Are the days numbered for the ’10-day rule’ at the EPO?
Rule 126(2) EPC, more commonly referred to as the ‘10-day rule’, deems most, but not all, communications from the EPO to be delivered 10 days from the date on the communication. Since the deadline for response to the communication is usually calculated from the date of delivery, the effect of the rule is to allow an extra 10 days in which to respond.
The original idea of the rule was to allow for delays in postal delivery. However, with the increasing reliance on electronic communication and therefore the removal of a postage delay, it has become common among attorneys and clients to use the 10 days as an unofficial grace period, giving leeway on official deadlines.
The EPO Committee on patent law preliminarily approved a proposal to remove the 10-day rule at a meeting on 12 May 2022, with the proposed abolition being brought into effect in February 2023. Whilst this decision was delayed by the Administrative Council in June 2022, it would appear that the removal of the unofficial grace period is highly likely if not inevitable.
The proposed removal of the 10-day rule is part of a transition to a more digital patent grant procedure. In the event of a disputed date of delivery which can be shown to be 7 or more days from the date of the communication, the burden of proof will lie with the EPO to determine when the document was actually delivered.
On a first look, the proposal seems reasonable, given the origins of the rule and the nature of near instantaneous communication that has become the norm. That said, removing the 10-day rule will involve a deal of adjustment from both attorneys and clients. It seems likely that the number of requests for extensions of time periods and requests for further processing will increase in place of the outgoing ‘grace period’.