News

End of the 10-day rule

Posted: November 6, 2023

As part of the ongoing digital transformation, the European Patent Office (EPO) has officially abolished the 10-day rule for postal delays as of 1 November 2023.

New rules

The EPO has made this change because the vast majority of EPO correspondence is now delivered electronically via the EPO Mailbox service and therefore the impact of postal delays is essentially nullified.

This change introduces a new notification procedure where postal and electronic notifications issued by the EPO after 1 November 2023 will be deemed to occur on the date of the document (as opposed to the previous situation where the document was deemed notified 10 days after issuance).

Hence, deadlines set by EPO communications issued on or after 1 November 2023 will be calculated from the date of the communication, without the 10-day buffer.

Safeguards

In light of the rule change, the EPO has set the following safeguards to protect users.

As previously reported, under the new rules, if notification of a document is contested, the onus is on the EPO to demonstrate that the communication was delivered and the date of such delivery.

If the EPO can show that the document was delivered to the addressee within seven days, then the deadline is calculated from the date of the communication.

However, if the EPO cannot show that a document reached the addressee within seven days of the date of issuance, the deadline will be extended by a period corresponding to the delay.  For example, if a document is received 12 days after the date of the communication, the deadline would be calculated from the date of the communication and subsequently extended by five days (i.e. 12 days minus seven days).

Impact in practice

This change introduces a new, simpler way of calculating deadlines.  However, there will be a transition period over the next few months where some deadlines at the EPO will have the 10-day allowance for postal delays and some don’t, depending on whether the EPO communication was issued before or after 1 November 2023.

As the old and new rules for calculating deadlines overlap, our attorneys will work diligently with their clients to emphasise whether the 10-day period for postal delays applies to the calculation of the deadline when reporting EPO matters.

If you have any questions or would like to know more, please contact your usual Forresters representative or email us at info@forresters-ip.com.