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Intellectual Property Law

: IPKat

The EPC "Ten Day Rule" - how not to use it

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

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The IPKat thanks Darren Smyth for informing him of an unusual EPO Technical Board of Appeal decision. This decision relates to a very esoteric corner of the European Patent Convention, but one that all European patent attorneys have to be careful to get just right, because the consequences of failure can be catastrophic.

Guiding a patent application through the procedures laid down by the EPC can be a tricky business, and is very frequently dependent on performing certain things within specified timescales. Some of these deadlines are, if missed, more fatal than others. One fatal deadline is that for filing an appeal against a decision of the EPO. According to Article 108, this must be done within 2 months of notification of the decision.

All European patent attorneys know that there is a special 'grace period' of 10 days that, in most cases, applies to these deadlines (although they sometimes don't like to tell their clients this). This is available under Rule 126(2), which states that communications are deemed to be notified 10 days from posting. The specified period therefore runs from the end of this 10 days. Calculating the correct date on which something must be done by is, naturally, an essential feature of being able to pass paper D of the European qualifying examinations.

It may therefore surprise some of the IPKat's readers that the decision in question, T 2056/08, results from what appears to be a misunderstanding of the EPC by an applicant's European representative. The decision related to an application that was refused by the EPO, the examining division notifying the representative of this in a letter dated 21 July 2008. Applying the 10 day rule and the 2 month period under Article 108, the final date for filing a notice of appeal, and paying the appeal fee, was then Tuesday 30 September 2008 (because periods in months are calculated to the end of the month: Rule 131(4)). The representative, however, believed that this date was 1 October 2008 instead, which they obtained by adding 10 days on to 21 September 2008. This resulted in the EPO finding that the appeal was not filed in due time.

Surprisingly, the representative disagreed, arguing that the EPO had got it wrong. Unsurprisingly, the Board of Appeal decided that the EPO had got it right, and summed things up as follows:

"Although it has become customary to refer to the appeal period as "two months plus ten days", this case shows that this is an inexact formula. The ten days are not added on after the two months period, or are calculated arbitrarily from the date of the decision or from a date two months thereafter. Rather, the ten days specify a period after which delivery and therefore notification is presumed, and the two months period stipulated in Article 108 EPC starts from the day of the presumed (if delivery has taken place within the ten days period) or actual (if delivery has been effected after the ten days period) notification. Thus, if any rule of thumb could be suggested to calculate the appeal period, it should be "ten days plus two months" rather than, as was argued by the applicant, "two months plus ten days"." (reasons, point 4)

Rather than indulging in any schadenfreude, the IPKat merely notes that there are only two people having a residence or place of business in the country in question who have passed the EQEs, and the representative in this case is apparently not one of them. For more details, see the IPKat's previous post here.

Ten Days that Shook the World here and here

Full post as published by IPKat on April 27, 2009 (boomark / email).