The ‘Ten Day Rule’ is Close to Expiry

The end of the ‘ten day rule’ is now nearly upon us. From 1 November 2023, the ‘ten day rule’ will no longer apply and documents from the EPO will be considered notified on the date they bear on their front cover.

To recap, since the start of the EPC in 1977 a document sent by the EPO has been deemed to be delivered ten days after the date printed on the document. This has commonly been referred to as the ‘ten day rule’. The effect of this is generally to set an approximate ten day grace period on any deadline 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, a document 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 ten day grace period on any response deadlines.

Importantly, it is the date of the document itself which determines whether or not the ‘ten day rule’ still applies. If the document is dated before 1 November 2023, the ‘ten day rule’ still applies. If the document is dated on or after 1 November 2023, the ‘ten day rule’ does not apply. One odd effect of this is that a document sent on 27 October 2023 setting a four-month term for response will have a deadline for responding of 6 March 2024, whereas a document sent five days later on 1 November 2023 also setting a four-month term for response will have a deadline for responding of 1 March 2024. The later-issued office action will have an earlier response date, despite ostensibly having the same response term of four months.

The EPO says it is abolishing the ‘ten day rule’ because a postal notification period does not sit well in the age of digital communication. Regular EPO applicants are likely to sorely miss this provision, which often gives crucial extra time to timely meet a deadline.

If you have any queries relating to end of the ‘ten day rule’, please feel free to contact your usual J A Kemp advisor.