Legal framework
Under Article 94(3) EPC, where examination reveals that the application does not meet the requirements of the EPC, the examining division invites the applicant to file observations and, where appropriate, amendments. If the applicant fails to reply in due time, the application is deemed withdrawn under Article 94(4) EPC.
For postal notification, Rule 126(2) EPC provides that a document is deemed delivered on the date it bears, unless it fails to reach the addressee. If the EPO establishes that the document was delivered more than seven days after the date it bears, the period triggered by deemed receipt is extended by the number of days by which those seven days were exceeded.
The Guidelines give the same example-based rule in E-II, 2.4: if a document is delivered ten days after the date it bears, the period is extended by three days.
Calculation
The communication is dated 26 February 2025. Under the normal rule, it is deemed delivered on that date.
A four-month period from 26 February 2025 expires on 26 June 2025 under Rule 131(4) EPC.
However, actual delivery took place on 10 March 2025. This is 12 days after 26 February 2025. The seven-day safeguard is therefore exceeded by 5 days.
So the deadline is:
26 June 2025 + 5 days = 1 July 2025.
Statement a)
False.
The deadline is not calculated simply from the actual receipt date of 10 March 2025. Rule 126(2) EPC does not replace the deemed delivery date with the actual delivery date. It only extends the period by the number of days exceeding seven days.
Thus, the deadline is not 10 July 2025.
Statement b)
True.
The normal four-month deadline is 26 June 2025. Because the communication was delivered 12 days after the date it bears, the safeguard extends the time limit by 5 days.
The time limit therefore expires on 1 July 2025.
Statement c)
False.
There is no basis for extending the period to 7 July 2025. The late-delivery safeguard adds only 5 days, not the whole delay from the date of the communication to the date of actual receipt.
Statement d)
False.
For the same reason, 8 July 2025 is not the correct expiry date. The applicable expiry date is 1 July 2025.
Exam tip
For communications dated after the abolition of the old 10-day rule, start from the date borne by the communication. If actual delivery is proven to have occurred more than seven days later, do not restart the period from the actual receipt date. Instead, add only the number of days exceeding seven. Here: 12 days after the date borne minus 7 days = 5 extra days.
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.