EPO 10 day Rule to be abolished
The Administrative Council of the EPO has recently passed a package of rule changes requested by the EPO "to adapt the rules of the EPC to the digital age".
The EPO "10 day rule" is currently provided by Rule 126(2) EPC. The Rule stipulates that notification from the EPO is considered to occur 10 days after the date on which the notification was sent. If the deadline for responding to a communication is 2 months, for example, then the deadline is calculated as 2 months from 10 days after the date printed on the communication.
This has been changed so that the date on which the document is deemed to be delivered is the date on the document, with some safety nets copied from the PCT.
Amended Rule 126(2) will read as follows:
(2) Where notification is effected in accordance with paragraph 1, the document shall be deemed to be delivered to the addressee on the date it bears, unless it has failed to reach the addressee. In the event of any dispute concerning the delivery of the document, it shall be incumbent on the European Patent Office to establish that the document has reached its destination and to establish the date on which the document was delivered to the addressee. If the European Patent Office establishes that the document was delivered to the addressee more than seven days after the date it bears, a period for which the deemed receipt of that document is the relevant event under Rule 131, paragraph 2, shall expire later by the number of days by which the seven days were exceeded.
There are therefore safeguards in the rule for the case where a document sent by registered post is not delivered within 7 days or not delivered at all. If a recipient indicates that a document was not delivered on time, it will be up to the EPO to prove when it was delivered.
The new Rule will only come into force on 1st November 2023 . After this date, documents sent by the EPO will be deemed to be delivered on the date of the document. This gives applicants and representatives just over a year to adjust their work practices and update their systems accordingly.