Under the former 10-day rule, a document was deemed to have been delivered on the tenth day after the date it bore, and time limits were calculated from that fictitious delivery date. That fiction has been removed. A document is now deemed to have been delivered on the date it bears, and any period triggered by the notification starts from that date.
The seven-day safeguard
A safeguard clause protects recipients against postal delays. If a document actually reaches the addressee more than seven days after the date it bears, the relevant period is extended by the number of days exceeding those seven. In the event of a dispute, the burden of proof lies with the EPO: it must establish that the document reached the addressee and on which date. In practice, therefore, the date on the communication is decisive in the vast majority of cases, and the safeguard becomes relevant only where delivery was genuinely late or did not occur.
Example. A communication under Rule 71(3) EPC dated November 15 sets a four-month period. That period now starts on November 15 (the date of the document), not ten days later. Only if the communication reached the representative after November 22 – that is, more than seven days after its date – would the period be extended accordingly.
Practical implications
For day-to-day docketing, periods should be calculated from the date the document bears. The previous ten-day buffer no longer exists, so diary systems and reminders should be adjusted accordingly. Where a communication arrives noticeably late, the envelope or electronic delivery record should be retained, since the seven-day safeguard can preserve a period that would otherwise appear to have started earlier. Rule 134(1) EPC continues to apply where the EPO filing offices are not open or where there is a general dislocation in the delivery of mail.
The reform aligns EPO practice more closely with the Patent Cooperation Treaty, under which time limits likewise run from the date of the communication, and removes a long-standing point of divergence between the two systems.
