New EU Proposal on the EU Community Patent: "Translation of Claims and Distribution of Revenue From Fees".
The EU Council just has published Document 6985/08 authored by the Slovenian EU Presidency and addressed to the Working Party on Intellectual Property (Patents). The title of that Document is "Community patent: translation of claims and distribution of revenue from fees". From the introductory portion thereof:
"[...] The Presidency wishes to relaunch efforts to create a Community patent, building on previous work with the goal of fulfilling the long-awaited expectations of patent users in Europe.
To reach a global agreement on the Community patent, the Presidency intends to focus the Council discussion on two major subjects:
the question of translation of patent claims and
the distribution of revenue from fees paid to maintain the Community patent in force. [...]"
Starting with two Common principles, namely Accessibility of the Community patent and Legal certainty of the Community patent, the Document unfolds two proposed alternatives:
"[...] Option 1: the 'flexible' Community patent.
The revised proposal for a Regulation on the Community patent (document 7119/04 PI 28) provides that when the patent is granted, the applicant must submit a translation of the claims in all official EU languages, unless a Member State waives the requirement for a translation into its official language(s). One option could be to provide flexibility in this respect and to allow the patent holder to submit only a limited number of translations. However, this would result in the Community patent only being enforceable against third parties in the territories of those Member States where a translation of the claims into the relevant official language has been supplied. If a translation were submitted at a later stage, the patent holder could only be awarded damages with effect from the date on which this translation was filed.
This option could greatly reduce the cost of the Community patent for businesses by instituting a 'flexible' Community patent. Holders would have the right to decide, on a patent-by-patent basis, the extent of desired geographical coverage of protection and the translation costs they are willing to incur.
In addition, costs could be further reduced by providing financial incentives for those Member States who do not require a translation in their official language(s) in order to increase the number of patents for which protection is sought in their territory. In practice, translation costs are in fact high at present and in some Member States the translations themselves are rarely consulted by businesses especially since they are available only after the patent is granted. [...]"
The other alternative reads as follows:
"[...] Option 2: the Community patent with translation performed by a central service
While the first option would allow a reduction in translation costs by limiting the number of languages for which translations need to be provided, a second option should seek to simplify translation procedures and reduce costs and complexity in a way which would make it affordable to have translations available in all official EU languages.
This could be achieved by establishing a central service to carry out translations for all required languages. Applicants would no longer have to deal with translations, which would be taken care of by the system. At the same time, they would have protection throughout the Community without having to take decisions on the extent of geographical coverage. The central service would make use of existing technical expertise and work already performed in automated technical translation, such as that at the European Patent Office (EPO). The system developed there currently functions with certain language pairs and would be extended to include all official EU languages before the Community patent comes into operation. Some additional human support may, however, be necessary for certain language pairs during a transitional period.
An automated translation system would involve the creation of databases of electronic dictionaries of technical terms directly linked to the International Patent Classification system. This would ensure a highly precise translation of technical vocabulary, avoiding ambiguities where the same word has a different meaning according to the field of technology. The creation of these databases could benefit the European patent system as a whole and enhance the dissemination of patent information in general. Not only would they improve the provision of information to the public at large in all official EU languages, but they could also be used by national offices and the EPO for searching prior art in different languages.
Automated translation would be available to any interested party by a simple click via the website of the central service concerned. The use of a central service combined with the electronic dictionaries would ensure coherence of translations and use of terminology and contribute to their informative value for third parties. Translations would be available at an early stage from the moment of the publication of the patent application, whereas one of the reasons why traditional translations of claims are rarely consulted is that they are available very late, only months after the patent has been granted. Furthermore, an automated translation system would make it possible to process not only translations of the claims but also other parts of the patent, or of the patent in its entirety, as well as of the supporting documentation at the request of interested parties. [...]"
I surely would prefer option 1 over option 2 because I am not much inclined to buy that during any foreseeable future a highly automated translation system could be made fit enough to adequately cope with the relative complex language of patent documents. Machine translations for patent documents, in particular from Japanese to English, are well known since years, and all who have made use of them know that having a bumpy and/or inaccurate translation from such foreign language might, under the given circumstances, be better than nothing but does not provide a full substitute for a human-made translation by some expert. What is needed is to set English as a truly pan-European relay language for all business and technical matters, not limited to patent matters. It should be demanded each and every European having, in a few centuries, sufficient command of English (at least) as a second language. The number of language pairs for which translation is needed would simply be unbearable otherwise. Option 1 as outlined above could advantageously be implemented in a compatible way with such a second-language culture.
According to the recent Document, a second question which requires consideration is that of the distribution of revenue received from the renewal fees for the Community Patent. The Slovenian EU Presidency now appears to be willing to stick to some earlier proposal studied by the Competitiveness Council in the context of adoption of the common political approach on the Community Patent on 3 March 2003:
The renewal fees should be equivalent to the fees paid on an average European Patent, i.e. one which covers about 8 Member States. In this way, the renewal fees for a Community Patent offering protection over all the EU territory would be lower than for an average current European Patent.
The fees would be directly payable to the European Patent Office (EPO), which would be responsible for granting the Community Patent. The EPO would keep 50% of renewal fees to cover the costs it incurs in processing the Community Patent.
The remaining 50% of renewal fees would be distributed to National Patent Offices (NPOs) of Member States. A distribution key would determine the allocation of these fees.
In the common political approach of 2003, it was agreed that the distribution key should be based on a basket of fair, equitable and relevant criteria, which should reflect patent activities and the size of the market. They should also apply a balancing factor to be applied where Member States currently have a disproportionately low level of patent activities. In the light of this assumption, the Slovenian EU Presidency now proposes the following procedure:
The Council should agree, as part of the package concerning the Community Patent, on the relevant criteria for the level of renewal fees and for the allocation of the 50% share being distributed among NPOs.
A Select Committee comprising the European Community and all EU Member States would be established. This committee shall, once the Community patent enters into force, implement these criteria and fix both the level of the renewal fees and the precise distribution key for their allocation.
The Select Committee shall periodically review its decisions, taking into account economic development and changes in patenting activity.
According to the Document, the distribution of fees should be based on an appropriate mix of different economic criteria such as population and the evolution of patent activity in Member States. Some of these elements were already included as criteria when the Luxembourg Agreement relating to Community Patents was adopted in 1989. Although the current partition of fees and level of patent activity has to be taken as a starting point, the distribution key should take into account the fact that patent activity in those Member States that currently have the lowest levels is expected to increase over time. Moreover, the current distribution of renewal fees in Member States reflects the limited geographical coverage of patents, given that the bulk of European patents cover a limited number of Member States. Considering that the future Community patent will, in principle, cover the entire EU territory, the distribution of fees should be balanced towards Member States which currently have the lowest levels of validations. In addition to this balancing factor, these criteria could include variables concerning the stimulation and promotion of innovation.
It looks as if the EU Community Patent is creeping in, slowly but steadily. As it appears now, the fate of all such proposals will depend of the fortune of the French EU Presidency coning in the second half of 2008.
Translations are indeed a Problem in the EU. My modest proposal would be to: set a 2+1 or 3+1 languages rule, wherein: - the patent should be properly translated in 2 or 3 official languages like today at the EPO *, - a complete version in a language of choice (the applicant's own language for instance)
- to complete those at least 3 (**) versions by automatic translations for the other EU languages.
- In case of litigation, let the defendant and the plaintiff each indicate: - a preferred language - a discarded language.
The litigation could not take place in any of the discarded language, and would take place in the remaining most preferred one, with priority to the patentee if 2 languages are tied.
Advantage: reasonable coasts, and two Spanish or Flemish companies would still be able to litigate in their own language.
The central EU litigation court should be able to do it, be it with its own resources for the most cases likely ending in one of the official languages, by leaning on the resources of the EPO for some native speaking technical experts in the majority of the other cases, and by hiring external consultants in the most exceptional cases where the EPO can not supply.
* : I am open about the description being translated in all official languages, or only in a single one.
**: 3 is a minimum. The point is to have at least 3 reliable versions of the patent, for allowing the language bargaining and putting patentee and plaintiffs on a more or less fair footing. I am open to let it be 3 official + 1 optional applicant native languages, eventually more official languages. It is a matter of costs, but also of efficiency of the litigation court. The EPO seems working well with 3. It is different of the way the European court of Luxembourg operates, because the public need to be aware of the patent wording beforehand. I wouldn't like to be dependent of the whim of a translator the day of the trial. As a consequence you are more limited in the number of language: you cannot put a big economic burden on the patents which won't be litigated.
About English as lingua franca: Everything in English for everybody - wouldn't be fair for the non English native speakers in the next 20 years, if ever. - is not what the EU is about, there is more in this political project than only corporate cost cutting.
# posted by born on the continent : 18 May, 2008 13:11