Tick-tock, time’s up: EPO says Tschüss to the 10-day rule

Postal and electronic notifications from the European Patent Office dated on or after November 1, 2023 will be deemed to have occurred on the date printed on the document. This replaces the current practice of adding 10 days to the date of the document. Effectively, the time period to respond to many EPO communications where the deadline for responding is calculated from the notification date will be shortened by ten days as from this November. See our previous report here.

To implement the changes, the Administrative Council of the EPO adopted a set of amendments to Rules 46, 49, 50, 57, 65, 82, 126, 127 and 131 of the Implementing Regulations to the European Patent Convention by the Decision of the of 13 October 2022 (CA/D 10/22) (here).

In a recent notice (here), the EPO clarifies that Amended Rules 126(2) and 127(2) EPC introduce a new notification fiction, according to which postal and electronic notification are deemed to occur on the date of the document, and sets out some of the safeguards in case of notification irregularities, namely:

• If the EPO is unable to prove that a document has been delivered, the notification fiction will not apply, and a period linked to that document will not be considered to have started. The document in question will be reissued with a new date, resulting in the application of the notification fiction based on that later date.
• Where a document has been delivered exceptionally late, the new safeguard introduced in the last sentence of amended Rules 126(2) and 127(2) EPC will apply. More specifically, if notification is contested and the EPO cannot show that a document reached the addressee within seven days of the date it bears, a period triggered by the deemed receipt of that document will be extended by the number of days by which these seven days are exceeded. So, applying the safeguard, if an addressee received a document 12 days after the date it bears, the period will be extended by five days. By contrast, if the EPO's investigation shows that a document was received, for instance, four days after the date it bears, there will be no change in the period calculation.
• The general principles governing time-limit extensions set out in Rule 134 EPC will apply to periods recalculated applying the new safeguard.

As for transitional measures: the decisive date for determining whether the 10-day rule applies or does not apply to a specific document is the date printed on that document. The new system will apply to documents dated on or after November 1, 2023, meaning that the old 10-day rule is applied only to documents dated on or before October 31, 2023.

The idea behind the 10-day rule was that it takes days for a letter to travel by traditional post in which case the actual time period for responding was significantly reduced. In this age of instant digital communication however that premise is difficult to justify. Nonetheless, applicants should be aware that last minute decisions can cause complications, and it's a good idea to give instructions for replying to notifications timely so as to ensure that the necessary documents can be filed in due time.

Reach out to us on info@dcp-ip.com if you have any questions or concerns about how this will affect your current or future patent applications. Our DCP team is ready to assist you!