Following the EPO administrative council announcement of 13 October 2023, Rule 126(2) EPC, commonly referred to as the 10-day rule, has now been abolished.
First reported last year, this law change came into effect on 1 November 2023. All communications from the EPO dated from 1 November will be deemed delivered on the date marked on the communication.
The new provision comes into effect for communications dated 1 November 2023 or later. Communications before this date will still be deemed delivered 10 days after their marked date, regardless of whether the deadline set for response falls after 1 November 2023.
For a first example, a communication dated 31 October 2023 setting a 4-month period for response will be deemed delivered on 10 November 2023. Therefore, the deadline for response will be 10 March 2024.
In a second example, a communication dated 1 November 2023 setting a 4-month period for response will be deemed delivered on the date of the communication (1 November). Therefore, the deadline for response will be 1 March 2024.
Applicants may contest the delivery date of a communication if it is received more than 7 days after the date marked on the communication. In such an event that the EPO cannot show that a document is received within 7 days of the date it bears, any period triggered by the receipt of such a communication will be extended by the number of days by which these 7 days are exceeded. For example, if an addressee received a document 12 days after the marked date, the period will be extended by 5 days.
In the unlikely event that a communication is never received, the EPO may be requested to prove that delivery occurred. If no proof can be given, the original communication will be voided and a new communication issued. The response period may then be calculated from the new communication.
It is worth remembering that extensions of time and further processing are often still available if deadlines are tight or missed altogether.