The Days are Numbered for the EPO's 10-Day Rule

Multiple reports reliably suggest that the European Patent Office ("EPO") will end the "10-day rule" for calculating deadlines on November 1, 2023. Thereafter, deadlines will be simply calculated on the basis of the date printed on the communication.

According to reports emerging from the most recent meeting of the EPO's Administrative Council, the infamous 10-day rule will cease to exist. The change will be effected by an amendment to Rule 126(2) EPC, which is being brought into alignment with the EPO's now ubiquitous use of electronic post.

The 10-day rule is an artifact from a time when EPO communications were predominantly dispatched by registered mail. The 10 days were a convenient period that would cover all but the most serious delays in postal delivery. Calculating a deadline with the 10 days requires counting the period given to respond starting from the 10th day following the date of the communication. Thus, when the office provided for, e.g., a four-month period, the addressee could be sure to have at least four months to respond after receipt of the communication. With the advent of electronic post at the EPO, this rule has become all but redundant. 

Attorneys and applicants alike will welcome the end of this rule, which caused confusion about deadlines and generated frequent inquiries about the availability of the 10 days and what the actual deadline might be. When the new rule comes into force, the period to respond will be calculated from the date on the communication, full stop.

Users of the European patent system will have to contain their excitement, however, as the revised Rule 126(2) EPC will take effect only on November 1, 2023. This long delay should provide sufficient time for the necessary adjustments to docketing practices.

In those cases where a document does not arrive on time (whether electronically or by post), the usual safeguards are in place and the burden will fall on the EPO to prove that the document arrived on time or at all.

Looking forward, those instructing their European counsel should bear in mind that they will have to provide instructions a bit earlier than they may have done in the past in order to comfortably meet deadlines. 

Stand by for an official announcement from the EPO.

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