Insights: EPO Notice regarding the 10 day rule

The EPO have published further information in a Notice in the Official Journal dated 6 March 2023 in preparation for the abolition of the 10 day rule (found here: EPO – Notice from the European Patent Office dated 6 March 2023 concerning amended Rules 126, 127 and 131 EPC). In particular, the Notice provides clarification regarding the amendments that are being made to Rules 126(2), 127(2) and 131(2) EPC, which currently give rise to the 10 day rule. These amendments are due to enter into force on 1 November 2023 and will strengthen the alignment of the EPO’s approach with that of the PCT.

As it stands, notifications from the EPO are deemed to have been delivered to the addressee on the tenth day following the date of the document to account for postal delays. When the changes come into force, the date upon which notification is deemed to have occurred will be the date shown on the document and deadlines will be calculated from this date, thereby ending the allowance of an additional 10 days.

The Notice also provides helpful updates in relation to transitional provisions. The EPO have confirmed that since it is the issuing of a document that triggers the notification process, the date of that document will be used to determine whether the new rules apply. Therefore, for any document which is dated 1 November 2023 or later, the new rules will apply and the document will be deemed delivered on the date is bears. If the date on the document is earlier than 1 November 2023, the 10 day notification fiction will remain applicable and the document will be deemed delivered on the tenth day, with any deadlines calculated therefrom (even if the deadline is 1 November 2023 or later). Accordingly, for those who docket the additional days upon notification, there is no need to change practice over the next six months until 1 November 2023.

The EPO Notice provides a few illustrative examples. One such example considers a document bearing a date of 31 October 2023 which is issued on this date and delivered to the addressee by postal services on 2 November 2023. Since the date of this document lies before 1 November 2023, it will be deemed notified on the tenth day following its dispatch, i.e. on 10 November 2023. This date will be used for the purpose of any time-limit calculation under Rule 131(2) EPC. For example, if the document triggers a two month deadline, this will expire 10 January 2024. On the other hand, another example in the Notice considers a document bearing a date of 2 November 2023 which is issued on this date and delivered to the addressee by postal services on 3 November 2023. Since the date of this document lies after 1 November 2023, the amended rules will apply and the document will be deemed notified on 2 November 2023. In this case, if the document triggers a two month deadline, this will expire 2 January 2024.

Safeguards will remain in place where a document is not received and the EPO is unable to prove that a document had been delivered. In this case, the document will be reissued with a new date. Where a document has been delivered late, the EPO will adopt similar provisions to the PCT. In particular, if notification is contested and the EPO is unable to prove that a document was delivered within seven days of the date it bears, any deadline calculated from the notification date will be extended by the number of days the document was received later than seven days after the date of the document. For instance, if the addressee received the document twelve days after the date it bears, the period will be extended by five days under the safeguard.

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