Has the EPO abolished the 10-day rule? The European Patent Office’s (EPO) 10-day rule will not apply to any documents dated 1 November 2023 onwards.
What is the 10-day rule?
The EPO currently applies a fictional date of delivery for all documents notified by means of postal and electronic means.
All notifications by postal services are deemed delivered to the addressee on the tenth day following their handover to the postal service provider, unless they failed to reach the addressee or reached the addressee at a later date (Rule 126 EPC). Similarly, all notifications sent by means of electronic communication are deemed delivered to the addressee on the tenth day following their transmission, unless they failed to reach their destination or reached the destination at a later date (Rule 127 EPC).
These fictional dates of delivery apply to decisions, summonses, notices and communications that the EPO is obliged to notify ex officio (Article 119 EPC).
Thus, such documents are deemed delivered on the tenth day following the date printed on the document. For example, a document dated 10 October 2023 would be deemed delivered on 20 October 2023. A deadline set as, for example, 4 months from the notification of the document dated 10 October 2023, would therefore expire on 20 February 2024 (not 10 February 2024). This is known as the “10-day rule”.
What is changing?
For all documents dated from 1 November 2023, the above fictional date of delivery (the 10-day rule) will no longer apply. From this date, a new date of delivery will apply, and documents notified by postal and electronic means will be deemed delivered on the date printed on the document. Thus, the 10 days will no longer be added.
For example, a document dated 1 November 2023 will be deemed delivered on 1 November 2023 and a deadline set as, for example, 4 months from the notification of the document will expire on 1 March 2024.
When is the rule being abolished?
The 10-day rule will no longer apply for any documents dated 1 November 2023 onwards.
Why is the rule being abolished?
The EPO has stated that abolishing the rule will provide simplification for users, and bring the EPC and PCT notification regimes closer together. The change also reflects the fact that the EPO now issues most documents electronically, such that the rationale for the 10-day rule has become redundant.
What happens if a document is not delivered on the date indicated?
The EPO will, from 1 November 2023, continue to provide safeguards to users if they do not receive a document or receive it exceptionally late. In this circumstance, the EPO retains an obligation to prove that the document was delivered on the date of delivery.
If the EPO cannot prove that a document has been delivered, then the date of delivery will not apply, and any period linked to that document will not be considered to have started. The relevant document will be re-issued with a new date, thus providing a new delivery date and re-starting any relevant time period. It is expected that this situation will only occur in exceptional circumstances.
If the document is delivered exceptionally late, and the EPO cannot prove that the document was delivered within 7 days of the date printed on the document, any period linked to the document will be extended by the number of days by which the 7 days have been exceeded. However, if the EPO can prove that the document was delivered within 7 days of the date printed on the document, no extension to the period will be provided.
For example, if the document was received 12 days after the date printed on the document, the period will be extended by 5 days. If the document was in fact received 4 days after the date printed on the document, there will be no change to the calculation of the relevant period.
As electronic delivery is very reliable, we expect that these provisions for late delivery of a document will be generally irrelevant to firms such as ours that have adopted an electronic mailbox system.
Additionally, in some cases, extensions of time and further processing may remain available, as is currently the case.
Further Information
Further information can be found in the “Notice from the European Patent Office dated 6 March 2023 concerning amended Rules 126, 127 and 131 EPC” in the EPO Official Journal (at EPOJ, 2023, A29) which describes how the EPO will actually apply the new rules.
Please get in touch with your normal advisor at Appleyard Lees, or Kate Hickinson, if you would like any further information on these changes.
