The ten day rule is living its last months

Yesterday, the Administrative Council of the EPOrg passed a package of rule changes requested by the EPO “to adapt the rules of the EPC to the digital age”. Included in this package was a change to Rule 126(2) EPC relating to the date on which a document sent by the EPO is deemed to be delivered. This used to be 10 days from the date on the document. This has been changed so that the date on which the document is deemed to be delivered is the date on the document, with some safety nets copied from the PCT.

Amended Rule 126(2) shall read as follows:

(2) Where notification is effected in accordance with paragraph 1, the document shall be deemed to be delivered to the addressee on the date it bears, unless it has failed to reach the addressee. In the event of any dispute concerning the delivery of the document, it shall be incumbent on the European Patent Office to establish that the document has reached its destination and to establish the date on which the document was delivered to the addressee. If the European Patent Office establishes that the document was delivered to the addressee more than seven days after the date it bears, a period for which the deemed receipt of that document is the relevant event under Rule 131, paragraph 2, shall expire later by the number of days by which the seven days were exceeded.

There are therefore safeguards in the rule for the case where a document sent by registered post is not delivered within 7 days or not delivered at all. If a recipient indicates that a document was not delivered on time, it will be up to the EPO to prove when it was delivered.

The new rule does NOT come into force immediately. It will only come into force on 1st November 2023 . This gives all concerned just over a year to adapt their processes and update their computer systems to be in conformity with the amended rule. The EPO promised to institute a publicity campaign to assist in dealing with this rule change.