Response of the European Patent Office to the war in Ukraine

In response to the ongoing military aggression against Ukraine, the European Patent Office (EPO) has issued a notice relating to provisions allowing for deadline extensions in view of the conflict. The notice accompanies strongly worded expressions of solidarity with Ukraine from patent offices and organisations across Europe, as well as donations of practical assistance. 

The EPO notices relates to Rule 134(5) EPC, which provides a safeguard in the case of non-observance of a deadline due to an exceptional occurrence such as a natural disaster, war, civil disorder, a general breakdown in any of the means of electronic communication in the place where an applicant, party or representative lives or works. The EPO notice confirms that Rule 134(5) EPC may be invoked by those affected by the aggression against Ukraine.

Dark days for Europe

To make use of the Rule 134(5) safeguard, the affected party must submit evidence that it was not possible to observe the time limit on any of the ten days before the day of expiry of the relevant period, due to the exceptional circumstance. Evidence must also be provided showing that the mailing or the transmission of the response was affected at the latest 5 days after the end of the disruption. 

Is reliance on the provisions of Rule 134(5) enough in the present circumstances? In response to the COVID-19 pandemic, the EPO extended all deadlines  using Rule 134(2) EPC (IPKat), which allows the EPO to extend time limits in cases of general dislocation in the delivery or transmission of mail in an EPC contracting state, without the need for parties to submit evidence. Rule 134(2) EPC can not be applied in the current circumstances, given that Ukraine is not a contracting state to the EPC. Ukraine is a member of the PCT but the EPO notice notes that Rule 134(5) does not apply to the period for claiming priority, although restoration of the right of priority under Rule 26bis.3 PCT may be available depending on the jurisdiction. The EPO notice does note however that "potential further measures" will be discussed at the next meeting of the Administrative Council on 22 March 2022.

The EPO has also frozen cooperation activities with the national patent offices of Russia, Belarus, and the Eurasian Patent Organisation. 

Meanwhile, the Ukrainian patent office (Ukrpatent), located in Kyiv, continues to publish updates on its website, including the expressions of support and outrage it has received from the EPO, EUIPO, and the patent offices of Benelux, Austria, Finland, Lithuania, Estonia, Georgia, Poland and Slovakia. The EPO's statement in particular expresses its solidarity with all those suffering from violence in Ukraine and all refugees seeking safety in other countries. Ukrpatent has received and distributed several batches of medicines and humanitarian aid from its international partners, including the EPO. 

The thoughts of the IPKat team are with the people of Ukraine.