Abolition of 10 Day Rule

Abolition of 10 Day Rule 

The European Patent Office recently announced its intention to abolish the “10-day rule” provided by Rule 126(2) EPC from 1 November 2023.  Under this rule, an official communication sent from the EPO by registered letter is only deemed to have been delivered 10 days after its date of issue regardless of the actual date of delivery. This means that currently in the case of official actions which set a 4-month deadline to respond, in practice the deadline expires 4 months and 10 days after the date of issue of the Official Action.

This rule was of great importance when all official communications were sent by post, to avoid applicants being penalized due to postal delays. However, as the EPO now provides official communications to professional representatives electronically upon request, the EPO considers this rule to be superfluous in today’s digital age. Accordingly, when this rule is abolished in November 2023, official communications will be deemed to be delivered on their issue date regardless of whether they are received electronically or by post.

The EPO has further advised that safeguards will be available in cases where an official communication is not received or received more than 7 days late. In the event of a dispute, the EPO will be obliged to prove the date of delivery.

We do not expect this change to cause major issues for applicants once it is ensured that work practices and systems are adjusted to enable responses to be prepared and filed in accordance with the revised deadline.

Further details on the abolishment are due to be published by the EPO in the November edition of the Official Journal (due out at the end of November), while a Notice from the EPO and a Decision of the President of the EPO regarding the change will be published in the December edition of the Official Journal.

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