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End of an era for users submitting patent applications with the EPO: The “10-day-rule” is over

By: Lorena Vega

September 26, 2023

On November 1, 2023, the so-called “10-day rule” will disappear for all users who carry out procedures before the EPO[1] (European Patent Office).

The “10-day Rule”

    Until now, all notifications issued by the EPO made both by postal services (Rule 126(2) EPC[2]) and by electronic means (Rule 127(2) EPC), were deemed to be delivered to the addressee within a notional period of 10 calendar days from the day following the date printed on the notification. This benefited the applicants, who had 10 additional days to respond to communications issued by the EPO involving a deadline (Article 119 EPC). This was known as the “10-day Rule”.

    For example, a document dated September 10, 2023 indicating a deadline of 2 months to comply with a requirement, would be considered to be delivered ten calendar days later (September 20, 2023) and the deadline would start to run from that day. In this case, the due date to file the reply would be November 20 instead November 10, as it would be expected.

    All good things come to an end

    For all documents received on or after November 1, 2023, this rule will no longer apply, and the date printed on the notification will determine the starting date for calculating the time limit.

    The reason provided by the EPO for abolishing the old system from which many applicants and European Patent Agents have been benefited relies on the aim to harmonize procedures for calculating time limits at the EPO and WIPO[3] (World Intellectual Property Office) and in the digital transformation of the proceedings at the European Office[4]. Nowadays, 99% of the documents issued by the EPO are sent electronically. In addition, this practice was confusing for applicants outside Europe, as this did not occur in other jurisdictions.

    The use of digital systems allows receiving the information the same day it is sent and, for this reason, granting additional days would be unjustified. This will also eliminate confusion as to when to apply the rule, since it could not be used to all deadlines established by the EPO.

    The change only affects deadlines established for notifications issued on or after November 1, 2023. Therefore, deadlines arising from letters sent before this date, but expiring after November 1, 2023, will not be affected and the ten-day Rule will continue to apply.

    A new way of establishing the date of receipt of documents: The “Seven-day Rule”

    There are still users who do not receive correspondence electronically or there may be computer errors that might cause a document to be received exceptionally late. For this reason, the EPO will also implement a system for all communications issued from November 1, 2023, so that applicants are not affected if a communication is received exceptionally late.

    1. If a document is received within seven days after the date indicated in the communication, the deadlines are calculated with respect to such date. For example, if a document dated December 5, 2023, with a two-month response deadline is received on December 9, 2023 (within seven days of the date indicated on the document), the response deadline would be February 5, 2024.
    2. If a document is received more than seven days after the date indicated on the document, the difference in days between when the document was received and the seven courtesy days will be added to the due date. For example, if in the above case the document is received on December 15, 2023, the deadline for filing a response would be February 8, 2024.
    3. If the document is not received, and the EPO cannot prove that delivery occurred, the communication will be invalidated, and the Office will issue a new one.

    In summary, this modification simplifies the calculation of time limits and is harmonized with the PCT system.

    More information can be found in “Notice from the European Patent Office dated 6 March 2023 concerning amended Rules 126, 127 and 131 EPC”[5].

    [1] EPO = European Patent Office

    [2] EPC = European Patent Convention

    [3] WIPO = World Intellectual Property Office, Rule 80.6 PCT

    [4] OJ EPO 2022, A114

    [5] OJ EPO 2023, A29

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