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From 1st November 2023, the “10-day rule” for notifications will no longer apply. For documents dated on or after 1st November 2023, deadlines will normally be calculated from the date of the letter, not from 10 days after the date of the letter.
What is the “10-day rule”?
Currently, a document is deemed to be delivered to the addressee on the tenth day following its handover to the European Patent Office’s (EPO) postal services or on the tenth day following its transmission by electronic communication. This is known as the “10-day rule”.
The rationale behind the “10-day rule” has historically been to account for postal and courier delays in delivering documents sent by the EPO. However, in our increasingly digital world the revised provisions reflect the principle of instantaneous notification. This change is part of an ongoing digital transformation in the patent grant procedure at the EPO.
What is changing and how will this affect me?
Amendments to Rules 126(2), 127(2) and 131(2) EPC, will come into force on 1st November 2023. If you would like to read more about these changes, a notice from the EPO dated 6th March 2023 provides further detail on how the new rules will be applied.
In accordance with the revised provisions, both electronic and postal notifications are deemed to occur on the date of the document. The date of the document, according to established EPO practice, is the date on which it is handed over to a postal service provider in the case of a postal notification or the date of its electronic transmission to the Mailbox in the case of electronic notification.
For example, under the new provisions an examination report issued bearing a date of 15th November 2023 and setting a time limit of four months is deemed notified on the date it bears i.e., 15th November 2023 and the date for reply is set as 15th March 2024. This differs from the current provisions where the document would be deemed notified on 25th November 2023 and the date for reply would be set as 25th March 2023.
What will happen if I do not receive my document, or I receive it late?
You can dispute any aspect concerning the delivery of a document and in such cases, the EPO is obliged to prove that the document was delivered, as well as the date of delivery.
Safeguards are provided if:
(1) you do not receive a document; or
(2) you receive the document exceptionally late
The safeguards will apply to both postal notification and electronic notification, although they are expected to rarely play a role for electronic notification, given the reliability of the EPO’s Mailbox service.
Document not received
As is currently the case, if the EPO is unable to prove that a document has been delivered, a new document will be issued with a new date. The original document will be disregarded and any relevant deadlines will be calculated from the new date.
Document received exceptionally late
If the EPO cannot show that a document has been delivered within 7 days after the date of the document, the deadline will be extended by the number of days by which the seven days are exceeded. For example, if a document is received 12 days after the date it bears, any deadlines calculated from the date of the document would be extended by 5 days.
If, however, the document was delivered within 7 days of the date it bears, e.g. 6 days after the date of notification, no adjustment will be made.
In our experience, many European attorneys have chosen to report deadlines without adding the 10-days. As such, the way in which deadlines will be reported to you will not change. However, going forward European attorneys will not have an additional 10-days in hand in the way that they used to. This may not be a significant change for cases when the response period is quite long, but it may be important for foreign applicants faced with a shorter deadline (e.g., 1- or 2-month deadlines).
Other extensions may continue to be available on request and/or payment of a fee.
Understanding the nuances of patent procedures and staying up to date with the latest changes can be challenging. If you have questions about the new rules or need assistance navigating the European and UK patent landscape, our team of experienced attorneys is here to help.
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