Effective from 1st November 2023, the EPC Rule 126(2), commonly referred to as “the ten-day rule,” has been abolished.
What was the rule and why the change?
The ten-day rule, Rule 126(2), previously stipulated that documents dispatched by the EPO were considered delivered ten days after the date indicated on the document. This allowed for a grace period of ten days to accommodate delivery time, which was added to the response deadlines for EPO documents.
The rationale behind discontinuing the ten-day rule lies in EPO’s shift towards a fully digital document delivery system. With this transition, the EPO has determined that the ten-day rule is no longer necessary. Consequently, starting 1st November 2023, the date printed on the document will be deemed the date of delivery, eliminating the ten-day grace period.
For EPO communications dated on or after 1st November 2023, the date on the document will be considered the official date of delivery. This change effectively ends the ten-day grace period. As an illustration, a communication dated 13 November with a four-month response period would now have a deadline of 13th March (instead of the previous calculation of 23rd March).
Safeguards in case of delay in delivery of the notification ?
In the event of a delay in the delivery of a notification, Contesting Receipt of Communications from the EPO comes as safeguard to Rule 126(2). If an addressee contests the delivery of a communication from the EPO, the EPO is obligated to prove the communication’s date of delivery. Failure to provide such proof results in the reissuance of the communication with a new date. Any deadlines set by the new communication begin on this new date, while deadlines associated with the undelivered communication are considered not to have commenced.
Simultaneously, Rule 131(2), has been updated as safeguard to Rule 126(2), commonly known “the seven-day rule”. Under this updated rule, if a communication is delivered within seven days of the date marked on it, no adjustments are made, and the response period starts on the noted date. However, if the EPO establishes a delivery delay of more than seven days, the response deadline is extended by the difference between the actual delivery date and the date on the communication, minus seven days.
Impact on Stakeholders
The impact of these changes on applicants, agents, and representatives includes both benefits and disadvantages. The benefits encompass a reduction in complexity regarding response deadlines and the removal of disparities between deadlines set by communications and other actions. On the downside, there is effectively a 10-day reduction in the time available to respond to EPO communications sent via post, potentially impacting shorter response times.
To navigate these changes, stakeholders are advised to ensure timely reporting of communication(s) from European representatives, allowing sufficient time to develop responses within the adjusted deadline. Applicants, agents, and representatives who follow the practice of calendaring the response dates with 10-days grace period should also update their docketing systems to reflect the new calculation for EPO notifications issued from 1st November 2023, onwards.