Any electronic communications sent from the EPO on or after 1 November 2023 will no longer have the "ten day rule" applied to them. This means that electronic correspondence are deemed to be delivered on the date printed on the correspondence, and any calculations of deadlines the recipient is required to reply by, are made from this date.
What is the ten day rule?
The 10 day rule was introduced by the EPO to factor in postal delivery delays when physical letters were the normal method of communication. Any deadlines in the letters were calculated from the date printed on the letter plus 10 days. This acted as a cushion for the letter to be sent and then delivered to the recipient.
For example, if a Notice of Intention to Grant letter was received from the EPO, setting a 4 month deadline to reply to, then the actual deadline to respond would be the date printed on the letter + 10 days + 4 months.
Why is the ten day rule being abolished?
In 2011 the EPO introduced the EPO electronic Mailbox which has grown in use. Now, 99% of EPO correspondence is sent electronically and postal service delays associated with physical letters are insignificant. Therefore from 1 November 2023, the date printed on an electronic communication is the date it is assumed to be received, and any deadlines for responding to the communication are calculated from this date. For example if the EPO sent a Notice of Intention to Grant on or after the 1 November 2023, then the deadline to reply by would be the date printed on the communication + 4 months.
What safeguards are in place instead of the 10 day rule?
If the recipient alleges a communication was never received, the EPO must prove otherwise. If the EPO is unable to do this then it must send a new communication with a new date, which resets any deadlines using the date of the new communication.
If the recipient alleges that the communication was received after the date printed on the communication then one of two scenarios could unfold:
- If the communication was delivered within 7 days of the date printed on the communication, no adjustment is made and the period for responding is calculated from the date printed on the communication.
- If the document was delivered 7 or more days after the date printed on the documents then it is considered exceptionally late and any deadlines are extended by the number of days difference between the date of the delivery and the date on the document, minus 7 days.
What action do I need to take?
There is no action that needs to be taken regarding this rule change – but you need to be aware that the additional 10 days to respond to EPO deadlines can no longer routinely be relied upon for communications sent from the EPO on or after 1 November 2023.
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.
