Legal framework
Under Article 94(3) EPC, if the examining division considers that the application does not meet the EPC requirements, it invites the applicant to file observations and, where appropriate, amendments. If the applicant fails to reply in due time to such a communication, the application is deemed to be withdrawn under Article 94(4) EPC.
For notifications by postal services, Rule 126(2) EPC now provides that the document 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. If delivery occurs more than seven days after the date borne by the document, the relevant period is extended by the number of days by which the seven days were exceeded. Here, the communication is dated 5 August 2025 and was received on 8 August 2025, so it was received within seven days. No additional days are added.
Under Rule 131(2) and (4) EPC, where the relevant event is notification, computation starts on the day following the deemed receipt, and a period expressed in months expires in the later month on the day having the same number. Under Rule 134(1) EPC, if the period expires on a day on which the EPO filing offices are not open for receipt of documents, the period is extended to the next day on which they are open.
Statement a)
Statement a) is true.
The communication is dated 5 August 2025. Since it was received on 8 August 2025, i.e. within seven days of the date it bears, there is no extension under the safeguard in Rule 126(2) EPC. The communication is therefore deemed delivered on 5 August 2025.
The two-month time limit is calculated from that deemed delivery date. Two months from 5 August 2025 leads to 5 October 2025 under Rule 131(4) EPC. Since 5 October 2025 was a Sunday, the period is extended under Rule 134(1) EPC to Monday 6 October 2025.
Therefore, the time limit expires on 6 October 2025.
Statement b)
Statement b) is false.
Filing the adapted description on 10 October 2025 would be late, because the time limit expired on 6 October 2025.
The fact that no notice of loss of rights under Rule 112(1) EPC has yet been received does not make the late filing timely. The legal consequence of failure to reply in time has already occurred: under Article 94(4) EPC, the application is deemed withdrawn if the applicant fails to reply in due time to an examining division communication.
The loss-of-rights communication merely informs the party that the loss of rights has occurred.
Statement c)
Statement c) is false.
Further processing is available in principle for a missed time limit to reply to an Article 94(3) EPC communication. However, the time limit for requesting further processing is not calculated from the original communication or from the date on which the original time limit expired.
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 a time limit or a loss of rights, and the omitted act must be completed within the same period.
Here, no loss-of-rights communication has yet been received. Therefore, the final date for requesting further processing cannot yet be calculated. It is not necessarily 8 December 2025.
Statement d)
Statement d) is false.
An extension of a time limit set by the EPO may be requested only before expiry of that period. Rule 132(2) EPC provides that, in special cases, a period may be extended upon request presented before expiry of the period. The Guidelines also state that the written request must be submitted before the period set has expired.
Here, the relevant time limit expired on 6 October 2025. A request for extension filed after that date would be too late, even if no Rule 112 loss-of-rights communication had yet been issued.
Exam tip
For EPC communications dated after the abolition of the old 10-day rule, start from the date the communication bears, unless it was received more than seven days after that date. Then check weekends and EPO closure days. Also, do not confuse an extension request with further processing: an extension must be requested before the original period expires, whereas further processing is triggered by the later loss-of-rights communication.
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.