The European Patent Office (EPO) ends the so-called “10-day rule” from November 1st, 2023. This means that the manner in which many official deadlines are calculated will be changing.

What is the EPO 10-day rule?

The 10-day rule originated from the Rule 126 EPC. This Rule stated:

“(1) All notifications by postal services shall be by registered letter.

(2) Where notification is effected in accordance with paragraph 1, the letter shall be deemed to be delivered to the addressee on the tenth day following its handover to the postal service provider, unless it has failed to reach the addressee or has reached him at a later date; in the event of any dispute, it shall be incumbent on the European Patent Office to establish that the letter has reached its destination or to establish the date on which the letter was delivered to the addressee, as the case may be.”

Consequently, the Rule 126 created a legal fiction which postponed by 10 days the date on which the EPO’s notifications may be deemed to have been received by addressee. For example, if EPO issued a communication on February 1st, 2022 with a four-month period for response, and then, under the 10-day rule, the date of receipt of the communication would be February 11^th, 2022, and then the official deadline for response would be June 11^th, 2022, i.e., four months after the date of receipt.

One of reasons why this 10-day rule was introduced into the EPC was because in the old days, most of EPO notifications were delivered by mail, and it could take several days or even weeks for applicants, proprietors, agents, attorneys, etc., based in those member countries located far away from the EPO’s offices, to receive mailed notifications. Accordingly, the EPO introduced the 10-day rule to let the people have a reasonably long response time to the EPO notifications.

However, things have changed during the last two decades because the EPO has been doing digital transformation in terms of patent prosecution procedure. The Office prefers to delivering official notifications by electronic means, rather than in paper format. With this change, the EPO is responding to the increasing use of electronic communication, which makes delays unlikely. Today, most communications emitted by the Office are already sent electronically, allowing notifications to be delivered on the day of sending.

Accordingly, the EPO believed that it was time to modify the Rule 126 and abolish the 10-day rule.

What has the 10-day rule been replaced with?

Even though the 10-day rule is being abolished from November 1^st, 2023, this does not necessarily mean that every single EPO notification will be deemed to have been received on the day it is officially dated. The new rule, which has replaced the 10-day rule, exists in the context of international applications under the PCT, e.g., Rule 80.6 PCT:

“ Irrespective of the date on which such a document or letter was mailed, if the applicant offers to the national Office or intergovernmental organization evidence which satisfies the national Office or intergovernmental organization that the document or letter was received more than seven days after the date it bears, the national Office or intergovernmental organization shall treat the period starting from the date of the document or letter as expiring later by an additional number of days which is equal to the number of days which the document or letter was received later than seven days after the date it bears.”

Unlike the 10-day rule, which shifted the starting point of the relevant periods, this new rule postpones their end date. In other words, the starting point for the relevant periods will always be the date shown on the communication, while the ending point may vary. Typically, there are three scenarios as follows:

1.    When the actual date of receipt of the communication by the addressee is indeed the date it bears, e.g., the communication is sent by electronic means, the associated period for responding will not be subject to any postponement.

2.    When the actual date of receipt is 7 days or less after the date shown on the notification, the associated period for responding will not be postponed either. Therefore, the addressee will have a few days less to respond to the notification than the specified period.

3.    When the actual date of receipt is more than 7 days after the date shown on the communication, the associated period will be postponed. To calculate this postponement, one must calculate the difference between the actual date of receipt and the date shown on the communication, then subtract 7 days from this difference.

In conclusion, the abolition of the 10-day rule by the EPO means that deadlines for responding to official notifications have been shortened. Consequently, applicants as well as patent practitioners should be aware of the latest rule and make corresponding adjustments in terms of response deadlines.

Please note that the new rule only applies to communications dated from November 1^st, 2023. A communication dated October 31^st, 2023 will still be automatically deemed to have been received ten days later, on November 10^th, 2023.