Can the incorporation by reference of the Sequence Listing XML be added after the filing date?
Can the incorporation by reference of the Sequence Listing XML be added after the filing date?
Yes, the incorporation by reference of the Sequence Listing XML can be added after the filing date, but there are specific conditions and potential consequences to be aware of. According to MPEP 2413.04:
“An incorporation by reference statement added after an application’s filing date is not effective because no new matter can be added to an application after its filing date.”
However, the MPEP also provides a solution:
“If an incorporation by reference statement is included in an amendment to add a Sequence Listing XML as part of the application, and the Sequence Listing XML itself is not added, changed, or removed at the time of the amendment, the incorporation by reference statement is not considered new matter and may be entered.”
This means that you can add the incorporation by reference statement after the filing date, provided that the Sequence Listing XML itself was already part of the application and is not being modified. It’s important to note that this amendment should be made promptly to avoid potential delays in the examination process.
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