Legal framework
Under Article 94(3) EPC, if the examining division considers that the application does not meet the requirements of the EPC, 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 If the applicant fails to reply in due time to such a communication, the application is deemed withdrawn under Article 94(4) EPC.
For communications issued after the abolition of the old 10-day rule, notification is deemed to occur on the date the document bears, unless the document fails to reach the addressee. This follows from the current notification rules, including Rule 126(2) EPC for postal notification and Rule 127(2) EPC for electronic notification.
Time limits 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 for receipt of documents, the period is extended under Rule 134(1) EPC to the first following day on which all filing offices are open and mail is delivered.
Statement a)
False.
The communication under Article 94(3) EPC is dated 14 May 2025. Under the current notification rules, it is deemed delivered on the date it bears, i.e. 14 May 2025. The old 10-day rule no longer applies.
Therefore, it is not deemed delivered on 26 May 2025. In any event, 26 May 2025 was a Monday, not a Sunday.
Statement b)
True.
The four-month period starts from the deemed delivery date, 14 May 2025.
Applying Rule 131(4) EPC:
14 May 2025 + 4 months = 14 September 2025.
However, 14 September 2025 was a Sunday. Under Rule 134(1) EPC, the time limit is extended to the next working day, namely Monday 15 September 2025.
Thus, without using further processing or another procedural prolongation, the reply must be filed by 15 September 2025.
Statement c)
False.
Further processing is available for failure to reply to an Article 94(3) communication, but the deadline is not calculated simply as two months from the missed reply deadline.
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. The omitted act must also be completed within that same period.
That loss-of-rights communication is issued under Rule 112(1) EPC after the EPO notes that a loss of rights has occurred.
Therefore, 17 November 2025 cannot be stated as the final date for requesting further processing merely by adding two months to the original reply deadline. The relevant trigger is the notification of the Rule 112 communication, not the expiry date of the original Article 94(3) period.
Statement d)
True.
A time limit set by the EPO may be extended under Rule 132(2) EPC if the request is filed before the expiry of the period. The Guidelines confirm that such a request must be submitted in writing before expiry of the period set by the EPO: Guidelines E-VIII, 1.6.1.
Here, the unextended deadline expires on 15 September 2025. A request filed on 12 September 2025 is therefore filed before expiry of the time limit and can be validly requested.
Exam tip
For EPO communications dated after 1 November 2023, do not add 10 days. Start from the date borne by the communication, unless a specific delivery problem triggers the new safeguard. Then calculate the period under Rule 131 EPC, apply Rule 134 EPC if the expiry date falls on a closing day, and keep further processing separate: its two-month period runs from the Rule 112 EPC communication, not from the original missed 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.