Legal framework
A communication under Article 94(3) EPC invites the applicant to file observations and, where appropriate, amendments. If the applicant fails to reply in due time, the European patent application is deemed withdrawn under Article 94(4) EPC.
Since the abolition of the old 10-day notification rule, Rule 126(2) EPC provides that a postal communication is deemed delivered on the date it bears, unless it fails to reach the addressee or is delivered more than seven days after that date. No late delivery is indicated in this question, so the relevant date is 26 February 2025.
Periods expressed in months are calculated under Rule 131 EPC. If a period expires on a day on which the EPO filing offices are not open, it is extended under Rule 134(1) EPC to the next day on which they are open. Rule 134(2) EPC also provides for extension where there is a general dislocation in delivery or transmission of mail in a contracting state, for parties resident in that state or represented by a representative with a place of business there.
Statement a)
False.
The communication is dated 26 February 2025. Under current Rule 126(2) EPC, it is deemed to be delivered on the date it bears, namely 26 February 2025.
The old 10-day rule no longer applies. Therefore, the communication is not deemed delivered on 8 March 2025.
Statement b)
True.
If the communication sets a two-month period, the ordinary calculation is:
26 February 2025 + 2 months = 26 April 2025.
However, 26 April 2025 was a Saturday. Under Rule 134(1) EPC, the time limit is extended to the next working day, Monday 28 April 2025.
The EPO then issued a notice concerning the major power outages in Spain, Portugal, Andorra and parts of France on 28 April 2025. For parties resident in France, Portugal or Spain, or represented by representatives with a place of business in those states, time limits expiring from 28 to 29 April 2025 were extended to 30 April 2025 under Rule 134(2) and (3) EPC.
Therefore, for a French applicant falling within that notice, the reply must be filed at the latest on 30 April 2025.
Statement c)
True.
If the communication sets a four-month period, the calculation is:
26 February 2025 + 4 months = 26 June 2025.
This date was not affected by the 28 April 2025 outage notice and does not require a Rule 134(1) extension. Therefore, the reply must be filed at the latest on 26 June 2025.
Statement d)
True.
If the four-month period expires on 26 June 2025 and the applicant does not reply, the application is deemed withdrawn under Article 94(4) EPC. Further processing is available for failure to reply to an Article 94(3) EPC communication.
Under Rule 135(1) EPC, further processing must be requested by paying the prescribed fee within two months of the communication concerning the failure to observe the time limit or loss of rights, and the omitted act must be completed within that same period. The Guidelines also state that a request for further processing may be filed between expiry of the missed time limit and notification of the loss-of-rights communication: Guidelines E-VIII, 2.
Thus, on 4 August 2025, the applicant can validly request further processing, provided the further-processing fee is paid and the omitted reply is filed.
Exam tip
For EPO communications dated after 1 November 2023, do not add 10 days. Start from the date borne by the communication. Then apply Rule 134 EPC extensions separately. Here, the two-month deadline benefits first from the weekend extension and then, for affected French parties, from the special OJ EPO 2025, A37 extension to 30 April 2025.
Legal Disclaimer
The information provided in this post is for general informational purposes only and does not constitute legal advice. This content should not be used as a substitute for professional legal advice tailored to your specific circumstances. For advice related to any specific legal matters, you should consult a qualified attorney.