What has been amended?
The amendments concern, inter alia, Rules 126(2), 127(2) and 131(2) EPC, which deal with service by postal services and by electronic means as well as the calculation of time limits triggered by the service of a document. (https://www.epo.org/en/legal/official-journal/2023/03/a29.html)
What is the essence of the amendments?
The new Rules 126(2), 127(2) and 131(2) EPC will enter into force on 1 November 2023 and introduce a new notification fiction, according to which postal and electronic notification are deemed to occur on the date of the document.
Elimination of the previous 10-day rule
These amendments eliminate the previous notification fiction of 10 days provided in Rule 126(2) EPC and Rule 127(2) EPC, according to which a document is deemed to be delivered on the tenth day after the date of the document, which is taken into account in the calculation of official time limits triggered by the delivery of communications from the EPO.
What are the reasons behind the amendments?
The EPO communicates that the changed notification fiction will result in a simplification for applicants, since it brings the EPC and PCT regimes more closely into line with each other. Thus, the revised provisions reflect the principle of instantaneous notification in the digital world.
Is there a safeguard in case of irregularities?
If a document could not be delivered, the EPO has the burden of proof. As is the case today, if the EPO is unable to prove that a document has been delivered, the notification fiction will not apply, and a period linked to that document will not be considered to have started. The document in question will then be reissued with a new date, which will then serve as the basis for applying the notification fiction.
On the other hand, where a document has been delivered exceptionally late, the new safeguard introduced in the last sentence of amended Rules 126(2) and 127(2) EPC will apply. More specifically, if notification is contested and the EPO cannot show that a document reached the addressee within seven days of the date it bears, a period triggered by the deemed receipt of that document will be extended by the number of days by which these seven days are exceeded (see also example 3, below).
What are the practical effects of the amendments?
In simplified terms, it can be said that these changes have generally shortened the time limits by 10 days. The elimination of the 10-day rule is not significant in practice for (extendable) 4-month periods. However, 10 days less in the case of the shorter and, above all, non-extendable time limits is much more significant. Examples of tight time limits would be in particular the 1-month time limit under Rule 137(4) EPC (“basis for amendments” – Article 123(2) EPC) and the 2-month time limit under Rule 63(1) EPC (“incomplete search”).
Some examples from the EPO are shown below to better illustrate the new Rules 126(2), 127(2) and 131(2) EPC.
The new Rules 126(2), 127(2) and 131(2) EPC will apply on 1 November 2023 as the effective date. The following example illustrates a case in which the document (examination report) is dated before this date, more precisely 28 October 2023. In this case, the procedure according to the previous 10-day rule applies.
The second example illustrates the new procedure under Rules 126(2), 127(2) and 131(2) EPC, since the document (examination report) is dated after 1 November 2023, more precisely 13 November 2023. The time limit therefore expires on 13 March 2024.
The third example illustrates the safeguard introduced under the last sentence of amended Rules 126(2) and 127(2) EPC. If a recipient receives the examination report (dated 13 November 2023) twelve days later, i.e. on 25 November 2023, the time limit is extended by five days (time limit extended by the number of days by which the seven days are exceeded; 12 – 7 = 5 days). The deadline therefore expires on 18 March 2024.
Conclusion and outlook
The new Rules 126(2), 127(2) and 131(2) EPC are intended to bring the EPO’s calculation of time limits more into line with modern practice of instantaneous notification and thus also more closely into line with the PCT. In the case of the (extendable) 4-month time limits, such as the examination report, the removal of the 10 days will not have any significant impact or consequences, whereas the already shorter time limits, such as the 1-month time limit to submit “basis for amendments”, will become even tighter (with an approximate 33% reduction in the time limit). It remains to be seen how the amendments to new Rules 126(2), 127(2) and 131(2) EPC affect practice and whether the EPO will need to make further adjustments, particularly with regard to the short time limits. This will require evaluation based on practical case studies.