The European Patent Office have announced that they are abolishing the “10 day rule” under which the date of receipt of a Communication issued by the EPO was deemed to have arrived at the recipient 10 days after the date marked on the document.
The European Patent Office have announced that they are abolishing the “10 day rule” under which the date of receipt of a Communication or Notification issued by the EPO was deemed to have arrived at the recipient 10 days after the date marked on the document. This had the practical effect that for some Communications and Notifications the deadline for responding was the official period, +10 days from the date of the letter.
The historical reason for this rule was due to unpredictable postal and courier delays in communications between the European patent office and the applicant or their representative.
However, around 99% by volume of all communications issued from the European patent office are now via the EPO Mailbox electronic system, and so the EPO considered that it was necessary to update the Implementing Regulations to the European Patent Convention (the EPC rules) to reflect the reality that nearly all communications are now digital.
The amendments concern Rules 126(2), Rule 127(2) and rule 131(2) EPC (unamended “old” versions below):
Rule 126 (2)
Where notification is effected in accordance with paragraph, the letter shall be deemed to be delivered to the addressee on the tenth day following its handover to the postal service provider, unless it has failed to reach the addressee or has reached him at a later date; in the event of any dispute, it shall be incumbent on the Eu-ropean Patent Office to establish that the letter has reached its destination or to estab-lish the date on which the letter was delivered to the addressee, as the case may be.
Rule 127 (2)
Where notification is effected by means of electronic communication, the electronic document shall be deemed to be delivered to the addressee on the tenth day fol-lowing its transmission, unless it has failed to reach its destination or has reached its destination at a later date; in the event of any dispute, it shall be incumbent on the Eu-ropean Patent Office to establish that the electronic document has reached its destina-tion or to establish the date on which it reached its destination, as the case may be.
Rule 131 (2)
Computation shall start on the day following the day on which the relevant event occurred, the event being either a procedural step or the expiry of another period. Where the procedural step is a notification, the relevant event shall be the receipt of the document notified, unless otherwise provided.
The combined effect of these long-standing rules is that when calculating official response deadlines, these are calculated as the date of the notification as stamped on that document plus the official period mentioned in the document, +10 days.
There is then an adjustment depending upon whether the calculated deadline falls on a day which has no equivalent in the month in which the deadline falls, for example 31st February:
Rule 131 (4)
When a period is expressed as one month or a certain number of months, it shall expire in the relevant subsequent month on the day which has the same number as the day on which the said event occurred; if the relevant subsequent month has no day with the same number, the period shall expire on the last day of that month.
The above rules apply to documents notified ex officio by the EPO in accordance with Article 11 EPC such as decisions, summonses, notices and communications.
Amended new rules 126 (2) and 127 (2) EPC
Under the new rules, the date on which the above documents is deemed to be received will be the date marked on the document, irrespective of how the document is sent by the EPO either electronically or by physical mail. The 10 day rule will be abolished. Therefore, the date from which the time limit corresponding to that document runs will be calculated from the date marked on the document.
According to EPO practice, the date actually printed on the EPO document is the date on which it is handed over to a postal service provider in the case of postal documents, or the date of its electronic transmission to the EPO mailbox in the case of electronic notifications. It is the practice of the EPO to post-dated documents to allow enough time for them to be go through internal processing at the EPO so that they are issued by the EPO on the date as printed as marked on the document.
Under rule 126 (2) EPC for postal notifications, the date is the date printed on the document, rather than for example a postmark date on the envelope containing the document.
Under rule 127 (2) EPC, the deemed notification by electronic means does not occur before the date on the document, so even if the document is visible in EPO Mailbox before the date marked on the document, the official date of the document is that as marked / printed on the document itself.
Provisions for undelivered or un-received documents - irregularities in delivery
Under the amended rules, if an addressee is in dispute with the EPO as to whether document was delivered to them or not, the onus is on the EPO to prove both that the document was delivered, and the date of its delivery. If the EPO is unable to prove delivery of the document at all, any time limits linked to that document are deemed not to have commenced and the document is reissued with a new date and time limit and any official response periods begin from the date marked on the new document.
Where the EPO is able to prove that the document both delivered and can show the date on which she was delivered:
- if the document was delivered within 7 days of the date marked on the document, the time limit still starts on the date of the document.
- if the document was delivered after 7 days of the date marked on the document, any time limits on the document will be extended by a number of dates calculated by taking the actual date of receipt by the addressee, minus 7 days.
Example: An Article 94(3) communication exam report document delivered by EPO to the addressee 12 days after the date marked on the document, bearing a 4 month response period and where the communication is dated December 05, 2023, is actually delivered to the addressee 12 days late on December 17, 2023. The applicant informs the EPO that the communication was delivered late. The four month time limit will be extended by 12 days (the number of days from the date of on the communication to the date of the act receipt) minus 7 days according to the new rule, = 5 days extension allowed by the EPO, so the four month time limit expires on April 10, 2024 (issue date as marked on the document plus four months plus 5 days).
Under the new rules, the date on which the above documents is deemed to be received will be the date marked on the document, irrespective of how the document is sent by the EPO either electronically or by physical mail. The 10 day rule will be abolished.
Therefore, in most instances any time limit initiated by receipt by the addressee of an ex officio document will be calculated from the date marked on the document.
The EPO will issue its Official notice shortly.
If you have any queries concerning calculation of time limits in relation to European patent application, or any queries concerning European patent applications then please contact one of our European Patent Attorneys for further information.
franksco@franksco.com
Article Published March 17th, 2023
