Legal framework
Under Article 94(3) EPC, the examining division may invite 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 If the applicant fails to reply in due time, the European patent application is deemed withdrawn under Article 94(4) EPC.
For communications notified by postal services, Rule 126(2) EPC now provides that the document is deemed delivered on the date it bears, unless it has failed to reach the addressee or was delivered more than seven days after that date. This applies to the present communication dated 13 May 2025.
Under Rule 131(4) EPC, a period expressed in months expires in the later month on the day having the same number as the day of the relevant event. Under Rule 134(1) EPC, if that date falls on a day on which 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 false.
The communication is not deemed delivered on 23 May 2025. That would correspond to the former “10-day rule”.
For communications after the amendment effective from 1 November 2023, the communication is deemed delivered on the date it bears, here 13 May 2025, unless the exceptional safeguards in Rule 126(2) EPC apply. No delayed delivery is mentioned in the facts.
Statement b)
Statement b) is true.
The four-month period starts from the deemed delivery date, 13 May 2025. Four months from that date gives 13 September 2025 under Rule 131(4) EPC.
However, 13 September 2025 was a Saturday. Under Rule 134(1) EPC, the period is extended to the next day on which the EPO filing offices are open, namely Monday 15 September 2025.
Therefore, the time limit expires on 15 September 2025.
Statement c)
Statement c) is false.
Further processing is in principle available for failure to reply to an Article 94(3) EPC communication. However, the time limit for requesting further processing is not calculated directly from the expiry of the original four-month period.
Under Rule 135(1) EPC, further processing must be requested 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 that same period.
Here, the facts do not give the date of any loss-of-rights communication. Therefore, the final date for requesting further processing cannot be fixed as 17 November 2025.
Statement d)
Statement d) is true.
The reply period expires on 15 September 2025. Under Rule 132(2) EPC, a period specified by the EPO may, in special cases, be extended upon request filed before expiry of that period.
A request filed on 12 September 2025 is therefore filed before expiry of the period and can be validly requested.
Exam tip
For EPO communications dated after 1 November 2023, do not add ten days. Start from the date the communication bears, unless the seven-day safeguard applies. Then apply the normal month calculation and finally check Rule 134 EPC for weekends or EPO closure days. Further processing is different: its two-month period starts from the loss-of-rights communication, not from the missed original deadline.
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.