New R.126(2) EPC and the 7-day rule
Most people are happy that we don't have to use the 10-day rule anymore. However, do you know how the new R.126(2) EPC works? Is the 7-day rule easier to deal with?
You might have heard that the new R.126(2) is similar to the time limit calculation in PCT. But this information only helps if you know how time limit calculation works in PCT. :)
So, let's do a quick refresher with examples.
A few important things first:
Date of notification in both PCT and EPC is the date on the communication.
Late receipt does not change the date of notification.
However, the end of a period computed from a date of notification may be postponed if you rely on postal mail.
And now, let’s see some examples, it is always easier to learn that way.
PCT
Example:
Date of communication (setting a 1-month time limit): 1 March 2024
Communication received: 13 March
–> 12 days, so 5 days more than 7 days
Time limit:
OPTION 1
If you don't do anything: 1 March 2024 + 1 m (R.80.2 PCT) –> 1 Apr 2024 Mon, Easter, so R.80.5 applies –> 2 April 2024, Tuesday
OPTION 2
If you initiate dispute and prove (including providing satisfactory evidence) that you only received the communication on 13 March:
1 March 2024 + 1 m (R.80.2 PCT) –> 1 Apr 2024 + 5 days (R.80.6 EPC) –> 6 Apr 2024 Saturday, so R.80.5 applies –> 8 April 2024, Monday is the last day to respond
What to use first, R.80.5 or R.80.6 PCT?
R.80.6 PCT. So, first add the additional days (number of days by which these seven days are exceeded), and as the final step check the last day in the calendar.
EPC
New R.126(2) EPC: "the document shall be deemed to be delivered to the addressee on the date it bears"
Example:
Date of communication (setting a 4-month time limit): 1 Dec 2023
Communication received: 13 December
–> 12 days, so 5 days more than the 7 days
Time limit:
OPTION 1
If you don't do anything: 1 Dec 2023 + 4 m (R.131(4) EPC) –> 1 Apr 2024 Mon, Easter, so R.134(1) applies –> 2 April 2024 Tue
OPTION 2
If you initiate dispute and inform the EPO that you only received the communication on 13 Dec:
1 Dec 2023 + 4 m (R.131(4) EPC) –> 1 Apr 2024 + 5 days (R.126(2) EPC) –> 6 Apr 2024 Saturday, so R.134(1) applies –> 8 April 2024 Monday is the last day to respond
Legal basis: "...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. So, applying the safeguard, if an addressee received a document 12 days after the date it bears, the period will be extended by five days. By contrast, if the EPO's investigation shows that a document was received, for instance, four days after the date it bears, there will be no change in the period calculation." OJ EPO 2023, A29
What to use first, R.126(2) or R.134(1) EPC?
R.126(2) EPC. So, first add the additional days (number of days by which these seven days are exceeded), and as the final step check the last day in the calendar.
Legal basis: "The general principles governing time-limit extensions set out in Rule 134 EPC will apply to periods recalculated applying the new safeguard." (OJ EPO 2023, A29)
Summary
The 2 most important things to remember:
1. The additional days are added only after adding the period (e.g. 1 month, 2 months, 4 months, 6 months…).
2. Any automatic extension due to weekends or holidays should only be used after adding the additional days, so using R.80.5 and R.134(1) is the FINAL step.
More information and visual illustration can also be found in OJ EPO 2023, A29, link: https://www.epo.org/en/legal/official-journal/2023/03/a29.html.