The European Patent Office Votes to Modernize the ‘10-Day Rule’

On Oct. 13, 2022, the Administrative Council of the European Patent Office (EPO) voted to change Rule 126(2) of the EPC (the “10-day rule”). This change comes as part of the annual revision cycle for the EPC and PCT-EPO guidelines. While the revised rule was preliminarily approved in May 2022, the package of rule changes was officially passed during the second meeting of the Standing Advisory Committee before the EPO.

The 10-day rule was originally enacted in 1973 to account for unknown delays in physical mailing of EPO correspondence to patent applicants. Under the rule, communications from the EPO are deemed received by an applicant 10 days from the mailing date of such communications, effectively extending deadlines triggered and/or imposed by the correspondence by 10 days.

The EPO voted to amend the 10-day rule as part of its effort “to adapt the rules of the EPC to the digital age.” New Rule 126(2) will deem the delivery of notifications and correspondence from the EPO as the date such notifications or correspondence was sent—consistent with current PCT and USPTO practice.

Implementation details on any transitional period(s) are not available as of this writing. However, applicants and practitioners alike representing applicants with EP applications and EP grants are well-advised to be aware of this change, especially considering practice changes resulting from, and necessitated by, the upcoming launch of the Unified Patent Court.

The New Rule 126(2) will be effective as of Nov. 1, 2023.

This document is intended to provide you with general information regarding changes to the EPO's Rule 126(2). The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.