Since its inception, the European Patent Office (EPO) has effectively had an extra 10 days’ grace beyond the apparent deadline for submitting many common written responses, e.g. in reply to communications from the search and examination divisions. The grace period does not apply to other critical deadlines such as expiry of priority periods, paying exam fees and responding to summons to oral proceedings, and hence could lead to confusion/misunderstanding by those not practising regularly before the EPO. Where the rule does apply, it can provide welcome breathing room so long as the extra time is calculated properly from the beginning of the period rather than the end.

Historically, the justification for the so-called “postal rule” was to account for postal delays when all outgoing EPO communications were sent by mail from Munich, Berlin or The Hague. However, since almost all EPO users now receive correspondence electronically, the decision has been made to amend rules 126 and 127 EPC from “deemed to be delivered on the tenth day “ after handing over to the postal service/transmission by electronic means to being “delivered on the same day,” i.e. the date on the communication.

By way of transition, all communications issued before 1 November 2023 will continue to benefit from the current rules, where the bonus ten days may be available (check with your European patent expert before relying on it); those after 1 November will not.

There are still safeguards in case of irregularities. Firstly, an addressee can dispute whether a document was delivered and the onus is on the EPO to show that the document was delivered, e.g. to the mailbox or by postal tracking. Secondly, an addressee can argue that correspondence was received exceptionally late and request an extension for the number of days late it was received minus 7 (because, up to 7 days for delivery is considered reasonable). For example, if a communication was received 12 days after notification date, then one could obtain a 5-day extension. It is expected that such requests will be quite rare given that most communications are delivered electronically direct to the EPO’s user accessible mailbox platform.

It is noteworthy that communications frequently appear in the mailbox several days before the date indicated on them. This in effect provides a few extra days to process communications, because the response deadline is always calculated from the date stated on the communication, not an unspecified earlier date when it may have been deposited into the mailbox.

Please contact a member of our patent team if you require any further details.