Insights: The “10 Day Rule” is Going

The Chartered Institute of Patent Attorneys (CIPA) has reported that the Administrative Council of the EPO passed a package of rules, on 13 October 2022, which includes an amendment of Rule 126(2) EPC removing what has become well-known as the “10 day rule”. The package of rules is intended to “adapt the rules of the EPC to the digital age”.

The legal fiction of the “10 day rule” arose due to previous reliance on physical postal deliveries of communications and served to account for the delay between the issuance of communications by the EPO and  their receipt. To account for this delay, a communication is generally deemed to have been delivered 10 days after the date of notification, resulting in a grace period of approximately 10 days for deadlines set by reference to the date of notification. The grace period applies only to deadlines which are set with reference to the date of notification (for example, examination reports) as opposed to those triggered by certain events (for example, requesting examination and paying the fee within 6 months of the date of publication). The applicability and calculation of such deadlines has been a staple of the European Qualifying Examinations due to the nuance of having to first add the 10 day allowance, then the time period specified by the communication.

With significantly greater reliance on electronic issuance of communications, which are generally received on the same day, the new rule will specify that “the communication shall be deemed to have been delivered to the addressee on the date it bears”. Deadlines under the new rule will be undoubtedly simpler to calculate (since the 10 day grace period will no longer exist), though a safety-net that has been long enjoyed (and invariably relied on) by Applicants and Attorneys will be removed.

CIPA reports that the amended rule will only come into force on 1 November 2023, providing just over a year to prepare for the change. Additionally, it is reported that the EPO will institute a publicity campaign to assist in dealing with this rule change.

It is also reported that there will be safeguards in the rule for the rare case where a document sent by EPO (e,g, by registered post) is not delivered within seven days of the date it bears. In such cases, the date of delivery of the document will be deemed to be after the date it bears.

There has been mixed response to the news, though the change has previously been rumoured and perhaps does not come as a surprise given that the rationale for the “10 day rule” is outdated. Even so, the extra days have proven invaluable when receiving late instructions  (particularly in view of time differences), and will be mourned by European Patent Attorneys and Applicants as a means to avoid the costs associated with an extension or further processing. On the other hand, the amended rule will simplify the calculation of deadlines before the EPO and therefore provide greater certainty, which should be welcomed.

We look forward to a formal announcement by the EPO of the changes in due course.