Further Clarity about the End of the ‘Ten Day Rule’

The EPO has issued a notice providing more information relating to the abolition of the so-called ‘ten day rule’.

As already reported here, the Administrative Council decided in October last year to abolish the ‘ten day rule’. To recap, under the current rules, documents sent by the EPO are deemed to be delivered ten days after the date printed on the document. This is commonly referred to as the ‘ten day rule’. The effect of this is generally to set an approximate 10 day grace period on deadlines set by reference to the date on the document, for example on the four month term for responding to an EPO office action.

From 1 November 2023, documents sent by the EPO will be deemed to be delivered on the date of the document. Therefore, the ‘ten day rule’ will no longer apply and there will be no 10 day grace period on the response deadlines.

Importantly, the date of the document determines whether the new provisions apply. If the document is dated before 1 November 2023, the current provisions (and thus the ‘ten day rule’) applies. If the document is dated on or after 1 November 2023, the new provisions apply (and the ‘ten day rule’ does not apply).

There are already safeguards in place if a document is not correctly delivered to the addressee. For example, if, following the request of an investigation by the addressee, the EPO is not able to prove that a document has been delivered, the document will be reissued with a new date and any response period will be calculated from the new date. The EPO is also introducing a new safeguard which would allow a deadline extension in the event that a document is delivered over seven days later than the date on the document. However, the EPO envisages this safeguard to be used rarely, especially when receiving documents electronically.

Since the new provisions come into force on 1 November 2023, applicants and representatives have around six months to implement any necessary changes to their systems and working practices.