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FAQ - Disruptions due to the COVID-19 pandemic: remedies in case of non-observance of periods

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General

Euro-direct and Euro-PCT applications

International applications under the PCT

Further information

Antworten

General


Are there any extensions of periods at the EPO in view of the disruptions to public life caused by the COVID-19 pandemic?

Yes. The EPO has taken measures to safeguard users’ rights: Periods expiring on or after 15 March 2020 are extended for all parties and their representatives to 2 June 2020, this being the first day following the end of the interval of dislocation within the meaning of Rule 134(2) EPC. This extension of periods applies to Euro-direct and Euro-PCT applications as well as to international applications under the PCT.

Please see the Notice from the European Patent Office dated 1 May 2020 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 the Patent Cooperation Treaty (PCT) in cases of non-observance of periods.


Euro-direct and Euro-PCT applications


Which periods are covered by Rule 134 EPC as regards Euro-direct and Euro-PCT applications?

The extension of periods under Rule 134 EPC covers both periods stipulated in the EPC (for example the opposition period under Article 99(1) EPC or the twelve-month period for claiming priority pursuant to Article 87(1) EPC) and periods set by the EPO (i.e. under Rule 132 EPC).

It does not, however, apply to procedural acts which must be performed under specific conditions (for example the filing of a divisional application under Article 76 EPC in conjunction with Rule 36 EPC).

Neither does it apply to procedural acts which must be performed by a specific point in time (for example the final date for making written submissions in preparation for oral proceedings under Rule 116 EPC or the date for giving notice to the EPO of the use of an official language other than the language of proceedings in oral proceedings under Rule 4(1) EPC). However, the divisions will take account of a general dislocation in the delivery of mail or other exceptional occurrence in terms of Rule 134 EPC when exercising their discretion on whether to admit submissions filed after the date set under Rule 116 EPC (see Guidelines for Examination, E-III, 8.5, sub-item (iv)). Insofar, a party may equally rely on such an excuse where this has been announced in line with Rule 134(4) EPC. However, given that the date fixed under Rule 116 EPC is meant to ensure that the division (and other parties in opposition proceedings) has enough time to prepare, a party making submissions after that date must show that it has made reasonable efforts to make the submissions as early as reasonably possible. Similar considerations apply with regard to the date under Rule 4(1) EPC.


Does the extension of periods under Rule 134(2) EPC also apply to periods for paying fees, including renewal fees, for Euro-direct and Euro-PCT applications?

Yes. Periods for paying fees expiring on or after 15 March 2020 are extended for all parties and their representatives to 2 June 2020, this being the first day following the end of the interval of dislocation within the meaning of Rule 134(2) EPC (see the Notice from the European Patent Office dated 1 May 2020 concerning the disruptions due to the COVID-19 outbreak and the Notice from the European Patent Office dated 30 March 2020 concerning the extension of periods for the payment of fees).

The due date for renewal fees falling due on 31 March 2020, 30 April 2020 or 31 May 2020 is deferred to the 2 June 2020. Please note that the six-month additional period for paying a renewal fee with additional fee (see Rule 51(2) EPC) begins on the last day of the month referred to in Rule 51(1) EPC, even if the circumstances described in Rule 134(2) or (5) EPC apply. However, Rule 134 EPC is applicable to the calculation of the expiry of the six-month additional period (see decision J 4/91 and point 5 of the Notice from the European Patent Office dated 30 March 2020 concerning the extension of periods for the payment of fees).

For the fee amounts applicable following the general fee adjustment with effect from 1 April 2020, see point 7 of this Notice.


If I am not covered by the extension of periods under Rule 134(2) EPC, is there another legal remedy I can rely on for my Euro-direct/Euro-PCT application?

Yes. Without prejudice to Rule 134(2) EPC and in respect of cases not covered by it (i.e. where periods have expired before 15 March 2020), Rule 134(5) EPC offers a safeguard in the case of non-observance of a period 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 their place of business.

This provision applies to cases where the failure to observe a period is the result of exceptional circumstances beyond the applicant's control. It may therefore be invoked by any applicant or party to the proceedings or their representatives who are affected by the disruption in the areas affected by the pandemic.

Please note that when Rule134(5) EPC is invoked, a formal request needs to be filed with the EPO (in contrast to the extension of periods under Rule 134(2) EPC), stating that the COVID-19 pandemic affected the locality where the applicant or party or their representative resides or has their place of business. For the time being and under the present circumstances (see point 3 and footnote 3 of the Notice from the European Patent Office dated 1 May 2020 concerning the disruptions due to the COVID-19 outbreak as to the areas affected), the EPO will not require evidence to be provided that coronavirus affected that locality.


International applications under the PCT


Is the extension of periods under Rule 134(2) EPC also available for international applications under the PCT which are the subject of proceedings before the European Patent Office?

Yes. The extension of periods also applies to international applications under the PCT which are the subject of proceedings before the European Patent Office. Any such period expiring on or after 15 March 2020 is extended for all parties and their representatives to 2 June 2020, this being the first day following the end of the interval of dislocation within the meaning of Rule 134(2) EPC (see the Notice from the European Patent Office dated 1 May 2020 concerning the disruptions due to the COVID-19 outbreak).


Which periods are extended as regards international applications?

The extension applies to all periods fixed in the PCT for performing an action before the European Patent Office. This does not include the priority period, which is fixed in the Paris Convention. As a consequence, the priority period is excluded from a general extension of periods. However, PCT applicants may file a request for restoration of the priority right under Rule 26bis.3 PCT. Without prejudice to a request for restoration of the priority right, the period for claiming priority can only be extended under Rules 80.5 and 2.4(b) PCT if the last day of the priority year falls on a non-working day, an official holiday or a day on which the EPO is not open to the public or ordinary mail is not delivered.


Does the extension of periods also apply to periods for paying fees in the international phase?

Yes. Periods for paying fees in the international phase expiring on or after 15 March 2020 are extended for all parties and their representatives to 2 June 2020, this being the first day following the end of the interval of dislocation within the meaning of Rule 134(2) EPC (see the Notice from the European Patent Office dated 1 May 2020 concerning the disruptions due to the COVID-19 outbreak and the Notice from the European Patent Office dated 30 March 2020 concerning the extension of periods for the payment of fees for further explanations with respect to the payment of fees).


What if I am not covered by the extension of periods under Rule 134(2) EPC as regards international applications?

Without prejudice to Rule 134(2) EPC and in respect of cases not covered by it, reference is made to Rule 82quater.1 PCT as regards time limits and conditions applicable under the PCT.

In particular, where a time limit under the PCT is not met due to natural calamity or other like reason in the locality where the interested party resides, has their place of business or is staying, and the relevant action is 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. For the time being and under the present circumstances, where a request under Rule 82quater.1 PCT is made citing COVID-19 related issues, the EPO will not require evidence to be provided that coronavirus affected the locality in which the interested party resides (please see point 3 and footnote 3 of the Notice from the European Patent Office dated 1 May 2020 concerning the disruptions due to the COVID-19 outbreak as to the areas affected).


Further information


Will there be a further extension of periods under Rule 134(2) EPC beyond the current one?

Periods expiring on or after 15 March 2020 are extended for all parties and their representatives to 2 June 2020 under Rule 134(2) EPC. The above period may be further extended by the publication of another notice from the EPO if the dislocation extends beyond the aforementioned date. Please note that the availability of the legal remedy provided for in Rule 134(5) EPC is without prejudice to Rule 134(2) EPC (as explained above).


Where can I find the latest information from the EPO on issues related to the COVID-19 pandemic?

For the latest information see continually updated page.

Where can I find additional information as regards international applications under the PCT?

Further information with regard to safety nets available under the PCT and measures taken by the International Bureau of WIPO is available under:


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