With the UP/UPC now likely to start by the end of 2017, we looked at the translation regime for the UP, compared to the current system for EP filings
Despite the decision to leave the European Union, ratification of the Unified Patent Court (UPC)/Unitary Patent (UP) Agreement by the UK is now almost complete, Germany is expected to ratify later in the year, and the new patent system is expected to come into effect toward the end of 2017 or early in 2018. This brings into focus the arrangements for translation. Avoiding the perceived expense of providing translations has been cited as one of the positive features of the UP, in comparison with the current requirements for a bundle of conventional European Patents (EP), which are subject to separate national validation and separate language regimes in the member states of the European Patent Convention (EPC) for which the patent proprietor chooses protection.
Currently, Contracting States of the EPC that are part of the voluntary “London Agreement” and have an official language in common with the official languages of the European Patent Office (EPO) i.e. German, French or English, do not require translation of European Patents. Other Contracting States can choose one of the official languages of the EPO as the one into which patents must be translated for validation in their country, while having the right to require a translation of only the patent claims in their national language. They may also require that in the case of a dispute, the patent proprietor must provide a translation of the entire text. France, Germany, Ireland, Liechtenstein, Luxembourg, Monaco, Switzerland and the United Kingdom currently do not require any translation, while Albania, Croatia, Denmark, Finland, Hungary, Iceland, Netherlands, Norway and Sweden require a full translation of the patent into English. 13 countries require translations of the claims in their national language. The following States are not party to the London Agreement and therefore require a full translation of the patent text: Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, Estonia, Greece, Italy, Malta, Poland, Portugal, Romania, San Marino, Serbia, Slovakia, Spain and Turkey. A useful table of London Agreement states can be consulted here on Wikipedia. Translation requirements after grant are shown here at the EPO
The Unitary Patent will give protection in 25 EU states. The procedure up to grant will be the same as currently for the EP, and after grant Unitary Patent protection can be chosen. Validation in individual countries will not be necessary, and registration will be centralised at the EPO.
During a transitional period of up to 12 years, unitary patents that were granted in French or German will need to be translated into English, and the ones granted in English will have to be translated into any other official language of the European Union.
After the transitional period no translation will be required, apart from translation of the claims into the two other languages of the EPO. It is intended that the EPO/Google machine translation (MT) system will be sufficiently reliable to allow human translations to be dispensed with altogether, except where needed in litigation. At the present time, the MT is quite good between major languages for the purposes of getting an idea of what the invention is about, or whether it is of interest, and as a preliminary to a human translation. The translation page of the EPO’s public patent database espacenet itself specifically states: “This translation is machine-generated. It cannot be guaranteed that it is intelligible, accurate, complete, reliable or fit for specific purposes. Critical decisions, such as commercially relevant or financial decisions, should not be based on machine-translation output”. So not quite there yet, but with the speed of development of neural machine translation, who knows?
Depending on the patent subject-matter, language choices may be affected as a result of the locations and language regime of the Unified Patent Court, which will enforce the UP system. Just to give a flavour of this, here is a quote from IP specialists Dennemayer:
“If the language of the proceedings is English and the invention relates to the field of mechanical engineering, i.e. IPC classification F, we strongly recommend a German translation to be prepared as potential stand-alone nullity patent actions would be litigated in Munich, and the court might request a German translation. [ ] If the language of the proceedings is English and the invention relates to the field of chemistry, including pharmaceuticals (IPC class C), or human necessities (IPC class A), potential nullity actions would be conducted in London.” So in this situation, strategic considerations regarding possible future litigation may come into play.
It has alternatively been suggested that if the text is in English, the language of translation should be the cheapest EU language for which translation can be obtained!
As far as most language service providers are concerned, for those countries operating the London Agreement there will probably not be a significant effect overall. However for those dealing with translation into Italian, there could be a change in translation volumes, as Italy was previously not in the London Agreement and is set to join the UP. This would depend on the strategic choice of the language of translation by the patent proprietor.
A useful page of FAQ's on the Unitary Patent is given here by IP specialists Fish & Richardson.
All errors and omissions are mine. This is a preliminary exploration of the topic - please do not rely on it!.
The map is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license. Author: L.tak