It has been reported on 14 October that the Administrative Council of the EPO has passed changes to the rules of the EPC relating to the date on which a document is deemed to be delivered.
Under the current rules, documents sent by the EPO are deemed to be delivered ten days after the date printed on the document. This is generally referred to as the ‘ten day rule’. This approach was introduced when documents were typically sent via postal services, to account for the time the document would be in transit. The effect of this is generally to set an approximate 10 day grace period on deadlines set by reference to the date on the document, for example on the 4 month term for responding to an EPO office action.
The Administrative Council has now decided to remove the ‘ten day rule’ allowance, with the aim of modernising the rules of the EPC in light of the current practices in the digital age. Thus, when the change takes effect, the ten days will no longer be available, and deadlines will be calculated as the stated number of months after the date printed on the document.
The EPO "10 day rule" is currently provided by Rule 126(2) EPC.
The changes will come into effect on 1 November 2023. After this date, documents sent by the EPO will be deemed to be delivered on the date of the document. This gives applicants and representatives just over a year to adjust their work practices and update their systems accordingly. It is not yet clear what transitional provisions may be put in place.
There will be safeguard provisions in place that allow for a document to be deemed delivered after the date on the document where the document has failed to reach the addressee by this date. These will apply only rarely.
This rule change is not particularly welcome, as the ten day rule has been a useful feature of the European patent system since its inception in the 1970s. It seems possible that more deadlines will be missed when the rule change takes effect. Missed deadlines can in some circumstances be remedied by further processing, which carries an official fee.
Removing the 10-day rule will simplify calculation of EPO deadlines, but lessen the time applicants will have to respond to notifications. The shift also reflects the widespread move of patent attorney firms in recent years to a digital as opposed to paper based document management system.
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