T2056/08: The 10 day rule of R126(2)

Calculating time limits is a subject that returns in the EQE every year. Some time limits are triggered by a notification by the EPO. An example is the time limit for filing of the Notice of Appeal under Art. 108 The law is quite simple if you understand how it works.

First, the article itself clearly says "...within 2 months from notification...".
Thus, from the moment of notification one has 2 months time.

This leaves open the question when someone is notified, i.e. when the respective time limit is actually triggered. Rule 126(2) answers this question. Notification is effected by registered letter, which letter shall be deemed to be delivered the 10th day following its posting.

Thus under the fiction of Rule 126(2) notification is effected 10 days after posting of the registered letter, regardless of whether the letter has been received earlier. It is only then that the time limit of Art. 108 is triggered, since only then one is actually (deemed) notified.

Therefore, when calculating time limits you always have to add the 10 days first and then add the respective time limit, in the case of Art. 108 two months (or 4 months for the Grounds of Appeal). Note also that Rule 134(1) does not apply to the 10 day rule of Rule 126(2).

Most EQE candidates are fully aware of and know how to deal with this, but apparently there are still some people who believe otherwise as was the case in T2056/08. A decision to refuse an application dated 21 July 2008 was sent to the represenatative and received on 29 July 2008.

Following the law, the time limit for filing the Notice of Appeal is:
21/07/2008 + 10 days --> 31/07/2008 + 2m --> 30/09/2008 (Tuesday)

The representative argued otherwise, basically saying that one should add the 2 months first, which would result in a due date of October 1, 2008.

The Board of Appeal in R. 4 says:
Although it has become customary to refer to the appeal period as "two months plus ten days", this case shows that this is an inexact formula. The ten days are not added on after the two months period, or are calculated arbitrarily from the date of the decision or from a date two months thereafter. Rather, the ten days specify a period after which delivery and therefore notification is presumed, and the two months period stipulated in Article 108 EPC starts from the day of the presumed (if delivery has taken place within the ten days period) or actual (if delivery has been effected after the ten days period) notification. Thus, if any rule of thumb could be suggested to calculate the appeal period, it should be "ten days plus two months" rather than, as was argued by the applicant, "two months plus ten days".

Read the decision here.