Introduction
From 1 November 2023, the way of calculating deadlines set by letters from the EPO is changing.1
Letters dated 1 November 2023 and after are deemed to have been received on the date of the letter and relevant deadlines will be calculated on this basis.
The practical effect of this change means that various response periods will be slightly shorter. It will, however, bring practice into line with a number of other IP offices including IP Australia.
How are deadlines calculated based on a letter dated on or after 1 November 2023?
The response deadline set by a letter from the EPO dated 1 November 2023 or after will be calculated by adding the period for responding to the date on the letter.
So, for example, a letter dated 1 November 2023, setting a 4-month period for response, will trigger a deadline of 1 February 2024 (Thursday).
What about calculation of deadlines for a letter dated before 1 November 2023?
Practice for letters dated before 1 November 2023 applied the legal fiction that the letter was deemed to have been delivered ten days after the date of the letter (to afford a date of deemed 'notification'), with the response period being calculated by adding response period to the date of deemed notification.
In practical terms, for letters from the EPO dated before 1 November 2023, deadlines determined by the date of a letter from the EPO were calculated by adding ten days to the date of the letter and then adding the period for response.
For example, a letter dated 30 October 2023, setting a 4-month period for response, would be deemed notified on 30 October 2023 + 10 days = 9 November 2023 and the response deadline would be 9 November 2023 + 4 months = 9 February 2024 (Friday).
The relevant rule providing these additional days was colloquially referred to as "the 10-day rule" and its original intention was to allow for time for postal delivery. However, following the rise of electronic communication, the rule has become more of an artefact.
What deadlines are affected?
This change of practice relating to deemed 'notification' applies to various EPO response deadlines, including responding to an examination report and responding to the notification of intention to grant.
Deadlines which are not set based on the date of the letter are unaffected by this change (e.g. a deadline which is dependent on the date mention of publication of a search report in the EPO bulletin).
What if a deadline falls on a weekend?
It is well-established that if a deadline falls on a weekend day (or another day when one of the filing offices of the EPO is not open, such as a public holiday) the deadline is automatically extended to the next day when all of the filing offices are open.
For example, if a letter setting a 4-month response period is dated 3 November 2022, the 4-month deadline is 3 November 2023 (Friday) + 4 months = 3 February 2024 (Saturday) so the deadline is automatically extended to 5 February 2024 (Monday).
The deadline is similarly extended if no mail is delivered or electronic communication cannot be received2 (and the unavailability of electronic communication is attributable to the EPO).
What if the letter is not received on the expected date?
Safeguarding procedures exist to cover delivery failures and delays.
In the event of any dispute concerning delivery, it is already incumbent on the EPO to establish (a) that the document sent by post was delivered to the addressee and to establish the date on which the document was delivered to the addressee; or (b) that the document delivered by electronic communication has reached its destination and to establish the date on which it reached its destination.
However, according to the newly amended rules, if the EPO establishes that the letter was delivered to the addressee (or reached its destination) more than seven days after the date on the letter, then the relevant deadline will be extended by the number of days by which the seven days were exceeded.3
Are there other safeguarding provisions?
In addition, the existing rules provide safeguarding provisions in the event of dislocation of mail delivery4 (for example due to the Icelandic ash clouds of 2010) and dislocation in the locality of a party due to an exceptional occurrence including a natural disaster, war or civil disorder (such as the Japanese earthquake of 2011 and the closure of banks in Greece in 2015).5
Conclusion
Bearing in mind that the '10 day rule' did not apply to every European deadline, from the point of view of Australian and New Zealand Applicants, this change simplifies European practice for deadline calculation.
However, it is important to remember that the assumed additional time, widely thought of as a 10-day "grace period", will no longer be available.
Footnotes
1 Rules 126(2), 127(2) and 131(2) of the Implementing Regulations to the European Patent Convention are being updated. The new rules apply to documents dated 1 November 2023 or later. OJ EPO 2022, A101.
2 Rule 134(1) of the Implementing Regulations to the European Patent Convention
3 Rules 126(2) and 127(2) of the Implementing Regulations to the European Patent Convention as amended
4 Rule 134(2) of the Implementing Regulations to the European Patent Convention
5 Rule 134(5) of the Implementing Regulations to the European Patent Convention
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