Final call for the "10-day rule"
20 June 2023
The additional 10-day postal period for responding to many EPO communications will be abolished from 1 November 2023. We summarise how the abolition of the “10-day rule” could affect you.
European patent practitioners will need to update their records system to account for the shorter response periods. Furthermore, applicants with large portfolios should plan for a “crunch” period in early 2024 during which more responses will be due and more fees must be paid.
Changes to Rules 126(2), 127(2) and 131(2) EPC
The Administrative Council of the EPO has amended Rules 126(2), 127(2) and 131(2) EPC. Currently, communications are deemed to be delivered to the addressee on the tenth day following the date of mailing or transmission of the electronic communication. The 10-day rule is based on the legal fiction that communications sent by postal services might be subject to delays. Therefore, as the EPO enters a new era of instantaneous electronic communication, the relevance of the 10-day notification period has been questioned.
As of 1 November 2023, the abolition of the 10-day rule means communications from the EPO will now be deemed delivered on the date stated on the communication. Therefore, the legal fiction of the “10-day rule” will, with certain caveats, be replaced by another legal fiction – a “zero-day rule”.
For communications that are not delivered to the addressee on the date stipulated on the communication, safeguard provisions have been put in place.
The first provision applies where the communication is not delivered. In this case the EPO retains the obligation to prove:
(i) the communication was delivered; and
(ii) the date on which it was delivered.
In line with the current provisions, where the EPO is unable to prove (i) if and (ii) when the communication has been delivered, the notification fiction will not apply. Instead, the communication will be re-issued, resulting in the communication being deemed delivered on the date of the re-issued communication. In a recent communication, the EPO points out that the safeguards “will likely rarely play a role for electronic notification, given the reliability of the Mailbox”.
The second provision applies where a document is received late. In this case, if the communication is delivered more than seven days after the date stated on the communication, then the period triggered by the receipt of the communication will be extended by the number of days over seven days. For example, if the communication is delivered ten days after the date stated on the communication, the period for responding to the communication will be extended by three days.
As noted above, the amended Rules 126(2), 127(2) and 131(2) EPC will come into force on 1 November 2023. The new provisions will apply to any communication notified by postal service or electronic means on this date.
Notification and time limit calculation before Wednesday 1 November 2023
For example, a communication dated Tuesday 31 October 2023 is delivered to the addressee by postal service on 2 November 2023. The date stated on the document is before 1 November 2023, and thus the old provision will apply, namely, the 10-day rule. Therefore, 10 November 2023 will be the date used to calculate the time limit under Rule 131(2) EPC.
Whilst not explicitly stated, extending a deadline under Rule 132 EPC should not affect the date of the deemed receipt of that document. Therefore, a 2-month extension would provide a further 2 months to respond. However, any later loss of rights communication dated after 1 November 2023 would not benefit from an additional 10-day period.
Notification and time limit calculation on or after Wednesday 1 November 2023
In contrast, a communication dated Thursday 2 November 2023, and delivered to the addressee on 3 November 2023, will be subject to the new amended provisions. Therefore, 2 November 2023 will be the date used to calculate the time limit under Rule 131(2) EPC.
For more detailed advice in relation to any of the issues discussed above, or for advice relating to other matters regarding European practice, please do not hesitate to get in contact with your E+F representative or email us at email@example.com.