1.1. Calculation of time limits under Rule 131 EPC

By decision dated 13 October 2022, the Administrative Council of the EPO amended R. 126(2) EPC, R. 127(2) EPC and R. 131(2) EPC (OJ 2022, A101). These provisions as amended apply to documents notified by the EPO on or after 1 November 2023.

Amended R. 126(2) and 127(2) EPC introduce a new notification fiction, according to which postal and electronic notification are deemed to occur on the date of the document. As a result, the notification fiction according to which the deemed notification of a document occurred ten days after it was issued ("ten-day rule") was abandoned from 1 November 2023. See notice from the EPO of 25 November 2022 concerning legal changes to support digital transformation in the patent grant procedure (OJ 2022, A114) and notice from the EPO of 6 March 2023 concerning amended Rule 126, 127 and 131 EPC (OJ 2023, A29).

Amended R. 131(2) EPC provides that, in case of notification, it is the deemed receipt of the document notified which will constitute the relevant event for the purposes of time limit calculation. As a result, periods will be triggered by deemed notification under revised R. 126(2) EPC and R. 127(2) EPC. The decisions below were issued before said amendments took effect.

In J 14/86 (OJ 1988, 85) the Legal Board held that the fact that R. 83(2) EPC 1973 (R. 131(2) EPC) fixed the point in time from which all the time limits ran and defined this point as the day following that on which the event giving rise to the time limit occurred, could not be interpreted as requiring the addition of a day to time limits expressed in years, months and weeks, hence the grant of an additional day for reasons of equity. The expiry date of time limits expressed in years, months or weeks was derived from R. 83(3) to (5) EPC 1973 (R. 131(3) to (5) EPC). These paragraphs, in conjunction with paragraph 2 of the same rule, established unequivocally that the time limits were fixed in full years, months, and weeks, without any possibility of their being reduced or extended (see also J 9/82, OJ 1983, 57).

In J 13/88 the Legal Board demonstrated how to calculate the 12-month priority period referred to in Art. 87 EPC. The event representing the point in time from which a time limit started to run was the filing date of the application in respect of which priority was claimed, which was 5 May 1986. The period expired in the relevant subsequent month on the day which had the same number as the day on which the said event occurred, which was 5 May 1987 (R. 131(2) and (4) EPC).

T 2056/08 concerned the calculation of the period for filing an appeal when combined with the former ten-day rule for notification by postal delivery. The board noted that the two-month period stipulated in Art. 108 EPC started from the day of the presumed or actual notification. If any rule of thumb could be suggested to calculate the appeal period, it should have been "ten days plus two months" rather than "two months plus ten days".

R 18/10 concerned the calculation of the two-month time limit under Art. 112a(4) EPC. The relevant decision had been posted on 31 August 2010 and the actual notification occurred on 6 September 2010. According to R. 131(2) EPC, where a procedural step is a notification, the relevant event shall be the receipt of the document notified, unless otherwise provided. According to R. 126(2) EPC, in cases where notification is effected by registered letter such a letter is deemed to be delivered to the addressee on the tenth day following its posting. Therefore, regardless of the fact that actual notification occurred on 6 September 2010 the time limit ended pursuant to R. 126(2) EPC on 10 November 2010.

For events which trigger the start of a time limit in connection with re-establishment of rights, see below chapter III.E.4.1.1 "Two-month time limit from the removal of the cause of non-compliance"; for "notification" as an event which triggers the start of a time limit, see chapter III.S.; for the relevant event for calculating the time limit under Art. 78(2) EPC 1973 (R. 38 EPC), see J 13/04.