January 3, 2023

Abolition of the 10-day rule in the proceedings before the EPO

We are immersed in a digital age that forces the European Patent Office (EPO) to update the regulations. That is why the EPC Rule 126(2), known as the 10-day rule, will cease to have effect on 1 November  2023. The EPO is preparing legal changes to the digital transformation of its patent grant process. The abolishment of the 10-day rule (Rule 126 (2) EPC) is part of such digital transformation, and this will affect most of the time limits in proceedings before the EPO.  

The EPO 10-day rule originated to take into account delays in receiving documents by post. For this reason, many EPO deadlines are calculated on the basis of the date of delivery “supposedly by post” of official EPO communications. However, it has continued to be applied even as the EPO has modernized towards electronic communication. 

Essentially, this means that the EPO provisions on notification will be aligned with the PCT, so that the date of a communication will be considered the date of notification and be decisive in determining the expiry of an applicable deadline.  

In this context, on 1 November 2023, new rules on notifications and calculation of time limits will enter into force – Rules 126(2), 127(2) and 131(2) EPC – replacing the 10-day rule. In the new regulation, the EPO proposes measures to extend deadlines in cases where the delivery of a document is contested, and it is possible to establish that a document was delivered to the addressee more than seven days after the date it bears. In this case, the EPO will have the burden of proof to establish  when the document was delivered, unlike the PCT, which places the responsibility on the applicant to prove late receipt. 

Author: Sònia Girona.