Insights: The end of the EPO’s ten-day notification rule

The EPO’s plans to abolish the 10-day notification rule will come into force on 1 November 2023. With just a month to go, here is a summary of the change. We first reported the change in our bulletin back in April 2023, which is available here.

The current provisions

Certain EPO communications set a period for response that runs from the deemed notification of that communication. However, the deemed date of notification is not the date provided on the communication – the EPO accounts for potential delays in postal services by using a legal fiction that deems notification to occur 10 days after the date of the communication.

• Eg., a communication dated 12 October 2023 setting a four-month period for response.
  • Date of notification will be deemed to be 22 October 2023.
  • The four-month period will then expire on 22 February 2024.

However, this does not apply to all communications and confusion can arise in how to apply the rule. This should end now that the ten-day notification rule is about to be abolished.

The new provisions

For EPO communications setting a period for response dated 1 November 2023 or later, the period for response will now start on the date of the communication which is of course far more intuitive.

• Eg., a communication dated 6 November 2023 setting a four-month period for response.
  • The four-month period will expire on 6 March 2024.

Transitional provisions?

There are no transitional provisions. For communications dated before 1 November 2023, the old ten-day notification rule will still apply in their usual way irrespective of whether or not the deemed date of notification falls after 1 November 2023.

• Eg., a communication dated 27 October 2023 setting a four-month period for response.
  • Date of notification will be deemed to be 6 November 2023.
  • The four-month period for response will then expire on 6 March 2024.

What if a communication is never received?

The EPO can be challenged to demonstrate delivery of a communication where it is believed the communication was not delivered. If the EPO is then unable to prove delivery, the first communication is disregarded, and a replacement communication will be issued. The date of this replacement communication will start the period for response.

What if a communication is delivered late?

Delivery will only be considered late if it is more than 7 days after the date given on the communication. However, when a communication is delivered late, the period for response still starts on the date of the communication – but the period for response is extended by the number of days late delivery occurred, accounting for the expected 7-day delivery window. Hence, if delivery occurred 10 days after the date of the communication, the period for response is extended by 3 days.

What changes need to be made?

In practical terms, the changes are not likely to be noticed by our clients because we will continue with our standard practice of advising of all due dates, along with extensions that may be available.

Clients who check due dates need to be aware of the changes described above. Also, clients with docketing software that automatically generates due dates need to be aware of the changes to ensure the software implements the changes correctly.

If you have any questions, please do not hesitate to contact your usual Boult Wade Tennant adviser.