Adaptations in the EPC (European Patent Convention) as of November 1, 2023

With the revised provisions 126(2) and 127(2) of the EPC comes a significant innovation in the service procedure. From November 1, 2023, the date of actual service of the document will be recognized as the date of service for both postal and electronic service. This marks a change from the previous “ten-day rule,” under which service was deemed to have been effected ten days after it was sent by mail or transmitted electronically.

The decisive factor for the date of a document is now the moment it is handed over to the postal service (in the case of postal service) or the moment it is electronically transmitted to the recipient’s inbox. The European Patent Office (EPO) ensures by post-dating that documents can be processed and issued on the date indicated. For postal deliveries, the date indicated on the document counts, not the date stamped on the envelope by the postal service. Therefore, in Rule 126(2) EPC, the term “letter” has been replaced by “document”.

Our office receives all communications from the EPO in electronic form. The date noted on the document remains authoritative. Even if we have access to it before that date, acceptance of service under Rule 127(2) EPC is based on the indicated date of the document.

Safeguards in case of service problems: The EPO continues to have safeguards in place in case documents do not reach the addressee or arrive unusually late, for both postal and electronic service. In case of disputes about service, the burden of proof is on the EPO, both as to the service of the document and the date of service. If the EPO cannot prove service, the document will be served again with a new date. In the case of exceptionally late service, there is an additional safeguard clause. If the EPO cannot prove that a document has reached the addressee within seven days of the date indicated, the period triggered by service is extended accordingly.

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