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Law & practice

Official Journal March 2022

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Citation: OJ EPO 2022, A26
Online publication date: 31.3.2022

Notice from the European Patent Office dated 3 March 2022 concerning the application of Rule 134(5) EPC in the situation resulting from the military aggression against Ukraine

1. In view of the recent military aggression against Ukraine, attention is drawn to the general legal remedies provided for under the European Patent Convention in cases of non-observance of time limits and, more specifically, to Rule 134(5) EPC.

2. Rule 134(5) EPC offers a safeguard in the case of non-observance of a time limit as a result of 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 their place of business. This provision applies to cases where the failure to observe time limits is the result of exceptional circumstances beyond the control of the person concerned and may therefore be invoked by any applicants, parties to proceedings or their representatives affected by the aggression against Ukraine.

3. Pursuant to Rule 134(5) EPC, 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 such an exceptional occurrence and that the mailing or the transmission was effected at the latest on the fifth day after the end of the disruption.

4. As for time limits and conditions applicable under the PCT, applicants are referred to Rule 82quater.1 PCT. This provision applies to international applications pending in the international phase, but not to the period for claiming priority. Nevertheless, if an international application is received at the EPO after expiry of the priority period, restoration of the right of priority pursuant to Rule 26bis.3 PCT may be available.