Goodbye to the "Ten Day Rule" at the EPO

The EPO's idiosyncratic "ten day rule" relevant to calculating notified deadlines is being abolished in November.

Many a European patent attorney has been thankful for the EPO's ten day rule after receipt of very late instructions to proceed with filing a response. This peculiarity of EPO practice has its origin in the days of postal snail mail when it took a period of several days for any official communication to reach its recipient. The so-called "notification date" was standardised in the EPC as being ten days after the date of the letter (unless it in fact arrived later). The time period for responding was then calculated from that tenth day.

In practice, many European patent attorneys worked to the deadline being calculated from the date of the letter, in part because this was simpler to explain to their clients. They would therefore request instructions from their clients in time to meet a date that was actually a few days earlier than the official deadline.

Over the last few years, the EPO has converted to communicating with its users almost entirely electronically. This means that communications are generally received on the date of the letter (and sometimes even before the date of the letter!) Although the EPC currently provides for electronic communications also being received ten days after their date, the original reason for the ten day rule no longer exists.

By abolishing the ten day rule, the calculation of EPO deadlines is simplified, and the danger of applicants assuming that the "extra ten days" applies to all EPO deadlines is eliminated. However, applicants will need to be aware that their representatives will no longer have the ten day "safety net" and will accordingly need to ensure that their instructions are sent in good time for the deadline to be met.

Communications dated 1 November 2023 or later will be deemed received on the date of the communication (and deadlines calculated accordingly).  There are mechanisms available for situations where this is not the case and there are genuine delays.  

Please do not hesitate to contact us if you need further information.