The European Patent Office (EPO) has published further guidance ahead of the abolition of the EPO 10-day rule.  The guidance was published in a Notice in the Official Journal dated 6 March 2023 and can be found here.  Specifically, the recent guidance clarifies the amendments to EPO Rules 126(2), 127(2) and 131(2) EPC, which currently give rise to the 10-day rule.  The amendments to these rules are due to enter into force on 1 November 2023.

Currently, a document sent by the EPO is deemed to be delivered ten days from the date on which the document was sent, to allow the time for postal delivery. These 10 days were added to the period of time set by the document for any deadline.  Now that the EPO sends its communications electronically, the 10-day rule is considered to be obsolete, hence the amendments to the above EPO rules to remove it.

From 1 November 2023, notification of a document will be deemed to occur on the date shown on the document, and deadlines will be calculated from that date.  Thus, there will be no allowance of an additional ten days before calculating deadlines.

Importantly, the Notice has provided clarification in relation to transitional provisions.  It is been confirmed that the date of the document will determine whether the new rules apply (i.e., whether the ten-day rule is to be followed, or not).  The EPO confirm that any document dated 1 November 2023, or later, will adhere to the amended rules coming into force on 1 November 2023 and the document will be deemed to have been delivered on the date shown on the document.  If the date on the document is prior to 1 November 2023, then the 10-day rule will still apply and the document will be deemed to have been delivered on the tenth day after the date on the document and any deadlines will be calculated from this date.

As an example, a document bearing a date of 31 October 2023 is issued on this date and delivered to the addressee by postal services on 2 November 2023. Since the date of this document (31 October 2023) lies before 1 November 2023, it will be deemed notified on the tenth day following its dispatch, i.e. on 10 November 2023, and this date will be used for the purpose of time-limit calculation under Rule 131(2) EPC.  So, if the document sets a two-month deadline for response, the two months is calculated from 10 November 2023 and the deadline is, therefore, 10 January 2024.

On the other hand, if a document bearing a date of 2 November 2023 is issued on this date and delivered to the addressee by postal services on 3 November 2023. Since the date of this document (2 November 2023) lies after 1 November 2023, the revised notification fiction and time-limit calculation rules will apply. Accordingly, the document will be deemed notified on 2 November 2023. This date will be used for the purpose of time-limit calculation under Rule 131(2) EPC.  As such, if the document sets a two-month deadline for response, the two months is calculated from 2 November 2023 and the deadline is, therefore, 2 January 2024.

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