D 2024: No 10 days anymore - unless you really want to (or stick to the version as defined in the REE/IPREE)!!!
The Supervisory Board of the EQE issued a decision on "Notification and time limit calculation" dated 26 June 2023:
"1. Candidates sitting the EQE 2024 (pre-examination and main examination) can use as legal basis Rules 126, 127 and 131 EPC as in force on 31 October 2023 or Rules 126, 127 and 131 EPC as in force on 1 November 2023.
2. In the main exam papers, the default Rules 126, 127 and 131 EPC to be applied are those in force on 1 November 2023. If the candidate chooses to apply Rules 126, 127 and 131 EPC as in force on 31 October 2023, this must be clearly indicated.
3. Candidate papers will be marked accordingly."
So when calculating time limits during Paper D 2024 that run from the (fictitious) date of notification of a document, you are free to use:
- either the current "10-day rule" for deemed notification (with true date of receipt if received later) according to current Rule 126(2)/127(2) (as in force until 31/10/2023 in line with Rules 2 & 22 IPREE) - in which case you need to indicate that you use the version as in force in 31/10/2023; Guidelines E-II, 2.3 and 2.4
- or the new PCT-like version (as in force from 1/11/2023) with deemed notification on date of dispatch/date of the document and a compensation for receipt later than 7 days (OJ 2022, A101, article 1(10)-(12); OJ 2022, A114, section IV; and OJ 2023, A29; also Guidelines E-II, 2.3 and 2.4) - in this case, you do not need to indicate that you use the new version (despite it deviating from Rule 2 & 22 IPREE).
Our Q&A books "Basic Legal Questions for Pre-Exam and Paper D" and "Main Exam Questions for Paper D" provide time limit calculations for both versions of R.126(2)/127(2) for (almost) all questions involving time limits calculated from the notification of a document.
Current Rule 126(2) EPC - as in force until and in 31/10/2023:
Where notification is effected in accordance with paragraph 1, the letter shall be deemed to be delivered to the addressee on the tenth day following its handover to the postal service provider, unless it has failed to reach the addressee or has reached him at a later date; in the event of any dispute, it shall be incumbent on the European Patent Office to establish that the letter has reached its destination or to establish the date on which the letter was delivered to the addressee, as the case may be.
Current Rule 127(2) EPC - as in force until and in 31/10/2023:
Where notification is effected by means of electronic communication, the electronic document shall be deemed to be delivered to the addressee on the tenth day following its transmission, unless it has failed to reach its destination or has reached its destination at a later date; in the event of any dispute, it shall be incumbent on the European Patent Office to establish that the electronic document has reached its destination or to establish the date on which it reached its destination, as the case may be.
Current Rule 131(2) EPC - as in force until and in 31/10/2023:
Computation shall start on the day following the day on which the relevant event occurred, the event being either a procedural step or the expiry of another period. Where the procedural step is a notification, the relevant event shall be the receipt of the document notified, unless otherwise provided.
Amended Rule 126(2) EPC - as in force as of 1/11/2023:
(2) Where notification is effected in accordance with paragraph 1, the document shall be deemed to be delivered to the addressee on the date it bears, unless it has failed to reach the addressee. In the event of any dispute concerning the delivery of the document, it shall be incumbent on the European Patent Office to establish that the document has reached its destination and to establish the date on which the document was delivered to the addressee. If the European Patent Office establishes that the document was delivered to the addressee more than seven days after the date it bears, a period for which the deemed receipt of that document is the relevant event under Rule 131, paragraph 2, shall expire later by the number of days by which the seven days were exceeded.
Amended Rule 127(2) EPC - as in force as of 1/11/2023:
(2) Where notification is effected by means of electronic communication, the electronic document shall be deemed to be delivered to the addressee on the date it bears, unless it has failed to reach its destination. In the event of any dispute concerning the delivery of the electronic document, it shall be incumbent on the European Patent Office to establish that the document has reached its destination and to establish the date on which it reached its destination. If the European Patent Office establishes that the electronic document has reached its destination more than seven days after the date it bears, a period for which the deemed receipt of that document is the relevant event under Rule 131, paragraph 2, shall expire later by the number of days by which the seven days were exceeded.
Amended Rule 131(2) EPC - as in force as of 1/11/2023:
(2) Computation shall start on the day following the day on which the relevant event occurred, the event being either a procedural step or the expiry of another period. Where the procedural step is a notification, the relevant event shall be the deemed receipt of the document notified, unless otherwise provided.
For comparison: PCT Rule 80.6 (under PCT, the applicant has the burden of proof of late receipt; whereas under the new EPC provisions, the EPO has the burden of proof in case of dispute):
Where a period starts on the day of the date of a document or letter emanating from a national Office or intergovernmental organization, any interested party may prove that the said document or letter was mailed on a day later than the date it bears, in which case the date of actual mailing shall, for the purposes of computing the period, be considered to be the date on which the period starts. Irrespective of the date on which such a document or letter was mailed, if the applicant offers to the national Office or intergovernmental organization evidence which satisfies the national Office or intergovernmental organization that the document or letter was received more than seven days after the date it bears, the national Office or intergovernmental organization shall treat the period starting from the date of the document or letter as expiring later by an additional number of days which is equal to the number of days which the document or letter was received later than seven days after the date it bears.
SHARE:
Interesting difference in choice of relevant versions/dates of the legal texts for the EPO-organized exams:
ReplyDeleteEPAC (specified in Marking Rules): “Marking will be carried out on the basis of the articles and rules in force on the day of the examination.”
EQE (specified in Rule 2 IPREE): “The examination syllabus referred to in Article 13 REE shall cover only those legal texts referred to in Article 13(1)(a) to (c) REE which are in force on 31 October of the year prior to the examination.” (And the EQE is usually in first half of March and/or late February)
Note that, until and including EQE 2018, the relevant date was 31 December (see e.g. OJ Supp, 2/2017, 18)
I think it is a good decision to also allow to answer based on the new version of the rules - it would be strange to force candidates to apply notification rules that have already been amended many months before the exam and where everybody is used to apply the new versions, every day, in daily life (except for some exceptional situations, e.g., where a document was dispatched in the last week of October with a 4m time limit, and where the applicant requested an extension with 2m...). But it calls into question why it is still required to use the 31.10 versions for all other legal provisions. Why would there only be an exception for Rule 126(2)/127(2)/131(2), why not -as for EPAC- use the version in force on the date of the exam for all provisions? And why is the cutoff date so far before the exam (it was even moved earlier from 31.12 to 31.10 only a few years ago) - certainly with online exams it would be possible to change/replaced a question on short notice if a legal change would render the planned question unclear or non-workable.
ReplyDeleteAnd, I am also quite surprised about the choice to have the new version (which only enters into force after 31.10) as the default and to thereby deviate from REE/IPREE, which specifies that that the versions of the legal texts on 31.10 has to be used. One would expect that that would be the default, isn’t it?
NB: will be interesting to see which date will be required for the New EQE and how a computer-/auto-marked marking scheme will deal with last-minute legal changes or changes after the cutoff date (the D committee has indicated already several years that they also accept the newer edition of Guidelines, i.e. that of 01.03.YY when the exam is in 03.YY, as an alternative to the IPREE-version of the Guidelines, i.e. that in force on 31.10.YY-1 = version of 01.03.YY-1.
DeleteInteresting. Do you expect they will revise (or have already revised) EQE2024 such that the outcome (e.g., lapsed time limit) does not depend on whether you apply the old rule or the amended rule. Either that, or there would have to be two (full) solutions in the Examiner's Reports.
ReplyDeleteThe former would also appear to give candidates a sanity check, i.e., if the outcome of the two calculations is different, perhaps the applied starting date or time period is incorrect.
Yes, I do expect that the outcome will not depend on the version used, else a different impact on the rest of the paper could be considers to result in unequal treatment.
DeleteBut that does not mean that there will not be time limit calculations necessary, and also not that there will not be marks for them!
I would not recommend to do both: the decision allows you to pick one OR the other, not both, and your answers have the risk to be inconsistent if you use both. Pick the one that you make the least errors with - when true receipt is within 10/7 days, and also when it is much later (in the first case, the new version is easier; in the latter case, the current version is much easier than the new version! - at least in my opinion and as we experimented with yesterday in a course session)
Whether the papers need to be revised or not, I do not know and I do not consider it relevant. (If needed, there is still time, so I see no reason to worry.)
Note that the robustness for either version is most important in the Pre-Exam, where you need to decide T/F without having a chance or need t indicate which version you use.
Dear Roel, this notice is not completely clear to me. By choosing which version to use, do you think we should 1) apply the law as of 1 Nov 23 (or 31 Oct 23) to ALL the dates or 2) apply the law as of 1 Nov 23 for dates after 31 Oct 23 and the law as of 31 Oct 23 for dates until 31 Oct 23? Thanks
ReplyDeleteThe decision says you can choose, whatever you prefer, irrespective of the date of the letter (as long as, if you choose the old version you indicate so).
Delete(If you would be required to use the real transitional provisions, the decision would have said so - but it says you can choose)
Dear LP,
Delete“ 1. Candidates sitting the EQE 2024 (pre-examination and main examination) can use as legal basis Rules 126, 127 and 131 EPC as in force on 31 October 2023 or Rules 126, 127 and 131 EPC as in force on 1 November 2023.” seems fully clear and unambiguous to me.
Why do you consider it unclear?
By the way, the EQE 2024-editions of our L-book (Basic Legal Questions for Pre-Exam and Paper D) and D-book (Main Exam Questions for Paper D) show both time limit calculations, with both the old and new versions of the Rules, in the answers.
DeleteDear Roel, I find it unclear because the Rules 126, 127 and 131 EPC as in force on 1 November 2023 still provide that the 10-day rule can be applied for communications arrived before November 1st. And also, in the notice is not explicitly reported that the calculation is to be made irrespective of the date of the letter. I also contacted the secretariat but again they did not explicitly say that.
DeleteAnyway, to be sure, I think I will apply those in force on October 31st. Thank you so much for your feedback!
Hi LP, you wrote that "I find it unclear because the Rules 126, 127 and 131 EPC as in force on 1 November 2023 still provide that the 10-day rule can be applied for communications arrived before November 1st", but that is not correct: the transitional provisions so provide, not the Rules themselves ;)
Delete