Abolition of the 'Ten-Day Rule'

As of 1 November 2023, the European Patent Office (EPO) will abolish its ‘ten-day rule’.

The amendments to Rules 126(2), 127(2) and 131(2) European Patent Convention (EPC) relate to documents such as decisions, summonses, notices, and communications that the EPO is obliged to notify ex officio in accordance with Article 119 EPC. 

 

The current situation

The present version of the Rules states that the date on which such documents are deemed to be received by the addressee is ten days after the date on the document. This is commonly referred to as the ‘ten-day rule’. The time limit then runs from this deemed date of receipt of the document.

The established EPO practice is that the date of the document is when it is posted in the case of postal notification or the date of its electronic transmission to the EPO Mailbox for electronic notification. To ensure this, the EPO currently post-dates its documents to allow them to be processed internally and issued on the date they bear.

 

The EPO issues most of its documents electronically

The EPO Mailbox, which provides electronic notifications, now covers 99% of all documents that the EPO issues. Therefore, the EPO considered that it was necessary to update the EPC Rules to reflect this move to digital communication away from conventional post. 

 

The new situation

Amended Rules 126(2) and 127(2) EPC will determine that the date on which any of these documents is deemed to be received is the date on the document itself, whether the document is sent by mail or electronically.  Therefore, the date from which the time limits run is the date on the document itself. Thus, effectively abolishing the ‘ten-day rule’.

 

The safeguards

The amended rules, however, contain safeguards if there are any irregularities in delivery, either by mail or electronically.  The EPO will continue to be obliged to prove that the document was delivered and the date of its delivery.

If the EPO cannot prove that a document has been delivered, it will consider that a time limit for a specific document will not have commenced. It will then reissue the document with a new date and the time limit will begin on that revised date instead.

If the EPO can prove that the document was delivered and it can also show the date of delivery, there are two possibilities. If the document was delivered within seven days of its date, the time limit will start on the original date stated in the document.

If the document was delivered more than seven days after its date, however, the EPO will extend the time limit by the number of days from the date on the document to the delivery date and then subtract seven days. Therefore, if a document was received 12 days after the date on the document, the EPO will extend the time limit by five days.

If you require advice on this subject and how the amendments will affect your business, please contact your patent attorney at Mathisen & Macara LLP.