EPO’s ten day postal rule abolished

2 October 2023

For applicants of European patent applications, the “ten day postal rule” has sometimes been a lifeline relied upon to meet deadlines. From 1 November 2023, this rule will be removed from the EPO’s Implementing Regulations. This means that we will not be able to make use of the previously available grace period offered by the 10-day rule for filing responses beyond the specified deadline.

Why the change?

The removal of this rule is in part due to the increased use of  digital communication. The rule was introduced by the EPO when physical letters were the normal method of communication, and intended to allow for postal delivery delays and variations in postal services geographically. Any communication issued by the EPO was deemed notified to the recipient ten days later than the issue date, and any deadlines set by the notification date were then calculated from the issue date + 10 days.

However, 99% of Communications from the EPO is now sent electronically, using their electronic Mailbox, and postal delays have a negligible effect on delivery times to the recipient. The removal of this rule also eliminates the potential for uncertainty it created, as not all deadlines were calculated from the issue date of a Communication. Thus, with this change, the EPO aligns with most other patent offices in their policy of calculation deadlines.

When will the change affect me?

Communications issued by the EPO on or after 1 November 2023 will be deemed notified on the day on which they are issued by the EPO. Subsequently, the date printed on any electronic communication will be the date it is presumed to have been received, and any deadlines calculated from a notification date will then be calculated from the actual issue date of the communication.

Common deadlines set by EPO Communications are two or four months, so any impact of the rule change will not be felt until early 2024. However, it is obviously important to note the removal of a previously available option when observing response deadlines. Both applicants and practitioners representing applicants with European patent applications are advised to provide instructions earlier to ensure they are carried out in a timely manner.

Other options for extending deadlines

Depending on the particular type of response, some deadlines may be extended up to a total of six months upon request. Furthermore, for a number of missed deadlines, “further processing” may be available, entailing a fee and remedying the missed prosecution step. However, these options are not available for all types of responses or deadlines, so we urge applicants to keep in close contact with your EP representative.

Please reach out to your Zacco contact if you have any questions.