As of 1 November 2023, the “10-day rule” will be abolished and will no longer apply to deadlines that are triggered by communications issued by the European Patent Office (EPO) on or after that date.
Background and current situation
Some deadlines set by the EPO (for example, the deadline for responding to an examination report) are calculated from the “date of notification” of the communication. Prior to the rule change, the date of notification is deemed to be 10 days following the date of transmission of the document. This is the case regardless of whether the document is transmitted by registered letter or by electronic communication. So, currently, an examination report issued on 1 June 2023 setting a four-month time limit would have a deadline of 11 October 2023. If a document arrives later than 10 days after it is dated, the deadline may be further extended.
What is changing?
The amended rules introduce a new “notification fiction”, in which the date of notification is deemed to be the date of the document. In other words, deadlines will be calculated from the date printed on the document. As before, these amended rules apply regardless of whether the document is transmitted by registered letter or by electronic communication.
As an example, under the new rules, a communication issued on 1 December 2023 setting a four-month time limit will have a deadline of 1 April 2024.
Of course, this rule change does not affect those deadlines which are set by a date other than a date of notification. This includes, for example, the deadline for filing an EPO opposition (which is set by the date of grant, not a date of notification).
Why is it changing?
The EPO considers the rule change to “support the ongoing digital transformation in the patent grant procedure at the European Patent Office (EPO) and strengthen alignment with the Patent Cooperation Treaty (PCT).”
In other words, the rule change acknowledges that many applicants and their representatives are already receiving communications electronically, and the simplification of the rules around the calculation of time limits encourages others to also adopt this method of receiving documents (so that there is no delay in the receipt of communications).
A disadvantage of the new rules is that affected time periods will be 10 days shorter, which can be significant for particularly short deadlines (for example, two months).
The amended rules enter into force on 1 November 2023 and will apply to deadlines set by communications issued on or after that date. Thus, the current “10-day rule” still applies to any notification issued prior to that date, even if the deadline is after. For example, a communication issued on 31 October 2023 will still benefit from the “10-day rule”.
Does any safeguard remain?
The previous 10-day rule provided a safeguard for the late delivery of documents (particularly those transmitted by post). While this has been abolished, a new “7-day safeguard” has been introduced for instances where documents have been delivered exceptionally late. If the EPO cannot show that a document has reached its destination within seven days, any deadline set by that document will be extended by the number of days by which these seven days are exceeded. As an example, if a document is received 12 days after the date printed on the document, the deadline will be extended by five days.
It is worth noting that unlike the “10-day rule”, which adds 10 days to the date printed on the document and then calculates the time limit, the “7-day safeguard” calculates the time limit and then adds the excess days.
Crucially, the onus will be on the applicant (or their representative) to assert that the document arrived late and that the deadline should be extended. Otherwise, the EPO will assume it was notified on the date printed on the document.
This new “7-day safeguard” brings the European Patent Convention into line with the PCT, which has a similar provision for the late delivery of documents.
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