Yet Another Approach To Reach EU Patent Compromise

To this end, the Belgian EU Presidency has launched another move to reach a final compromise:  The EU Council is invited to agree on certain elements for a political orientation concerning the draft Council Regulation on the translation arrangements for the European Union patent as set out in an Annex to the note conveyed with cited Document 15395/10:

I. First set of elements for compromise proposed to the Council on 11 October 2011:

1. Improvement of the access to the European system of patents:

1.1. Machine translations In order to improve access to technical information on patents in local languages for all users of the patent system in Europe, the timely availability and high quality of machine translations from all three working languages of the EPO into all EU languages is an indispensable element of the translation arrangements of the European Union patent. [...]

1.2. Compensation of costs In order to facilitate access to the EU patent for applicants from EU Member States that have a language other than one of the procedural language of the EPO among their official languages, applicants shall have the possibility to file applications in their own language. [...]

2. Single procedures for EU patents and other European patents until grant: There should be no distinct procedure for an EU patent and other European patents until grant. Until grant applicants should have the choice between an EU patent covering the entire territory of the EU or a European patent covering only a limited number of territories. It would have to be clarified in an appropriate way in the text of the Proposal for a Regulation on the translation arrangements for the EU Patent that there is only one route for EU patents and other European patents and that from the filing up to the grant of the patent, the rules provided by the European Patent Convention would apply. The translation arrangements of the EU patent should apply only once the applicant chooses at grant to obtain an EU patent.

3. Provisional protection As a consequence of a single procedure until grant, provisional protection of patent applications shall be governed by the existing provisions of the European Patent Convention (Articles 67 and 70) for European patents. This issue would have to be clarified in an appropriate way in the Proposal for a Regulation on the translation arrangements for the EU Patent.

4. Additional arrangements: As long as high quality machine translations are not available, for EU patents which are not granted in English a translation into this language has to be provided by the applicant. This translation would be included in the publication of the EU patent specifications. They would be for information purposes only. [...]

II. Second set of elements for compromise to be proposed to the Council on 10 November 2010:

5. Supplementary translation arrangements: For EU patents granted in English a translation into one other EU official language, at the choice of the patent holder, would have to be provided. This translation would be included in the publication of the EU patent specification by the EPO to give this translation the appropriate visibility. The translation would be for information purposes only. This additional translation into another EU official language of EU patents granted in English would be required as long as high quality machine translations are not available from all three EPO languages into all other EU languages. [...]

6. Compensation of costs for the additional translation: Applicants who have filed their application in a language which is not one of the procedural languages of the EPO can re-utilize their application to provide the translation of their patent into the second language as prescribed in point 5. Since they receive a compensation for the translation of the application into one of the procedural languages of the EPO, they would thus be able to provide the translation of the patent at minimal costs. They would only need to adapt the original application to the final version of the text in which the patent is granted. A Recital could be added to clarify this further.

7. Legal certainty and protection of bona fide third parties: Some delegations have expressed a concern regarding the protection of their companies, in particular SME’s who have acted in good faith in the absence of a translation into their own national language. It concerns the interests of third parties, in particular SME’s, when the EU patent is not translated into their own language. They fear that in the absence of such a translation their companies may inadvertently infringe the patent and may be held liable for damages although they have acted in good faith. It is already foreseen in Article 4 of the proposed Regulation on the Translation Arrangements for the EU patent that in case of a legal dispute the patent holder has to provide the alleged infringer at his request with a full translation into his national language. It could be foreseen and clarified in a recital that in case of a legal dispute concerning a claim for damages the competent court could consider that the alleged infringer, before having been provided with a translation in his own language, may have acted in good faith and may had no reason to know that he was infringing the patent. The competent court would assess this depending on the circumstances of the individual case and would for instance take into account whether the alleged infringer is a multinational company or a SME operating only at local level. Such a safeguard clause would not be limited to the transitional period but would be permanent.

8. Translation arrangements for the provisional protection: As a consequence of the application of the existing provisions of the European Patent Convention (Articles 67 and 70) to the provisional protection of patent applications published, Member States will be able to continue to prescribe that provisional protection shall not be effective in their territory until such time as the translation of the claims into their or one of their official languages is provided. A Recital could be added in the text of the Regulation to clarify this issue.

9. Absence of any precedent for EU instruments dealing with language and translation issues: As a consequence of the single procedure for EU patents and other European patents until grant foreseen in point 2, the normal rules of procedure of the EPC, including the procedural languages, would apply until grant of the EU patent. The Regulation on the translation arrangements for the EU patent would come into play only after grant. Consequently, the limited language regime which follows from the application of the EPC but which is not enshrined in the EU Regulation can not be considered as creating a precedent for a limited language regime in any future EU legal instrument. To make this clear, a Recital could be added in the text of the Regulation.

Hence, the general gist behind all this appears to be a way of thinking to the effect that machine translation will one day become the magic bullet to solve all of the translation problems in the field of EU patents. To this end, applicants will be required to provide certain translations created, well, by human translators - otherwise this transitional arrangements would make no sense. However, present compromise proposal reassures that those additional translations shall not be legally binding. Will applicants be persuaded to spend a lot of money on this or will they start experimenting on their own with machine translations?

The answer might not be that trivial as it looks: At a first glance, there might be no incentive to spend any money for humans creating some non-binding translations. However, if a certain European patent application is filed by a respected law form of patent attorneys, will they dare to file a machine translation of substandard quality under their own brand?

If this compromise gets approved, there will be no precise deadline as to when this trasitional regime shall end. Maybe that this sort of language regime then might last for a quite long time.

(Photo: (C) 2010 by Belgian EU Presidency)