So long 10-Day Rule: Digital age heralds end of extra time
This article was written by Anne-Lore Bex.
In October of last year, the European Patent Office (EPO) announced the abolition of the long-standing “10-Day Rule,” which is set to take effect on November 1, 2023. This means that the time limit for responding to certain deadlines will change, and thus there will be less time available to ensure the filing of a timely reply to many official EPO communications.
What is the 10-Day Rule?
The "10-Day Rule" which is based on Rule 126(2) EPC, has been a fundamental aspect of the calculation of deadlines set by the EPO for many years. In essence, it determined that when an applicant receives a communication from the EPO which specifies a deadline to reply thereto, the date of notification of the communication was automatically deemed to be 10 days from the date specified on the communication (Rule 126 (2) and 127(2) EPC). In practice, this has meant that the time limit to reply to the EPO communication was considered to start only from this “artificial” day of receipt, such that the available time for filing the response included 10 extra days. For instance, if the applicant received a communication dated April 1, 2023, and the applicant was invited to reply within 4 months from the notification of the communication, the deadline was August 11, 2023 (April 1 + 10d + 4 months). This rule was designed to account for potential postal delays, ensuring that all applicants would have adequate time to respond to EPO communications.
The Abolishment of the 10-Day Rule
A shift towards digitalization and the increased use of electronic communication methods has prompted the EPO to abolish the 10-Day Rule. The effect of this change is that the date of notification of an EPO communication will be deemed to be the actual date stated on the communication itself. For example, if you receive an EPO communication dated November 1, 2023, inviting you to respond within 4 months, the deadline for response will have to be calculated from that same date, i.e. the time limit will expire on March 1, 2024 (November 1, 2023 + 4 months). The 10-day buffer, previously applied, will no longer be in effect. Given that most other patent offices do not have this 10-day notification period, the abolishment of the 10-day rule will make the calculation of deadlines at the EPO more harmonised. Note that this 10-day rule was only applied to deadlines which were set by the office in a communication issued by the EPO and was not applicable to fixed deadlines set by the EPC (such as the 12-month time period for claiming priority or the 6 month time limit for requesting examination triggered by the publication of the search report in Patent Bulletin). For these latter deadlines, the abolishment of the 10-day rule will thus not have any impact.
When will the rule change take effect?
The EPO rule change will affect communications issued by the EPO on or after November 1, 2023, simplifying the calculation of deadlines. For communications dated before that date, i.e. up to and including October 31, 2023, the time limit for filing the response will continue to follow the existing 10-day rule principle.
Do you need to take any action?
De Clercq & partners has in its communications consistently referred to the basic deadline, i.e. without including the 10-day buffer, hence, the change will not affect our reporting. Nevertheless, knowing that many of our clients have grown used to the existence of these additional ten days, for deadlines starting from November 1, 2023, reminders will be sent more quickly, emphasizing that the 10 day notification period no longer applies. It is nevertheless important to realize that for those cases where the EPO sets a deadline of only one or two months to reply, the abolishment of the 10-day notification rule will have a significant impact on the available time to file a response, such that it will be necessary to consider these communications in a timely way.
We encourage you to reach out to us on info@dcp-ip.com if you have any questions or concerns about how this will affect the handling of your current or future patent applications. Our DCP team is ready to assist you!