Monday, July 03, 2023 Pre-Exam 2024: deemed notification: you can use to use the current "10-day rule" or the new version of Rule 126(2)/127(2)

The Supervisory Board of the EQE issued a decision on "Notification and time limit calculation" dated 26 June 2023:

"Candidates sitting the EQE 2024 (pre-examination and main examination) can use as legal basis Rules 126, 127 and 131 EPC as in force on 31 October 2023 or Rules 126, 127 and 131 EPC as in force on 1 November 2023."

So, when calculating time limits that run from the (fictitious) date of notification of a document, you are free to use:

• either the current "10-day rule" for deemed notification (or true date of receipt if received later) according to current Rule 126(2)/127(2) (as in force until 31/10/2023) 
  
  
• or the new PCT-like version (as in force from 1/11/2023) with deemed notification on date of dispatch/date of the document and a compensation for receipt later than 7 days (OJ 2022, A101, article 1(10)-(12); OJ 2022, A114, section IV; and OJ 2023, A29; also Guidelines E-II, 2.3 and 2.4).

This implies that the correct (True or False) answer will not depend on the version of the Rule used when the Pre-Exam answers.

Our Q&A book "Basic Legal Questions for Pre-Exam and Paper D" gives time limit calculations for both versions of R.126(2)/127(2) for all questions involving time limits calculated from he notification of a document.

Current Rule 126(2) EPC - as in force until and in 31/10/2023:

Where notification is effected in accordance with paragraph 1, the letter shall be deemed to be delivered to the addressee on the tenth day following its handover to the postal service provider, unless it has failed to reach the addressee or has reached him at a later date; in the event of any dispute, it shall be incumbent on the European Patent Office to establish that the letter has reached its destination or to establish the date on which the letter was delivered to the addressee, as the case may be.

Current Rule 127(2) EPC - as in force until and in 31/10/2023:

Where notification is effected by means of electronic communication, the electronic document shall be deemed to be delivered to the addressee on the tenth day following its transmission, unless it has failed to reach its destination or has reached its destination at a later date; in the event of any dispute, it shall be incumbent on the European Patent Office to establish that the electronic document has reached its destination or to establish the date on which it reached its destination, as the case may be. 

Current Rule 131(2) EPC - as in force until and in 31/10/2023:

Computation shall start on the day following the day on which the relevant event occurred, the event being either a procedural step or the expiry of another period. Where the procedural step is a notification, the relevant event shall be the receipt of the document notified, unless otherwise provided. 

Amended Rule 126(2) EPC - as in force as of 1/11/2023:

(2) Where notification is effected in accordance with paragraph 1, the document shall be deemed to be delivered to the addressee on the date it bears, unless it has failed to reach the addressee. In the event of any dispute concerning the delivery of the document, it shall be incumbent on the European Patent Office to establish that the document has reached its destination and to establish the date on which the document was delivered to the addressee. If the European Patent Office establishes that the document was delivered to the addressee more than seven days after the date it bears, a period for which the deemed receipt of that document is the relevant event under Rule 131, paragraph 2, shall expire later by the number of days by which the seven days were exceeded.

Amended Rule 127(2) EPC - as in force as of 1/11/2023:

(2) Where notification is effected by means of electronic communication, the electronic document shall be deemed to be delivered to the addressee on the date it bears, unless it has failed to reach its destination. In the event of any dispute concerning the delivery of the electronic document, it shall be incumbent on the European Patent Office to establish that the document has reached its destination and to establish the date on which it reached its destination. If the European Patent Office establishes that the electronic document has reached its destination more than seven days after the date it bears, a period for which the deemed receipt of that document is the relevant event under Rule 131, paragraph 2, shall expire later by the number of days by which the seven days were exceeded.

Amended Rule 131(2) EPC - as in force as of 1/11/2023:

(2) Computation shall start on the day following the day on which the relevant event occurred, the event being either a procedural step or the expiry of another period. Where the procedural step is a notification, the relevant event shall be the deemed receipt of the document notified, unless otherwise provided.

For comparison: PCT Rule 80.6 (under PCT, the applicant has the burden of proof of late receipt; whereas under the new EPC provisions, the EPO has the burden of proof in case of dispute):

Where a period starts on the day of the date of a document or letter emanating from a national Office or intergovernmental organization, any interested party may prove that the said document or letter was mailed on a day later than the date it bears, in which case the date of actual mailing shall, for the purposes of computing the period, be considered to be the date on which the period starts. Irrespective of the date on which such a document or letter was mailed, if the applicant offers to the national Office or intergovernmental organization evidence which satisfies the national Office or intergovernmental organization that the document or letter was received more than seven days after the date it bears, the national Office or intergovernmental organization shall treat the period starting from the date of the document or letter as expiring later by an additional number of days which is equal to the number of days which the document or letter was received later than seven days after the date it bears.