In recent months, the EPO has announced various “COVID-19” extensions of time, allowing additional time for responding to certain time periods (see our blog post here). The final “COVID-19” extension period expires 2 June 2020, but most workplaces are still a long way from being back to “normal”. What does the absence of a formal COVID-19 extension mean for EPO users?
As noted in our previous blog post on this topic, many significant deadlines were excluded from this extension including the deadline for filing a divisional application, and the deadlines for filing written submissions.
Rather than providing a blanket extension of time for most (but not all) EPO time periods, the expiry of the “COVID-19” extensions of time means that if a time limit is now missed after 2 June 2020, the onus is on applicants to demonstrate that the time limit is missed due to a dislocation in the delivery or transmission of mail caused by an exceptional occurrence affecting the locality where an applicant, a party or their representative resides or has his place of business. If there is disruption due to the pandemic, and any document received late will be deemed to have been received in due time if the person concerned offers evidence that on any of the ten days preceding the day of expiry of a period, it was not possible to observe the time limit due to this exceptional occurrence and that the mailing or the transmission was effected at the latest on the fifth day after the end of the disruption.
Hence the main difference between the current situation and the situation prior to 2 June is that the EPO must now be presented with evidence that it was not possible to meet the time period. In accordance with J 13/05, the burden of proof to provide evidence of the dislocation of mail falls with the party requesting the remedy. While requests under Rule 134(5) EPC do not need to meet the “all due care” standard required for re-establishment of rights, there is no guarantee that a request will be granted.
It is not clear how many applicants were taking advantage of the previous extension regime. Given that it is possible to file documents with the EPO electronically, probably the new arrangements will limit extension to circumstance where due to the prevailing COVID-19 situation, an applicant is physically prevented from filing a response to the EPO for example due to a need and an inability to access an office in order to submit a response.
For further advice, please contact your European representative.
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