Time limit calculations

The majority of D1 and pre-exam legal questions include at least one time limit calculation, usually even more. So, it is very important to practice it and learn the legal basis (in Paper D, you also have write the calculation down). Don’t worry if it is overwhelming at first! After a few weeks of practicing, you will know the relevant legal basis by heart and write the calculations very quickly.

Art. 120 EPC and Rules 131 to 136 EPC are dealing with time limits. The issue of notifications (Art. 119 EPC) is closely linked to the issue of time limits.

According to J 18/04, time limits in the EPC have two conceptual elements: a period of time and a relevant date (priority date, filing date, a notification, etc.). According to Rule 131(2) EPC, the computation of a time limit "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."

A few tips

• Pay attention to the text of the question: “due date” can be different from “the last day” something can be done.

  Let’s see an example:

  11 October 2018 is the filing date of a European patent application.

  What is then the due date of the 3rd annuity fee?
  Answer: 31 October 2020, Saturday (Rule 51(1) EPC). (You can calculate this quickly by adding 2 years to the filing date and then writing down the last day of that month.)

  What is the last day the 3rd annuity fee can be paid without surcharge?
  Answer: 2 November 2020, Monday. (Because 31 October 2020 is Saturday.)

  What is the last day the 3rd annuity fee can be paid with surcharge?
  Answer: 30 April 2021 Friday. (6 months are added to the due date of 31 October and not to the last day the annuity can be paid.)

  Remember, the grace period for the payment of an annuity with an additional fee is triggered by the due date. The due date is not the same as the expiry of a time period.

• Don’t forget to check the final date in the calendar to see if the office is open or not.

  This is basic, but unfortunately many people forget it. I usually wrote the name of the day next to my calculated time limit so that I know that I already checked it in the calendar.

  You don’t have to check the calendar at every step, for example, it doesn’t matter if, after adding 10 days for R.126(2) EPC you get a Sunday.

  However, you do have to check the final date you get after your calculation. If it is a weekend or a holiday, choose the next working day and add R.80(5) PCT or R.134(1) EPC as legal basis.

• Add the 10 days under R.126(2) EPC before calculating the time period.

  When calculating these types of time limit, you must first add ten days and then the relevant number of months. Again, it does not matter if you get a holiday or weekend after adding the 10 days.

• Always cite the correct legal basis.

  For EPC, use these:

  • R.131(4) EPC when adding months

  • R.134(1) EPC extension if the time limit would end on weekend or holiday

  • R.126(2) EPC 10-day deemed delivery rule

  For PCT, use these:

  • R.80.2 PCT when adding months

  • R.80.5 PCT extension if the time limit would end on weekend or holiday

  • R.80.6 PCT extension of time limit if letter received more than seven days after the date it bears

  For priority related questions not in the EPC, use Paris Convention (PC) and not EPC, cite Art.4C(1) PC for example for the 12-month period.

• Check the number of days in the relevant month.

  Rule 131(4) EPC refers to time limits specified in months: "…expire in the relevant subsequent month on the day which has the same number as the day on which the said event occurred; if the relevant subsequent month has no day with the same number, the period shall expire on the last day of that month."

  So, for example:

  15 May + 1 month –> 15 June

  31 July + 2 months –> 30 September

  31 October + 4 months –> 28 February

• Calculate both periods when you have to choose from two dates.

  In Paper D, if the time limit is the latest of two dates, calculate both periods in writing and then conclude which one is the latest and the applicable.

  For example, you will need to calculate two dates when:

  • correcting the declaration of priority under R.52(3) EPC

  • filing the request for examination for Euro-PCT applications under R.70(1) and R.159(1)(f) EPC, or

  • paying the 3rd annuity fee for Euro-PCT applications under R.51(1) and R.159(1)(g) EPC

• Draw a conclusion.

  The questions with time limits usually also include the today’s date (the day of the Paper D exam, but this is usually written in the question). After calculating the time limit, check how the date you calculated compares to today’s date.

  For example:

  Is it in the past? –> Say that the time limit expired but we can request Further Processing by paying …

  Is it today? –> Say that we have to act today in order to pay the fee without surcharge.

  Do we still have time? –> Say that we have until … to file a response to the notification.

• This is how I wrote the time limit calculations in the e-EQE:

  22 Feb 2019 + 2 m. (Art.108 and R.131(4) EPC) –> 22 April 2019 Easter, so extended to 23 April 2019 Tuesday (R.134(1) EPC)

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Did you know that there is a free online EPO course with lots of time limit questions in quiz format? Access it here.