As has been widely reported, the so-called “10-day rule” at the European Patent Office is being abolished from 1 November 2023. This means that the manner in which many official deadlines are calculated will be changing.
What is the EPO 10 day rule?
Where a deadline is triggered by an EPO communication (for example, time limits for responding to an examination report), this deadline is calculated as a certain period from the date of receipt of the communication (EPC Rule 131(2)). The “10-day rule” in force for many years determined that the date of receipt was automatically deemed to be 10 days from the dispatch of the communication (EPC Rules 126(2) and 127(2)). This meant that, for example, a time limit of 4 months from receipt of a communication dated 1 January 2022 would expire 11 May 2022.
What has the 10 day rule been replaced with?
In view of the increased use of electronic communications and services such as the EPO Mailbox, the date of receipt of a communication will now be deemed to be the date of the communication itself. A time limit of 4 months from receipt of a communication dated 1 November 2023 will therefore expire on 1 March 2024. This will make the calculation of such deadlines simpler (indeed, a common examination question in the European Qualifying Examination was to calculate accurate deadlines!)
When will the EPO rule change take effect?
Note that this only applies to communications dated from 1 November 2023. A communication dated 31 October 2023 will still be automatically deemed to have been received ten days later, on 10 November 2023, and so will potentially trigger a deadline which expires later than one triggered by the 1 November communication.
The existing provisions for late receipt or non-delivery of communications are also being updated, to allow deadlines to be calculated from the date of actual receipt if this is more than seven days after the date of the communication.
Is there any action needed from Marks & Clerk clients?
There is no need for our clients to take any action as a result of this update – our communications have for many years routinely reported the actual deadline, including the 10-day rule where applicable – and this will continue. You may however notice some changes to our correspondence from 1 November, as we emphasise the abolition of the 10-day rule, to ensure you are aware of the new basis for calculation of time periods.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
