Saturday, 15 October 2022

Deemed date of receipt looses 10 days per 1 November 2023: shortens times to respond to communications!

10 days

A news message on the epi website indicates that the Administrative Council of the EPOrg decided to amen to Rule 126(2) EPC relating to the date on which a document sent by the EPO is deemed to be delivered. Currently, a documnt is deemed delivered 10 days after the date on the document. This will changer per 1 November 2023: as of that date, the date on which the document is deemed to be delivered is the date on the document, similarly to PCT Rule 80.6, second part (with with some differences, in particular the EPO keeping the burden of proving the date of delivery in the event of dispute, whereas under PCT that burden is with the applicant). 

I heard that, surprisingly, only one delegation voted against the change. Even though the entry into force of the amended Rule is about a year away, changing such a well-established rule that is know world-wide to the disadvantage and risk of the applicant may cause some accidents, which cannot in all cases be repaired: not knowing that the rule has changed will make a request for re-establishment of missing, for example, the appeal period, have hardly any chance of success.

Note that the change has no impact on the 9m opposition period (triggered by the mention of the grant in the bulletin), the 1m period for paying the filing and search fee (triggered by the filing), the 6m period to pay the examination fee and file the request for  examination (triggered by the mention of the publication of the search report in the bulletin), the 31m period for EP entry (triggered by the earliest priority date), nor any other periods that are triggered by an event other than notification.
It does however affect all periods for responding to an invitation to remedy a formal deficiency (in most cases, 2m), an office action (usually 4m, sometimes 2m; extendible), a R.161/162 communication (6m), invitations to pay claims fees in case of non-unity (2m), the period for requesting further processing (2m), the appeal periods (2m for notice & fee, 4m for grounds), and all other periods  that are triggered by the notification of letter/invitation/communication! 

So, when,  a communication is issued on 17 November 2023 under Rule 58 to file a missing translation:
- if the current Rule would still have applied, a response would need to be filed by
         17/11/2023 + 10d + 2m -> 27/1/2024 (Saturday) [R.134(1)] -> 29/1/2024 (Mon);
- with the amended Rule however, a response is to be filed by
         17/11/2023 + 2m -> 17/1/2024 (Wed)

The Administrative council documents are currently not yet available on the EPO website (here).

Update 21 November 2022: the Administrative council documents are now available on the EPO website:

    • CA/D 10/22 Decision of the Administrative Council of 13 October 2022 amending Rules 46, 49, 50, 57, 65, 82, 126, 127 and 131 of the Implementing Regulations to the European Patent Convention; amended Rules 46, 49, 50, 57, 65, 82 in force as of 1.2.2023; amended Rules 126, 127 and 131 in force as of 1.11.2023;
    •  CA/30/22 Rev. 2 Legal changes to support digital transformation in the patent grant procedure (first basket): amendments to the EPC Implementing Regulations (Preparatory documents for the decision)

The epi news message is cited below (no changed made):