The end of the “Ten-Day Rule” at the EPO
24 October 2022
It has recently been reported by CIPA that the “ten-day rule” will come to an end following a decision from the Administrative Council of the EPO.
Under the existing “ten-day rule” (provided by Rule 126(2) EPC), postal notifications from the European Patent Office are deemed to have been received ten days after their date of issue. This provision is intended 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 November 2022 setting a four month deadline from the date of notification would be due for response by 14 March 2023, rather than by 4 March 2023.
With the latest changes, from 1 November 2023, postal notifications will be deemed to be delivered on the date printed on the document.
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, with the above example, the four-month time limit for response to a notification dated 4 November 2023 will instead officially expire on 4 March 2024.
Although there will apparently be alternative safeguards stipulated for notifications that truly are not punctually delivered to the intended recipient, these have not yet been specified by the EPO. For now, the suggestion is that 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, although the details are yet to be confirmed.
Since the ten-day rule often affords applicants additional time to decide on how to respond to communications, the end of the rule may mean that applicants will need to provide instructions further ahead of the deadline than is currently the case if formal extensions are to be avoided. On the plus side, the abolition of the ten-day rule should bring more consistency in how deadlines are calculated, potentially simplifying deadline management.
We expect further details soon and will issue further updates in due course.
Calvin Williams
Advanced Engineering group
If you require further information on anything covered in this briefing, please contact Calvin Williams (ckwilliams@withersrogers.com; 44 20 7940 3600) or your usual contact at the firm.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Withers & Rogers LLP October 2022
