European Patent Office Drops “10-Day Rule” for Delivery of Official Communications

January 27, 2023

In a sign of the times, the European Patent Office (EPO) is abolishing a provision pertaining to official communications delivered by post, as reported by the Chartered Institute of Patent Attorneys (CIPA).

Under Rule 126(2) of the European Patent Convention:

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….

Originally intended to accommodate delays in postal deliveries, the increasing – in fact, dominant – use of electronic communications had made the rule largely unnecessary. On May 12, 2022, the EPO Committee on Patent Law approved the modification, which the EPO’s Administrative Council ratified on October 13, 2022, within a set of changes designed to “adapt the rules of the EPC to the digital age.” Consequently, when the alteration takes effect on November 1, 2023, notification will be deemed to occur on the day the EPO sends the document, either electronically or by post.

Abolishing the ten-day rule reflects the EPO’s willingness to modernize patent grant procedures and embrace paperless digital communications. The rule change also makes the EPO provision consistent with the Patent Cooperation Treaty, meaning that the date of communication – also the date of notification – will decide matters involving expirations of applicable deadlines.

According to CIPA, there will be a safeguard for matters in which a document is not delivered on the same day. Should a recipient claim a document was not delivered timely, the burden will be on the EPO to establish it was, in fact, delivered on time. Although the rule change will simplify calculations of EPO deadlines, it will also reduce the time applicants have to respond to notifications.

We will continue to monitor developments regarding the rule modification, but if you have any questions about its impact on European patent grant procedures or any other aspect of European patent law, please contact us.