The EPO and EUIPO have announced
that, in response to the disruption caused by COVID-19, deadlines at the offices will be extended.
The EPO announced that all deadlines are extended until
17 April 2020. The announcement takes the form of a Notice in the Official
Journal which can be read in full here. Rule
134(2) EPC provides that if a deadline expires on “a day on which there
is a general dislocation in the delivery or transmission of mail in a
Contracting State, the period shall extend to the first day following the end
of the internal of dislocation for parties which are resident in the State”. If
the State is one in which the EPO is located, the provision applies to all
parties and their representatives.
The EPO Notice acknowledges that Germany “is experiencing restrictions on the movement and
circulation of persons as well as certain services, exchanges and public life
in general, which can be qualified as general dislocation within the meaning of
Rule 134(2) EPC”. Therefore, “periods expiring on or after the date of the
publication of this notice are thus extended for all parties and their representatives to 17 April 2020”. The extension also applies to PCT applications
handled by the EPO (Article
150(2) EPC).
The EPO Notice acknowledges that Germany “is experiencing restrictions on the movement and
circulation of persons as well as certain services, exchanges and public life
in general, which can be qualified as general dislocation within the meaning of
Rule 134(2) EPC”. Therefore, “periods expiring on or after the date of the
publication of this notice are thus extended for all parties and their representatives to 17 April 2020”. The extension also applies to PCT applications
handled by the EPO (Article
150(2) EPC).
The EPO notice therefore applies to all deadlines at the EPO
(including those for international applications) falling due from the date of the notice until 17 April
2020.
The EUIPO has taken a similar measure. The Executive Direct
of the EUIPO announced today that they would be “extending all time limits expiring between 9
March and 30 April, that affect all parties before the Office to 1 May 2020”. The
full decision of the EUIPO can be read here.
BREAKING: EPO and EUIPO extend deadlines in response to COVID-19 pandemic
Reviewed by Dr Rose Hughes
on
Monday, March 16, 2020
Rating:
Reviewed by Dr Rose Hughes
on
Monday, March 16, 2020
Rating:
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Posts
Worth noting that the notice is not yet in force. Seems likely that all deadlines falling within 15 March to 17 April *will be* extended. But not set in stone yet.
ReplyDeleteThe EPO provision only applies to particular areas as well.
ReplyDeleteI disagree with you there Kant. The EPO has said that post is disrupted in Germany, and hence post is disrupted for the EPO itself. Thus, deadlines will be extended for parties in all areas.
ReplyDeleteThe EPO notice is only effective as of its publication in the Official Journal. Unhelpfully, no indication is provided as to when it will be published. Can anyone enlighten us?
ReplyDeleteKant - the notice explicitly says that it applies to "all parties and their representatives". It does not say that it only applies to (e.g.) those in Germany or in particular areas thereof. The summary in the IPKat post appears accurate to me. However, it is not as clearly drafted as one might have hoped.
The OJ is usually published on the last working day of the month, so should be published 31 March 2020.
Delete@Anonymous The dislocation provisions apply to periods expiring on or after the date of the publication of the notice. In view of the preamble of the advance notice on the EPO website, it is unclear if the advance notice is a "publication of the notice". For safest practice, the OJ publication of the notice can be taken as the "publication of the notice". As this has not yet occurred, it is questionable whether periods expiring between March 15th and the publication of the notice in the OJ are, indeed, extended.
ReplyDelete@Anonymous 11:46
ReplyDeleteExactly - the notice is "dated" 15 March but it is unclear when it will be published and therefore also unclear what happens to dates falling between 15 March and its official date of publication. The precautionary approach is to assume that all dates run as normal until formal publication of the notice. The EPO should clarify, though.
Rule 134(2)EPC does not require publication, just the fact of a general dislocation in the delivery or transmission of mail in the State in which the European Patent Office is located [Germany].
ReplyDeleteAny periods due are extended until the first day following the end of the interval of dislocation.
It is nice to see the notice acknowledges the start of the disruption [Rule 134(4)EPC], but it appears rather presumptuous (although useful) to name an end date in advance.
Yes, but all we know is that the EPO currently intends to formally ack that the German dislocation started on 15 March. If they change their mind before formal publication, then you would have to provide evidence to prove it yourself... I don't fancy that myself.
DeleteMeldrew - I disagree. The notice explicitly refers to "periods expiring on or after the date of the publication of this notice", and *not* to periods determined according to the start date of the dislocation, which is undefined. I don't see that Rule 134(2) unambiguously clarifies this matter.
DeleteThe EPO can in theory change their mind anytime up to publishing this in the actual OJ. This seems rather absurd to me, so in my opinion they should get and publish a special mini-edition of the OJ today!
ReplyDeleteEither someone had the same concerns about the publication date or EPA personel reads the IPKat: The notice has now been updated to read "Periods expiring on or after the date of this Notice are thus extended"...
ReplyDeleteYes, I had spotted this issue too. I agree with Meldrew that Rule 134(2) EPC would, in view of the acknowledgement of a general dislocation in Germany, kick into effect regardless. Nevertheless, out of an abundance of caution, I contacted the EPO to seek clarification. It seems that the amended Notice has answered my query.
DeleteNo - it always did - the problem is that that sentence itself, like the rest of the Notice, only becomes legal when it appears in the OJ. This is stated at the top in red, and says: "This text is intended for publication in the Official Journal (OJ) of the EPO. It is made available in advance on the EPO website merely as a courtesy to the public. Only the text subsequently published in the officially certified PDF file of the OJ is authentic. It cannot be guaranteed that this advance version accurately replicates that text."
ReplyDeleteEven if the EPO would change its point of view, what I doubt, legitimate expectations have been brought to life, and I do not see any problem.
ReplyDeleteIn some aspects the upper management of the EPO might behave strangely, but here it was not as such a political decision, but a decision which imposes itself.
Quite alarming that I had to read this far before anyone mentioned legitimate expectations.
DeleteTo be fair, no one wants to rely on that unless strictly necessary. Still, I suspect we all agree that you could def argue legit expectations. Not least because the EPO's wording is stronger elsewhere "All time limits expiring on or after 15 March 2020 are thus extended until 17 April 2020".
DeleteI think the debate is because clients want 100% certainty. I suspect everyone posting above agrees that we had 99% certainty by the time this article was posted. Pragmatically, "Back to Earth please" is obviously right, but if you don't want involved discussion about a minuscule possibility, I would suggest anon comments below blog posts are not the best place to look...
A more interesting debate, that I have seen elsewhere, is: does this apply to filing a divisional application? Probably not... Re-estab doesn't even apply to that does it?
It's not an interesting debate because the notice clearly doesn't apply to filing a divisional application. Pendency of the earlier application is a condition for filing a divisional application rather than a period to which Rule 134 EPC applies.
DeleteI still don't see why the EPO couldn't just issue a mini-edition of the OJ, given it's not the old days of actual paper printing?
ReplyDelete