Calling time on the EPO’s “ten day rule”
3 October 2023
The European Patent Office’s “ten day rule” will come to an end later this year following a decision made by the EPO’s Administrative Council in 2022.
Under the existing “ten day rule” (provided by Rules 126(2) and 127(2) EPC), postal and electronic notifications from the European Patent Office are deemed to have been received ten days after their date of issue. This provision was introduced to account for delays caused by the delivery of physical post, and ensure that the specified time limit for response is unaffected by these delays. In practice, this rule means that additional time may be available for responding even after the apparent expiry of certain deadlines. For example, a postal notification dated 4 April 2023 setting a deadline of four months from the date of notification would be due for response by 14 August 2023, rather than by 4 August 2023.
Under the revised rules, all official notifications issued on or after 1 November 2023 will be deemed to be delivered on the date printed on the document, in common with the practice of many other patent offices. For the avoidance of doubt, the ten day rule will continue to apply to official letters issued prior to 1 November 2023 whose deadline falls after that date.
The change is being made as part of the EPO’s “digital transformation” on the basis that notifications and communications from the EPO are now generally accessible digitally from the date on which they are despatched. This means that, in line the above example, if an official letter dated 4 November 2023 sets a deadline of four months, that deadline will now expire on 4 March 2024. (It’s worth pointing out that the deadline for responding to an official letter dated 25 October 2023 setting a similar deadline of four months will also expire on 4 March 2024.)
Rest assured, there will be safeguards in place where an official letter is not punctually delivered to the intended recipient. As is currently the case, if a recipient alleges that they did not receive a notification on time, then the burden of proof to the contrary will be on the EPO. Under the revised rules, “on time” means within a week of the date of that letter.
Since the ten day rule has historically afforded applicants with an additional cushion of time to decide on how to respond to official letters, the end of the ten day rule may mean that applicants will need to provide instructions earlier than they currently do if formal extensions are to be avoided. On the plus side, the abolition of the ten day rule will bring more consistency in how deadlines are calculated, simplifying deadline management and avoiding calculation errors which may have occurred in the past.
Michael Jaeger
Electronics, Computing & Physics group
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Withers & Rogers LLP October 2023
