From 1 November 2023, the European Patent Office (EPO) will discontinue the practice of allowing 10 days for notification of Communications. This means that the period allowed for response to many Communications will no longer include an additional 10 days.
Under the previous rules, the start date for calculating the deadline for filing a reply to a Communication setting a period for response (typically two, four or six months) was 10 days after the date indicated on the Communication itself. For example, the deadline for responding to a Communication pursuant to Article 94(3) EPC dated 9 June 2023, and setting a period of four months for reply, is 19 October 2023.
Under the new rules, the deadline for reply to such a Communication is calculated from the date given on the Communication itself. For example, the deadline for replying to a Communication pursuant to Article 94(3) EPC dated 1 November 2023, and setting a period of four months for reply, will be 1 March 2024.
This change takes effect for all Communications dated 1 November 2023 onwards. Thus, a Communication dated 31 October 2023 is deemed notified on 10 November 2023, and the additional 10 days is added to the period for reply. On the other hand, a Communication dated 1 November 2023 is deemed notified on 1 November 2023, and so the reply period does not include the additional 10 days.
As before, the EPO continues to bear the burden of proving that a Communication has been notified, and when, if the recipient claims not to have received the Communication on time. Furthermore, delayed notification of a Communication may lead to an extension of the deadline for reply. Specifically, if a Communication is delivered more than seven days late, the period for reply is extended by the number of days more than seven that the Communication was delivered. For example, if a Communication dated 1 November 2023 is actually delivered on 8 November 2023, the Communication is notified seven days late and the reply period is not extended. If that Communication were delivered on 13 November 2023, the Communication is notified 12 days late and the reply period is extended by five days.
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