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Amendment to Rule 126(2) EPC

Recently, the Administrative Council of the EPOrg made a significant amendment to Rule 126(2) EPC, which establishes a period of 10 additional days to the legal deadline for responding to some communications issued by the EPO. The 10 days sought to prevent delays in the delivery of the communications by mail to the Applicant of a European Patent, since these communications issued by EPO were considered delivered to the Applicant 10 days after the date they were issued (i.e., data presente in the communication), regardless of being sent in physical or digital format.

This amendment arises from adapting the rules of the EPC to the digital era, prompting the Applicants to adhere to this format in the reception of communications.

It is important to note that the lack of knowledge of this alteration may not be considered a reason o re-establish the rights lost due to non-compliance with deadlines that won’t benefit from the additional 10 days, which in many cases benefited the most inattentive Applicants.

However, there will be a safe mechanism that will make it possible to cover delays or non-delivery of communications. In these cases, it will be up to the EPO itself to establish if the communication was recieved at all or if it was received with a delay of more than 7 days, in order to extend the legal response time by the number of days equivalent to the delay that occurred after 7 days.

This amendment will come into force on November 1, 2023, from that moment the communications issued by the EPO will be considered delived on the date that appears in the communication and response deadlines will be counted only from that same date.

List of communications impacted by the amendment:

– Communication to correct formal deficiencies;

– Communication under Rule 161/162 EPC;

– Office Actions under Rule 94(3) EPC;

– Communication for the payment of fees on additional claims in case of lack of unity of invention;

– Time periods related to the Appeal procedure;

– Other time periods calcuated from communications issued by EPO.

Cláudia Couto