The EPO is changing the way that the deadline for responding to a communication, such as an examination report, is calculated. The EPO’s “10-day postal rule” will not apply to communications issued from 1 November 2023, meaning that applicants will have a shorter period for responding to such communications
Historically, the EPO mailed out hard copies of communications to applicants or their representatives. This inevitably caused delays in those communications being received, which would be disadvantageous to the Applicant, particularly when the communications set deadlines for response. To minimise the impact of postal delays, the EPO calculated the deadline for response by first adding 10 days to the date that the communication issued and then adding the period for response. For example, a communication having an issue date of 1 June 2023 and setting a four month period for response would have a response deadline of 11 October 2023.
However, in recent years the EPO has moved to sending over 99% of communications using electronic means. As such, these communications are received almost instantly and the EPO no longer considers that there is a need for the 10-day rule.
Communications that are issued by the EPO on, or after, 1 November 2023 will no longer have the 10-day rule applied when calculating the deadline for response. For example, a communication that issues on 1 November 2023 and that sets a four month deadline will have a deadline for response of 1 March 2024.
Communications that issue before 1 November 2023 will continue to have the 10-day rule applied when calculating the deadline. For example, a communication that issues on 31 October 2023 and that sets a four month deadline will have a deadline for response of 10 March 2024.
Applicants and their representatives should ensure that their deadline calculating and docketing processes are updated in light of this rule change.
Dehns will continue to calculate the correct deadline for responding to communications and will report these to clients in the usual manner.
As is currently the case, the burden of proof as to whether, or when, a communication has been received by the Applicant or their representative will continue to rest with the EPO. If the receipt of a communication is contested and the EPO cannot demonstrate that it has been delivered, then the EPO will continue the current procedure of reissuing the communication, thereby setting a new deadline for response.
However, a new procedure will be followed when communications issued after 1 November 2023 are received but are received exceptionally late. Under the new rules, if a communication is received exceptionally late and the date of receipt is contested, then the EPO will extend the deadline. More specifically, if the communication is received more than 7 days after it was issued, then the EPO will extend the deadline by the number of days beyond this that the communication was received. For example, if a communication is received 12 days after the date it was issued on, then the period for response will be extended by 5 days. In contrast, if the communication is received 7 or fewer days after the date that it was issued then the deadline will not be extended.