Computation of times

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Chapter 1. Deadlines

TheA120 EPCis rather succinct and merely refers to the Regulations. We must therefore refer to R131 to R136 CBE for calculating deadlines.

Nevertheless, it must be borne in mind that when we say that a period expires a certain day "D", the completion of the expected action remains valid if this action is performed on the day of expiry (ie D-day).

On the other hand, the realization of the action will not be valid if this action is carried out the day D + 1.

Section 1.1. Step 1: Determine the starting point of the delay

1.1.1. Principle

There are several situations:

  • the period runs from the day after the actual service of the document causing the delay (R131 (2) EPC). For example :
    • notification according toA94 (3) EPC running a set time;
    • notification according to R71 (3) EPC causing a delay of 4 months ;
    • notification indicating a non-unit R64 (1) EPC and running a delay of 2 months ;
  • the period runs from the day after the occurrence of a legal fact. For example :
    • payment of filing and search fees during 1 month as from the filing of the application (A78 (2) EPC and R38 (1) EPC);
    • payment of designation fees in the 6 months from the mention of the publication of the RREE at the BEB (A79 (2) EPC and R39 (1) EPC);
    • opposition within a 9 months from the mention of the issuance to the BEB (A99 (1) EPC);
  • the period runs from the end of another period (ie compounded time). There are only three so-called "compound" deadlines:
    • the foreclosure period of 1 year for the restitutio in integrum running from the expiry of the unobserved period (A122 EPC and R136 EPC),
    • the deadline for 2 months to request the restitutio in integrum concerning the priority period or the application for review and running from the expiry of the time not observed (A122 EPC and R136 EPC), and
    • the grace period of 6 months for the payment of annuities for applications Euro-PCT who runs from the deadline of 31 months from the PCT deposit of the R159 (1) (g) EPC (A86 CBE and R51 (2) EPC, AX 5.2.4 Guidelines).

1.1.2. Focus on the meaning by the post

The EPO considers that, in the event of a notification by post, the period runs from the following day of the reception of the piece by the recipient (R131 (2) EPC).

In order to simplify the calculation of time limits, the EPC provides, arbitrarily and fictitiously, that the postal 10 days (R126 (2) EPC) unless it is longer.

In case of dispute, it is up to the office to provide proof as to the date of receipt of the document (R126 (2) EPC): a simple declaration by the postal service that the mail has been delivered is not sufficient (J14 / 14).

The notifications sent by post are (R126 (1) EPC):

  • decisions which give rise to a time limit for lodging an appeal,
  • decisions that cause a delay in filing a request for review,
  • the citations.

So far, the President of the EPO has not designated any other documents for which the registered letter with acknowledgment of receipt (Guidelines E-II 2.3).

1.1.3. Focus on meaning by "MailBox"

This mode of service is provided by the R125 (2) (b) EPC.

Some notifications can be served electronically via a tool called "MailBox".

  • the RREE and the RRI (" Notice from the European Patent Office dated 13 December 2011 concerning the EPO Online Services », OG 2012, 22);
  • other notifications (" Decision of the President of the European Patent Office dated 11 March 2015 on the pilot project to introduce new electronic means of communication for proceedings before the European Patent Office », OJ 2015, A28) whose list can be found on the EPO website (list of notifications available via Mailbox).

The 10-day period of the R126 (2) EPC is retained even via this method of transmission from the date of the notification or from the actual delivery in the Mailbox (the most recent date is taken into account, R127 (2) EPCand »Decision of the President of the European Patent Office dated 11 March 2015 on the pilot project to introduce new electronic means of communication for proceedings before the European Patent Office », OJ 2015, A28, A9 (4)).

Section 1.2. Step 2: Find the expiry date

A delay is always expressed in years, months, weeks or days.

1.2.1. Time expressed in years

The R131 (3) EPC has:

Where a period is expressed in one or more years, it shall expire, in the subsequent year to be taken into consideration, the month bearing the same name and the day having the same calendar as the month and the day on which the said event took place ; if the next month to be taken into consideration does not have a day having the same calendar, the period considered shall expire on the last day of that month.

To put it simply, let's take some examples by imagining that we have a delay of 1 year :

  • if the starting point is the 05/03/12, the period expires on 05/03/13 ;
  • if the starting point is the 29/02/12, the period expires on 28/02/13 (the month of February does not have 29th calendar in the year 2013).

1.2.2. Deadline expressed in months

The R131 (4) EPC has:

When a period is expressed in one or more months, it expires, in the subsequent month to be taken into consideration, the day having the same date as the day on which the said event took place; if the next month to be taken into consideration does not have a day having the same calendar, the period considered shall expire on the last day of that month.

The principle is quite similar to that of deadlines expressed in years.

Let's look at this through some examples by imagining that we have a delay of 1 month :

  • if the starting point is the 06/03/12, the period expires on 06/04/12 ;
  • if the starting point is the 31/01/12, the period expires on 29/02/12 (the month of February does not have 31st date, we take the last day of February).

There exists a exception concerning the period of 6 months to pay an annuity with surcharge (see article " Payment of renewal fees Detailing this topic).

1.2.3. Deadline expressed in weeks

The R131 (5) EPC has:

When a period is expressed in one or more weeks, it shall expire, in the week to be taken into consideration, the day bearing the same name as that in which the said event took place.

Here, I do not see too much difficulty, if the delay is 1 week and

  • if the starting point is the 06/03/12 (Tuesday), the period expires on 03/13/12 (Tuesday) ;
  • if the starting point is the 30/03/12 (Friday), the period expires on 06/04/12 (Friday).

1.2.4. Deadline expressed in days

It's so obvious that the R131 EPC did not even treat the subject 🙂

Section 1.3. Step 3: Extend the deadline

1.3.1. Time limits to which this extension applies

The R134 EPC applies to all deadlines defined as such in the EPC (including priority, Directives A-III 6.6).

Even if, in theory, taxes could be paid even if the EPO is closed, the principle of extension also applies to tax payments on those days (J1 / 81).

1.3.2. Causes of prorogation

1) Related to the offices of the EPO

This extension may be linked to the closure of one of the offices of the EPO (Munich, The Hague or Berlin) (R134 (1) EPC):

  • these closures correspond to:
    • the non-delivery of mail in one of these offices;
      • the holidays in Germany or the Netherlands;
      • the Saturday Sunday ;
    • exceptional cases of disturbances of one of the EPO's reception services (such as fax servers).
  • these closure dates are the subject of press releases by the President of the Office (eg " Notice from the President of the European Patent Office dated 6 September 2011, relating to the closing days of the EPO's reception offices in 2012 " OY 2011, 506 for days of non-delivery of mail in 2012);
2) Related to the competent administrations

The foregoing provisions also apply to acts done with a national authority competent to file an application (R134 (3) EPC).

This provision is important because it allows a party, failing its priority period, to file a European application in one of the closed competent national administrations (eg 14 July) during the period after the priority (possible if it concerns only a few days).

3) Linked to mail delivery problems

This extension may be at a general disturbance concerning the distribution or forwarding of mail (R134 (2) EPC):

  • in Germany or the Netherlands (for all);
  • in a contracting state (but only for parties or agents domiciled in that state).

For a general disturbance to occur, it is not necessary for the entire territory of a state to be affected, but the public must be affected (and not just certain categories of persons / recipients, J3 / 90).

In the case of a general disturbance, the EPO publishes, for legal certainty, the start and end dates of this disturbance (R134 (4) EPC).

It seems that a party can claim a disturbance even in the absence of a statement from the President (J11 / 88).

1.3.3. Procedure

It is not normally necessary to make a special request since this extension is automatically operation of laws », J11 / 88).

1.3.4. New date

The period is extended to next business day (according to the date calculated in step 2) where none of the four preceding conditions is fulfilled.

1.3.5. Clause "11 September"

In order to be completely exhaustive, mention should also be made of the (very rare) case where the distribution or routing of mail has been disrupted due to exceptional circumstances (natural calamity, war, civil disorder, general Internet failure, telephone, fax, courier, etc.) in the locality where the applicant or his representative resides (R134 (5) EPC).

In the latter case, the following conditions must be met (R134 (5) EPC):

  • to bring the proof such a disturbance at the EPO (convincingly),
  • this disturbance must have occurred in the Last 10 days preceding the expiry date of the period calculated previously,
  • the mail (eg reply to the official letter, etc.) was sent at the latest 5th day following the end of the disturbance.

So, if these three conditions are met, the document received late will be deemed to have been received on time.

This rule applies to all localities in the world and not only to the localities of the contracting states.

This rule has found its application:

  • for the New York attacks September 11, 2001
    • ( ' Notice from the President of the European Patent Office dated 19 October 2001 concerning the events of 11 September 2001 in the United States », OJ 2001, 563);
  • for the London bombings of July 7, 2005
    • ( ' Notice from the President of the European Patent Office dated 1 August 2005 concerning the events of 7 July 2005 in London (United Kingdom) », OJ 2005, 476);
  • for Hurricane Katrina
    • ( ' Notice from the President of the European Patent Office dated 19 September 2005 concerning the problems caused in the United States by Hurricane Katrina on 28 August 2005 », OJ 2005, 519);
  • for fires in Southern California
    • ( ' Notice from the President of the European Patent Office dated 15 November 2007 concerning the fires of 22 October 2007 in Southern California, United States », OG 2007, 671);
  • for earthquakes in Japan
    • ( ' Notice from the European Patent Office dated 15 March 2011 concerning the situation in Japan following the earthquake of 11 March 2011 », OY 2011, 272);
  • for floods in Thailand
    • ( ' Notice from the European Patent Office dated 13 January 2012 concerning the situation in Thailand following the end 2011 floods », OG 2012, 58);
  • for hurricane Sandy
    • ( ' Notice from the President of the European Patent Office dated 5 November 2012 concerning the problems caused by Hurricane Sandy in the United States as of 29 October 2012 », OCT 2012, 618).

Section 1.4. Step 3 (bis): Take into account additional time

Imagine that we are given extra time to perform the expected action. How to take it into account?

Should it be taken into account before or after step 3? Indeed, it can change a lot of things.

The answer is… it depends !

  • If we find ourselves in the presence of a compound delay, we must take it into account after step 3;
  • If we find ourselves in the presence of a non-compounded delay, we must take it into account before the stage.

In principle, there are only three so-called "compound" deadlines:

  • the foreclosure period of 1 year for the restitutio in integrum running from the expiry of the unobserved period (A122 EPC and R136 EPC),
  • the deadline for 2 months to request the restitutio in integrum concerning the priority period or the application for review and running from the expiry of the time not observed (A122 EPC and R136 EPC), and
  • the grace period of 6 months for the payment of annuities for applications Euro-PCT who runs from the deadline of 31 months from the PCT deposit of the R159 (1) (g) EPC (A86 CBE and R51 (2) EPC, see in particular the example given in the AX 5.2.4 Guidelines).

Let's summarize graphically ...

In the case of deadlines compoundswe have the following situation:

In the case of deadlines non-compoundswe have the following situation:

Section 1.5. Step 3 (ter): Consider a request for extension of time

For the time allowed, it may happen that we ask for a " extra time To answer (for example, for the response to a notification under Article 94 (3)).

But be careful, because it is an abuse of language: we are actually asking for an extension of the initial period.

Are you going to tell me it's the same? No, it changes everything! !

In fact, the extended period is calculated from the starting point of the initial period (Directives E-VIII 1.6).

For example, imagine that you receive a notification on October 20, 2012 according to theA94 (3) EPC and that we give you a deadline of 4 months to answer.

A little overwhelmed, you ask for an extension of time 2 months.

Is there a difference between considering that the deadline expires after 4 + 2 months or consider that the period expires after 6 months ?

  • Hypothesis 4 + 2 : you are deemed to have received the notification on 30/10/12; the end of the 4 months expires on 29/02/12; the end of the 4 + 2 months expires on 29/04/12 ;
  • Hypothesis 6 : you are deemed to have received the notification on 30/10/12; the end of the 6 months expires on 30/04/12.

You see that there is a difference!

The correct hypothesis is Hypothesis 6 which calculates the extended period from the starting point of the initial period.

Section 1.6. Step 4: Excuse a delay

1.6.1. Rule of 5 days (late pieces)

1) Principle

If parts are shipped more than 5 days before the expiry of the deadline and that they are received late by the EPO, they are deemed to have been received on time (R133 (1) EPC together " Decision of the President of the European Patent Office dated 11 March 2015 concerning the application of Rule 133 EPC concerning late received documents », OJ 2015, A29, art 1).

However, as far as filing under priority is concerned, the filing date remains the date on which the documents arrived at the EPO (J4 / 87) even if the delay in respect of the priority period is excused under the R133 (1) EPC.

2) Conditions

The conditions are as follows (R133 (1) EPC andDecision of the President of the European Patent Office dated 11 March 2015 concerning the application of Rule 133 EPC concerning late received documents », OJ 2015, A29):

  • the parts must be shipped more than 5 days before the end of the period:
    • the R134 (1) EPC not applying to the day before the letter must have been posted, so that day can be a holiday;
    • the R134 (1) EPC applying at the end of the period.
  • these pieces should not have been received more than 3 months after the delay R134 (1) EPC not applying, J12 / 05);
  • these documents must be sent by registered mail or via one of the following routing companies (but this list does not seem to be exhaustive) (this list is also valid for the international phase before the EPO, PCT newsletter n ° 3/2006 which also adds Deutsche Post Express and LTA):
    • Chronopost
    • DHL,
    • Federal Express,
    • Flexpress,
    • TNT,
    • SkyNet, and
    • UPS
    • Transworld
  • if these parts are shipped from a country outside Europe, it is necessary that the shipment be made by air:
    • considered as part of Europe, non-European countries belonging to the "European Conference of Postal and Telecommunications Administrations" CEPT »(« Notice dated April 1, 1999, concerning the amendment of the European Patent Convention, the Regulations and the Rules relating to Fees », OJ 1999, 301, point 32, footnote):
      • Andorra,
      • Azerbaijan,
      • Belarus
      • Bosnia and Herzegovina,
      • Georgia,
      • Moldova
      • Russian Federation,
      • Ukraine,
      • Vatican.
  • the timely delivery must be proved, upon request by the EPO, by submitting the receipt of delivery.

This rule also applies if these documents concern the filing of a priority application and are sent to a national office (R133 (2) EPC together A75 (1) (b) EPC and A75 (2) (b) EPC).

3) Time limits to which this rule applies

The R133 (1) EPC applies to all deadlines to be observed vis-à-vis the EPO or before a national Office (eg priority period) (Directives E-VIII 1.7).

4) Lost documents

If a document is lost, the provisions of the R133 EPC do not apply (OJ 1999, 301, point 25): indeed, the document must have been received in the 3 months.

5) Effects of R133 EPC

The piece is deemed to have been received on time (ie there is no sanction), but the piece is well received on the day of receipt (" Notice dated April 1, 1999, concerning the amendment of the European Patent Convention, the Regulations and the Rules relating to Fees », OJ 1999, 301point 25).

For example, if a document is mailed before the expiry of the priority period and received afterwards, the priority is valid, but the filing date remains the date of receipt by the EPO of the documents (J13 / 05).

6) Exclusion of payment of taxes

There are specific provisions for late payment of taxes (see below) and so the R133 EPC Not Applicable (" Notice dated April 1, 1999, concerning the amendment of the European Patent Convention, the Regulations and the Rules relating to Fees », OJ 1999, 301point 25).

It is therefore important to pay attention when two acts must be performed at the same time, including a payment.

1.6.2. 10-day rule (payment of taxes)

1) Principle

Normally, a payment is validly made when the money is in the account of the EPO (A7 (1) RRT).

2) Delay

Nevertheless, it can happen:

  • a transfer made before a deadline is not considered validly made in time because of interbank transfer time, or
  • that a payment order is not received in due time by the EPO due to the postal delay.
3) Reputed paid on time

To avoid any concern, a payment will be deemed to have been made on time if the following conditions are met (A7 (3) RRT):

  • if,
    • the transfer was made or ordered to a banking institution in a Contracting State;
    • the letter containing a current account debit order was mailed to a post office in a Contracting State and if the current account had sufficient funds at the end of the period (6.5 BCI, " Regulation on current accounts », OJ 3/2015, additional publication, p13);
  • if this has been done no later than ten days before the expiry of the period;
  • if the person making the payment can prove the two previous conditions.
4) Possible surcharge

Moreover, a simple surcharge of 10% sums due (not exceeding 150 €) will have to be settled if:

  • if,
    • the transfer was made or ordered to a banking institution in a Contracting State;
    • the letter containing a current account debit order was mailed to a post office in a Contracting State and if the current account had sufficient funds at the end of the period (6.5 BCI, " Regulation on current accounts », OJ 3/2015, additional publication, p13);
  • if this has been done less (strictly) ten days before the expiry of the period.
5) Procedure

A decision must be required in this case under the R112 (1) EPC and the evidence must then be provided (AX 6.2.6 Directives).

The EPO then invites, and if necessary, the applicant to pay the surcharge within a specified time (A7 (4) RRT) (time limit which must respect a minimum of 2 monthsbecause the R132 EPC applies, D7 / 07).

TheA121 EPC applicable to the time allowed (for the applicant) and theA122 EPC is applicable to the time limit (for the holder).

6) Case of payment of a surcharge surcharge

If a fee may be paid with surcharge in a further period, the 10-day rule applies to the normal time period, but also additional time with surcharge (AX 6.2.4 Guidelines).

The 10-day rule applies also the time limit for continuing the proceedings (AX 6.2.4 Guidelines).

7) Case of supplying a current account

The 10-day rule applies, by analogy, to payments made for the supply of a current account. Such payments shall be deemed to be effective not later than 10 days after the completion of the necessary acts (AX 6.2.2 Directives).

Section 1.7. A small example to put into practice

You receive a notification from the Office on January 20, 2012 asking you to say that you have 3 months to answer. This notification shall bear the date of January 18, 2012.

Until which date, included, can you answer?

To help you think, here is the list of holidays in 2012 at the reception desks of the Office:

Here is also a small calendar of 2012:

So we received this notification 2 days after it was sent, so we can apply the R126 (2) EPC (known as the "10-day rule"). So, the date from which the deadline runs is the January 28, 2012.

Even if January 28 is a Saturday, do not do anything! !! It's a virtual date and the R134 EPC extension does not apply here.

So, we must apply the 3 months : so we come to April 28, 2012 (Saturday).

This day being a Saturday, we must look for the next working day for all the offices ... Here, the R134 (1) EPC applies 🙂

  • the 29/04 is a Sunday thus closed with regard to the communication of the president of the office: one continues so ...
  • the 30/04 is a Monday, but this one is a holiday for the office of The Hague: one continues so ...
  • the 01/05 is a Tuesday, but it is a holiday in all reception offices the EPO (ie Labor Day in France): so we continue ...
  • the 02/05 is a Wednesday ... not a holiday!

Phew! !! we found our date! The last day it is possible to answer is the May 02, 2012.

Chapter 2. The particular case of the deadlines

Normally, the deadlines (R132 (1) EPC) by the EPO are (Directives E-VIII 1.2):

  • 2 months if the notification raises minor / formal issues;
  • 4 months if the notification raises substantive issues.

In certain special cases, the deadline may be extended upon request. It must be submitted in writing (possibly by fax, without need for confirmation Directives E-VIII 1.6) before it expires (R132 (2) EPC).

Normally, this extension is granted, even if the petition does not show cause (Directives E-VIII 1.6):

  • if the notification raises substantive issues, and
  • if the total time does not exceed 6 months.

An extension extending beyond 6 months may be granted only exceptionally if the grounds alleged convincingly demonstrate that the answer can not be made within the time limit (but vacation or work overload are not exceptional reasons, R132 (2) EPC and Directives E-VIII 1.6).

Similarly, an extension of 2 months will be given for notifications raising formal questions.

The EPO informs the petitioner whether his petition is accepted or warns him of the sanction that has taken or will take effect (Directives E-VIII 1.6).

A rejection of the extension is not subject to appeal (A106 (2) EPC and J37 / 89).

Chapter 3. The special case of annual fees

See the article Payment of renewal fees »Detailing this subject.

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