The Administrative Council of the EPO confirmed in a press release of 13 October 2022 that that Rule 126(2)EPC, also known as the ’10-day rule’, will be abolished. This change will be effective as of 1 November 2023.
This change comes as part of a multi-package transformation to align patent granting processes at the EPO with commonplace digital practices. The 10-day rule allowed documents to be treated as if received from an additional 10 days to the date the document bore. For example, an examination report dated 20 January 2021 having a term for response of 2 months would have deemed to have been notified on 30 January 2021, and the term for response would have fallen on 30 March 2021. In reality, it is rare to rely on postal notification of documents from the EPO and most applicants and representatives instead receive documents electronically on day of transmission, if not instantly.
In the event that the date of notification of a document is under dispute, the onus will fall on the EPO to prove that the document was delivered on that date. The Administrative Council also reassures that safeguards will be in place for severely delayed notification of documents. The Guidelines for Examination at the EPO are due to be updated and in force on 1 March 2023, and it is expected that the EPO will provide further details on this matter, well before this and other changes relating to digitisation come into force.
Given the widespread use of the 10-day rule, it may be that deadlines are more often missed and requests for extensions and further processing become increasingly common. Applicants and attorneys have just under a year to implement changes to formalities and practice, and to inform clients accordingly, so as to be best prepared for the changes coming into play in November 2023.