The European Patent Office (EPO) has provided an update to how it will apply changes to its communications following the end of the “10-day rule”. As reported by Forresters, the Administrative Council of the EPO decided to abolish the 10-day rule from 1 November 2023.
The change is in response to the shift by the EPO from issuing physical documents by postal service, to electronically by email. The EPO issues 99% of all documents via its EPO Mailbox service, which launched in 2011.
The changes introduce a new notification procedure where postal and electronic notifications will be deemed to occur on the date of the document.
Under the amended Rules 126(2) and 127(2) EPC, the date of the document is the date on which it is handed over to a postal service provider or transmitted electronically to the Mailbox. The word “letter” has been replaced with “document” in the first sentence of amended Rule 126(2) EPC to clarify that the relevant date of notification is the date printed on the document, not any other date stamped on the envelope.
Safeguards in place
The EPO continues to provide safeguards to users who do not receive a document or receive it late. The burden of proof in cases of disputed notification remains with the EPO, which must prove both the delivery of the document and the date of its delivery. Users can dispute any aspect of the delivery, including the date, and the steps taken by the EPO will depend on the outcome of the dispute.
Under the new rules, if notification is contested and the EPO cannot show that a document reached the addressee within seven days of the date it bears, a period triggered by the deemed receipt of that document will be extended by the number of days by which these seven days are exceeded. Therefore, where a document is received within seven days of its date, any deadline set by the receipt of that document will not be extended. However, if a document is received more than seven days after the date it bears, such a deadline would be extended – for example, where a document is received twelve days after the date it bears, the deadline would be extended by five days (i.e. twelve minus seven).
What does this mean in practice?
There will be a need to adapt to the new way of calculating deadlines. Being aware of this change and staying in close communication with your Forresters representative will ensure that you are fully prepared as the amended rules come into effect.
