On the 1st of November this year the European Patent Office’s (EPO’s) 10-day rule will come to an end, removing the safeguard for late filed submissions whilst providing a more consistent and simplified approach to the calculation of deadlines in Europe.
Under the previous regime, a deadline which was set by notification of a communication (for example an examination report) was deemed to have arrived with the addressee 10 days after it was issued by the EPO.
Historically this was to allow for delays in postal service, but since the EPO now issues such communications electronically, there is no further need for the 10-day safety net. Although this period had been useful in the past, calculation of the actual due date for response was often complicated by errors such as adding the 10 days to the end of the response period instead of the beginning, and further complicated when the deadline fell on office holidays of the EPO or weekends.
The abolishment of the 10-day rule means that now when the EPO issues a communication which states that a response is due in (for example) 6-months, the 6-month response term is now calculated as starting on the date that the communication was issued. Whilst this may not seem a big change for the more common 4 and 6-month deadlines, this may have an impact where the EPO sets shorter deadlines of 1 or 2 months, so applicants and agents should be mindful of the new rules when considering requests for extensions.
Although the 10-day rule will no longer exist, Rule 126 EPC has been amended with a new provision that allows for late delivery of communications. If the communication arrives with the addressee more than 7 days after the date of issue of the communication, then the deadline set by notification of the communication is extended by the number of days over 7 days that the delivery of the communication was delayed by. It is incumbent on the EPO to prove the date of actual delivery where this date is in dispute. Therefore, if the EPO is unable to prove that a communication was delivered within 7 days of issuance, the deadline set by the communication will be extended by the number of days from the date on the document to its actual delivery date, minus 7.
For example, if the communication was issued on the 8th November 2023 setting a period of 4 months for response, the deadline for response would be the 8th March 2024. However, if the same communication were to arrive with the addressee 12 days late on the 20th November because of some delay, then the deadline would instead be 8th March + 5 days = 13th March 2024.
Importantly this new regime only applies to communications that issue from 1st November 2024. Therefore, the 10-day rule will still apply to a communication issued in October setting a deadline by notification.
We recommend that going forward, applicants treat all communications as not having the 10-day notification period to avoid any confusion.