence listing in electronic form complying with WIPO Standard ST.25.

(2) The sequence listing under (1) is to be filed on an admissible electronic data carrier. ^[ 1 ] If the sequence listing is also filed on paper, the applicant shall submit a statement that the sequence listings in electronic form and on paper are identical.

Article 2

Subsequent filing of sequence listings

(1) Where the applicant has not filed a Standard-compliant sequence listing in electronic form at the date of filing the European patent application, the EPO shall invite the applicant under Rule 30(3) EPC to file such a sequence listing and to pay the late furnishing fee within a non-extendable period of two months from the invitation.

(2) Sequence listings filed after the date of filing of the European patent application must be accompanied by a statement that the sequence listing does not include matter which goes beyond the content of the application as filed.

Article 3

Unreadable, incomplete or infected files

(1) If a file containing a sequence listing is unreadable or incomplete, the unreadable or incomplete part shall be deemed not to have been filed.

(2) If a file containing a sequence listing is infected with a computer virus or if it contains other harmful software, the file shall be deemed to be unreadable. The EPO shall not be obliged to open or process it.

(3) If a file containing a sequence listing is defective within the meaning of (1) or (2) at the time of filing, the applicant shall be informed forthwith. Article 2 of the present decision shall apply mutatis mutandis.

Article 4

Furnishing of sequence listings to the EPO acting as international authority under the PCT

Where a sequence listing in electronic form and compliant with WIPO Standard ST.25 is not available to the EPO as International Searching Authority, Supplementary International Searching Authority or International Preliminary Examining Authority, the applicant shall be invited to furnish such a sequence listing under Rule 13ter.1(a) PCT and to pay the late furnishing fee under Rule 13ter.1(c) PCT within a non-extendable period of one month from the date of the invitation.

Article 5

Filing sequence listings with the EPO as designated or elected Office

On invitation to file a Standard-compliant sequence listing under Rule 163(3) EPC, Articles 1, 2 and 3 of the present decision shall apply mutatis mutandis.

Article 6

Publication and conversion of sequence listings by the EPO

(1) A sequence listing filed at the date of filing of the European patent application shall be published with the application documents (Rule 68(1) EPC) and the patent specification (Rule 73 EPC) as part of the description.

(2) Sequence listings filed in electronic form shall be converted ex officio for the purpose of publication and file inspection. A copy of the original file submitted by the applicant shall be made available on request.

Article 7

Previous decisions superseded

With the entry into force of this decision, the decision of the President of the EPO dated 12 July 2007 concerning the filing of sequence listings (Special edition No. 3, OJ EPO 2007, C.1) in the version amended by the decision of the President of the EPO dated 26 March 2010 concerning the furnishing of sequence listings to the EPO acting as international authority under the Patent Cooperation Treaty (PCT) (OJ EPO 2010, 328) shall cease to have effect.

Article 8

Entry into force

This decision shall enter into force on 1 June 2011 and apply to all European patent applications and international patent applications filed in accordance with the PCT on or after that date or pending on that date.

Done at Munich, 28 April 2011

Benoît BATTISTELLI

President