Will There Ever Be Unanimity On An EU Patent?

The optimist branch: I remember well the presentation of Mr Gaster held on June 24, 2010, on invitation of GRUR and in the premises of the German Patent and Trade Mark Office here in Munich. When it came to discussing the EU (Community) Patent project then Mr Gaster appeared to be optimistic as ever and I remember that, in the Q&A round after he had finished his presentation, he admitted that he sees a probability that on the level of EU Ministers the language issue will not be solved later this year due to the stubborn resistance of one EU Member State, i.e. Spain. OK, up to today I have to admit that Mr Gaster was right with his prophecy so far. However, the second aspect of his staring into the crystal ball was that in December this year the Heads of State might, pushed by the Belgium Presidency, find - early in the morning hours of the very last day of an EU summit - some compromise, the Spanish Prime Minister being too exhausted and tired to continue fighting for the glory of his mother tongue. Maybe such compromise would also be sweetened by some financial or political bonus granted to Spain in exchange for agreeing to a compromise in the languages issue.

The pessimist branch: The present dispute of a majority in the EU Council ready to enter a compromise with Spain, and to some lesser degree, Italy,  might perhaps be not at all specifically about the language regime of some future EU Patent. In reality, it might be instead about a very fundamental problem of the EU in its entirety which, however, due to certain measures explained below, does not that much surface in other fields of EU activity. In 1957, Belgium, France, Italy, Luxembourg, the Netherlands, and West Germany had signed the Treaties of Rome, which extended some earlier cooperation within the European Coal and Steel Community (ECSC) and created the European Economic Community, (EEC) establishing a customs union and the European Atomic Energy Community (Euratom) for cooperation in developing nuclear energy. From these early roots the European Union as we know it today has emerged.

What was left out from the deliberations held in Rome 1957 was any concept concerning a lingua franca for a unified Europe. Well, it might be understood that in earlier times the language problem appeared to be manageable. The Diplomats were used to express themselves in French in those days, and for the other European business the languages issue was swept under the rug by installing a professional translations service created and maintained at the expense of the taxpayer. In the effect, Europe suffered from a severe birth defect - from the start it lacked a uniform general public formed on the basis of some broadly accepted lingua franca. In consequence, even as early as 1957, a politically interested citizen in, say, Germany, could not expect to be able to readily consume Italian or French TV, newspapers or books unless proving to be polyglot to an extraordinary degree. Now, in our days, we have a European Union exhibiting no less than twenty-three official and working languages: Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Irish, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovene, Spanish, and Swedish. Even a polyglot citizen has no chance to master them all. But exactly as in 1957, the technical business of the various EU institutions is enabled by a translator service which now runs under the title Directorate-General for Translation. With a permanent staff of around 1.750 linguists and 600 support staff, DG Translation is one of the largest translation services in the world. They are based in Brussels and Luxembourg, with small outposts in other EU countries.

Why might the language issue for a European Patent be unsolvable whereas it effectively was pragmatically solved for other sorts of EU business by installing DG Translation?

The answer is simple: The patent system is expected to collect substantially all the funds it needs from patent applicants and proprietors. Nobody would make such a fuss concerning the languages issue for the EU Patent if it could simply be rolled over to the DG Translation or any other institution funded by the taxpayer. But there appears no way to reach such kind of a solution in times of enormous state debts and tight budgets.

In this context it might well be argued that also growing up DG Translation by accepting twenty-three languages without fostering any lingua franca  in itself was a severe political error. However, it came in by creeping over decades, from extension to extension of the EEC / EU, and surely there is no political desire to open a pandora's box by putting the current EU languages regime into question.

In the effect, a grave problem of the basic constitution of the EU, the lack of a lingua franca, is currently only masked by spending a lot of money for DG Translation. It is, however, still unmasked in the field of the patent system because of patent applicants and proprietors do not show any readiness to pay huge sums of real money for masking a basic problem of the groundworks of the EU.

Of course, under today's terms of global trade and business, only a single one language can seriously be taken into consideration as lingua franca: English. What else? It is easy to learn (at least at beginner's level) and widely accepted. Maybe that the Spanish Government feels encouraged to fight for Spanish by contemplating the sheer number of people with Spanish as first or second language on the American continent. But that does not help much within this context here; Spanish speaking Central and South American  countries are not that important on a global scale, and Spanish is much harder to learn than English.

It should not be overlooked that in the Middle Ages on the territory of today's Germany there were numerous smaller states with different dialects or languages so that their speakers hardly could understand each other. Wikipedia tells us:

"When Martin Luther translated the Bible (the New Testament in 1522 and the Old Testament, published in parts and completed in 1534), he based his translation mainly on the bureaucratic standard language used in Saxony (sächsische Kanzleisprache), also known as Meißner-Deutsch (German from the city of Meissen). This language was based on Eastern Upper and Eastern Central German dialects and preserved much of the grammatical system of Middle High German (unlike the spoken German dialects in Central and Upper Germany, which already at that time began to lose the genitive case and the preterit). In the beginning, copies of the Bible had a long list for each region, which translated words unknown in the region into the regional dialect. Roman Catholics rejected Luther's translation in the beginning and tried to create their own Catholic standard (gemeines Deutsch) — which, however, only differed from "Protestant German" in some minor details. It took until the middle of the 18th century to create a standard that was widely accepted, thus ending the period of Early New High German.

Until about 1800, standard German was almost only a written language. At this time, people in urban northern Germany, who spoke dialects very different from Standard German, learned it almost like a foreign language and tried to pronounce it as closely to the spelling as possible. Prescriptive pronunciation guides used to consider northern German pronunciation to be the standard. However, the actual pronunciation of Standard German varies from region to region"

Any kind of closer co-operation or even unification on German territory like that in 1871 had only become feasible by Luther's creation of a German lingua franca, i.e. Standard German. Today and in view of Europe we may not expect to get such lingua franca from religous movements. It is now globalised business instead which might be the driver, i.e. resulting in pushing English.

Scandinavian countries appear to be somewhat ahead in this respect: Many people there have a substantial command of the English language. One reason might be that in those countries on local TV foreign content normally is not synchronised into Danish, Swedish, or Norwegian but only subtitles are provided. Consuming TV and/or motion pictures in a foreign language is a great and effective way to learn them.

This second alternative would mean the definitive end of the plans to create a EU Patent as we know them because there is absolutely no chance to rectify the birth defect of the EU and its predecessors, the lack of some lingua franca, in any foreseeable future.

Maybe or not politics will then try other paths - e.g. some smaller sub-group of EU Member States installing a closer co-operation in the field of the patent business.

(Photo: (C) www.dieeuros.eu)