14 July 2010

"Ich Bin ein Jelly Doughnut" - Is Machine Translation the Key to a Pan-European Patent?

There is no question that the quality of machine translations between a variety of languages is gradually improving.  If a new proposal from the European Commission is ever put into effect, many users of the European patent system may find themselves reliant on computer-generated translations, for non-legally-binding "information" regarding the patent rights of their competitors in Europe.

The Commission is attempting once again to resolve the impasse over language and translation, and clear the way for the implementation of a unitary patent registration and enforcement regime covering the entire European Union.

BACKGROUND TO THE EU PATENT

The European Union (EU) Patent (formerly known as the Community Patent), if the members of the Union were ever able to reach an agreement, would allow applicants to obtain a pan-European patent that could be enforced via a single European patent court.

The EU Patent is distinct from existing European patents, which are centrally-examined and granted by the European Patent Office (EPO), and which are then validated in individual countries, where they become separate patents which must be separately maintained, and are only enforceable in the national courts. 

For the patentee, one of the major costs of bringing a European patent into force in any substantial number of countries across Europe is the requirement in many cases to provide a translation of at least the claims, and often also the description, into an official national language.  The London Agreement, which initially came into force in 14 countries on 1 May 2008 (Lithuania has since also joined), has somewhat eased the translation burden.  However, there are many countries in which full translations are still required, and enforcement (and revocation) proceedings must still be conducted on a country-by-country basis.

One of the main stumbling blocks to the creation of a unitary European patent, since the earliest efforts to do so back in the 1970's, has been language.  It is not unreasonable for a country whose citizens will be subject to the restraints imposed by the existence of patent rights to require that the patents in question be accessible to, and comprehensible by, those citizens.  However, there is one nation (no names, but it starts with "S" and ends in "pain") which obstinately continues to refuse to submit to the hegemony of some other nation's language, whether it be English, French and/or German.

RECENT PROGRESS TOWARDS THE EU PATENT

A meeting of the European Union's Competitiveness Council was held on 4 December 2009, at which Ministers reached agreement on a number of key elements of the proposed EU Patent.  These included features of a unified patent litigation system (which was considered a significant breakthrough), and a proposed mechanism for EU Patents to be examined and granted by the EPO, while the EU would accede to the European Patent Convention (EPC) to enable an EU Patent to be designated in a European patent application in the same manner as any individual country.

One thing that the Council expressly did not reach agreement about was "translation arrangements" which, it was determined, would be made the subject of separate regulations.

PROPOSED REGULATION ON TRANSLATION ARRANGEMENTS

On 1 July 2010 the European Commission released a proposal for a Council Regulation on the translation arrangements for the European Union Patent.  It is perhaps not a coincidence that this proposal was published on the first day of the Belgian EU presidency, and thus the day after the last day of the Spanish presidency.

The gist of the proposed regulation is as follows:
  1. EU Patents will be examined in one of the official languages of the EPO - English, French or German;
  2. the granted patent will be published in the language of examination, which will be the legally binding text;
  3. as under the current EPO grant procedure, the publication will include translations of the claims into the other two EPO official languages;
  4. no further translations into other languages will be required except in the case of a subsequent legal dispute concerning the EU patent, in which case the patentee may be required to provide further translations (eg for the other party and/or the court) at his or her own expense.
ACCOMPANYING MEASURES TO IMPROVE ACCESSIBILITY

An interesting element of the proposal is that implementation of the Regulation would be accompanied by measures including the release of a programme for providing machine translations of patent specifications into all official languages of EU member states.  The proposed translations are described as being "specialised" and "high quality". 

Quoting from the explanatory notes (6.2) to the proposed Regulation:

Necessary arrangements shall be made between the European Union and the EPO to make machine translations of patent applications and patent specifications available in all official languages of the European Union without additional costs for the applicants. Such translations should be available on demand, online and free of charge on publication of the patent application. They would be provided for purposes of patent information and would not have legal effect. ... The machine translation programme will aim to deliver high quality translations based on technical standards including electronic dictionaries with vocabulary linked to the international patent classification system.
High quality machine translations have already been developed by the EPO in a limited number of languages. The Commission is also supporting a project for machine translations ....  The creation of the EU patent would necessitate the acceleration of work and the roll-out of such a programme covering all EU languages.
Additionally, it is proposed that applicants from EU countries having a language other than English, French or German among their official languages, will be permitted to file applications in their own language.  The cost of translation into the language of proceedings of the EPO (to be chosen by the applicant from English, French or German) would be eligible for reimbursement.

All of which sounds terrific, however there have been too many glimmers of false hope for the pan-European patent, which have come to nothing for more than three decades, for us to get too excited just yet.

References

Proposal for a Council Regulation on the translation arrangements for the European Union patent (1 July 2010).
Press Release (1 July 2010).
Wikipedia article on the EU Patent.
EPO information on progress of the EU patent.
JFK and the 'Jelly Donut' incident (all we can say is that it is just as well he was not in Hamburg or Frankfurt).

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