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1. The European Patent Office is closely
monitoring the developments of the COVID-19 outbreak. Accordingly, it
published two Notices dated 1 May 2020[ 1 ] and 27 May 2020[ 2 ]
concerning the disruptions due to the COVID-19 outbreak and drawing
attention to the legal remedies provided for under the European Patent
Convention (EPC) and under the Patent Cooperation Treaty (PCT) in cases
of non-observance of time limits. In particular, under Rule 134(2) EPC it
provided for an extension of periods expiring on or after 15 March 2020
for all parties and their representatives to 2 June 2020, and referred
to the application of Rule 134(5) EPC and Rule 82quater.1 PCT.
Due to the latest increasing disruptions caused by the COVID-19 outbreak, attention is drawn anew to the legal remedies provided for under the European Patent Convention (EPC) and under the Patent Cooperation Treaty (PCT) in case of non-observance of time limits and, in particular, to the application of Rule 134(5) EPC and Rule 82quater.1 PCT.
2. Rule 134(5) EPC offers a safeguard in the case of non-observance of a time limit as a result of a dislocation in the delivery or transmission of mail caused by an exceptional occurrence affecting the locality where an applicant, a party or their representative resides or has his place of business. This provision applies to cases where the failure to observe time limits is the result of exceptional circumstances beyond the applicant's control and may therefore be invoked by any applicants, parties to proceedings or their representatives affected by the disruption in the areas affected by the outbreak.[ 3 ]
3. Pursuant to Rule 134(5) EPC, any document received late will be deemed to have been received in due time if the person concerned offers evidence that on any of the ten days preceding the day of expiry of a period, it was not possible to observe the time limit due to this exceptional occurrence and that the mailing or the transmission was effected at the latest on the fifth day after the end of the disruption.[ 4 ]
4. As for time limits and conditions applicable under the PCT, applicants are referred to Rule 82quater.1 PCT. In particular, where the interested party offers satisfactory evidence that a time limit under the PCT was not met due to natural calamity or other like reason in the locality where the interested party resides, has his place of business or is staying, and that the relevant action was taken as soon as reasonably possible (and no later than six months after expiry of the time limit in question), the delay in meeting the time limit is excused. This provision applies to international applications pending in the international phase, but not to the priority period.[ 5 ], [ 6 ]
5. The European Patent Office continues to monitor the developments of the COVID-19 outbreak and to inform applicants and their representatives accordingly, in particular of any possible general dislocation in the Federal Republic of Germany within the meaning of Rule 134(2) EPC.
[ 1 ] Notice from the European Patent Office dated 1 May 2020 concerning the disruptions due to the COVID-19 outbreak, OJ EPO 2020, A60.
[ 2 ] Notice from the European Patent Office dated 27 May 2020 concerning the disruptions due to the COVID-19 outbreak, OJ EPO 2020, A74.
[ 3 ] Please note that the definition of areas affected by the spread of COVID-19 may be subject to change. Please refer to the EPO website for regular updates.
[ 4 ] For more information as to the practical application of this rule, reference is made to the FAQ - Disruptions due to the COVID-19 pandemic: remedies in case of non-observance of periods on the EPO website.
[ 5 ] Reference is also made to the WIPO International Bureau's "Interpretative statement and Recommended Patent Cooperation Treaty (PCT) Practice Changes in light of the COVID-19 Pandemic", dated 9 April 2020.
[ 6 ] For more information as to the practical application of this rule, reference is made to the FAQ - Disruptions due to the COVID-19 pandemic: remedies in case of non-observance of periods on the EPO website.