No more 10 days :(
Overview of notification and time-limit calculation rules before and after 1 November 2023
Today, amended Rules 126(2)/127(2)/131(2) EPC entered into force, abandoning the 10-day legal fiction for deemed notification as applicable for time limits triggered by a notification, and replacing it by the date of dispatch and a compensation for late receipt (similar as in PCT Rule 80.6).
See:
- OJ 2022, A101 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 (CA/D 10/22), article 1.10-12, art 2 second sentence and art 3 second sentence
- OJ 2022, A114 Notice from the European Patent Office dated 25 November 2022 concerning legal changes to support digital transformation in the patent grant procedure, section IV.
- OJ 2023, A29 Notice from the European Patent Office dated 6 March 2023 concerning amended Rules 126, 127 and 131 EPC
OJ 2023, A29 provides:
II. Fiction of notification on the date of the document
Amended Rules 126(2) and 127(2) EPC introduce a new notification fiction, according to which postal and electronic notification are deemed to occur on the date of the document. As a result, the current notification fiction by which a document is deemed to be delivered to the addressee on the tenth day following its handover to the postal services or on the tenth day following its transmission by means of electronic communication ("ten-day rule") will be abandoned from 1 November 2023.
According to established EPO practice, the date of the document is the date on which it is handed over to a postal service provider in the case of postal notification or the date of its electronic transmission to the Mailbox in the case of electronic notification. To ensure this, the EPO post-dates its documents to allow them to be processed internally and issued on the date they bear. The EPO also has a reliable system for tracking documents dispatched using postal services or transmitted electronically via the Mailbox.
In the case of postal notification under Rule 126(2) EPC, the relevant date for the purpose of applying the notification fiction is the date printed on a document, e.g. a communication from the EPO, and not any other date possibly stamped on the envelope carrying that document by a postal service provider. To reflect this, the word "letter" has been replaced with the word "document" in the first sentence of amended Rule 126(2) EPC.
As is the case today, electronic notification under Rule 127(2) EPC will not occur before the date of the document. Accordingly, even if the addressee can access the document via the Mailbox before this date, the decisive date for the purpose of the notification fiction under Rule 127(2) EPC is the date of the document.
[...]
IV. Calculation of periods in proceedings before the EPO
The notification fiction provided for in Rules 126(2) and 127(2) EPC is relevant in the context of time-limit calculation under Rule 131(2) EPC. Since these provisions are intrinsically linked, some clarification has been provided in Rule 131(2) EPC to take better account of the revised notification fiction.
Under amended Rule 131(2) EPC, in the case of notification, it is the deemed receipt of the document notified that will constitute the relevant event for the purpose of time-limit calculation. As a result, periods triggered by notification will start running from the deemed receipt of a document, i.e. the date of the document under Rules 126(2) and 127(2) EPC.
As the EPO will continue to apply a notification fiction, as is the case today, it will be relieved from establishing the actual date of receipt of each document for the purpose of Rule 131(2) EPC, apart from in exceptional cases of dispute.
V. Entry into force and transitional provision
The amendments to Rules 126(2), 127(2) and 131(2) EPC will enter into force on 1 November 2023. They will apply to documents notified by postal services or electronic means on or after this date. Since the issuing of a document is the event triggering the notification process, the decisive date for determining whether the revised notification and time-limit calculation rules apply to a specific document notified is the date of that document. Examples 2 and 3 of OJ 2023, A29 illustrate the application of this transitional provision.
Annexes
A) Amended Rules 126(2), 127(2) and 131(2) EPC as
in force as of 1/11/2023
Amended Rule 126(2) EPC as in force as of 1/11/2023:
(2) Where notification is effected in accordance with paragraph 1, the document shall be deemed to be delivered to the addressee on the date it bears, unless it has failed to reach the addressee. In the event of any dispute concerning the delivery of the document, it shall be incumbent on the European Patent Office to establish that the document has reached its destination and to establish the date on which the document was delivered to the addressee. If the European Patent Office establishes that the document was delivered to the addressee more than seven days after the date it bears, a period for which the deemed receipt of that document is the relevant event under Rule 131, paragraph 2, shall expire later by the number of days by which the seven days were exceeded.
Amended Rule 127(2) EPC as in force as of 1/11/2023:
(2) Where notification is effected by means of electronic communication, the electronic document shall be deemed to be delivered to the addressee on the date it bears, unless it has failed to reach its destination. In the event of any dispute concerning the delivery of the electronic document, it shall be incumbent on the European Patent Office to establish that the document has reached its destination and to establish the date on which it reached its destination. If the European Patent Office establishes that the electronic document has reached its destination more than seven days after the date it bears, a period for which the deemed receipt of that document is the relevant event under Rule 131, paragraph 2, shall expire later by the number of days by which the seven days were exceeded.
Amended Rule 131(2) EPC as in force as of 1/11/2023:
(2) Computation shall start on the day following the day on which the relevant event occurred, the event being either a procedural step or the expiry of another period. Where the procedural step is a notification, the relevant event shall be the deemed receipt of the document notified, unless otherwise provided.
B) Rules 126(2), 127(2) and 131(2) EPC as in force
until and on 31/10/2023
For documents send before today, the previous versions of the rules continue to apply:
Rule 126(2) EPC as in force
until and on 31/10/2023:
(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.
Rule 127(2) EPC as in force until and on 31/10/2023:
(2) Where notification is effected by means of electronic communication, the electronic document shall be deemed to be delivered to the addressee on the tenth day following its transmission, unless it has failed to reach its destination or has reached its destination at a later date; in the event of any dispute, it shall be incumbent on the European Patent Office to establish that the electronic document has reached its destination or to establish the date on which it reached its destination, as the case may be.
Rule 131(2) EPC as in force until and on 31/10/2023:
(2) Computation shall start
on the day following the day on which the relevant event occurred, the event
being either a procedural step or the expiry of another period. Where the procedural step
is a notification, the relevant event shall be the receipt of the document
notified, unless otherwise provided.
- Candidates sitting the EQE 2024 (pre-exam and main examination) can use as legal basis Rules 126, 127 and 131 EPC as in force on 31 October 2023 or Rules 126, 127 and 131 EPC as in force on 1 November 2023.
- In the main exam papers, the default Rules 126, 127 and 131 EPC to be applied are those in force on 1 November 2023. If the candidate chooses to apply Rules 126, 127 and 131 EPC as in force on 31 October 2023, this must be clearly indicated.
- Candidate papers will be marked accordingly.
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