After decades of fitful effort, the European Patent with Unitary Effect (“EPUE” or “Unitary Patent”) still looks set to become reality—eventually at least. There have been complicating developments over the past year in the UK and Germany that threaten to prolong the start of the Unitary Patent a while longer.
Legal challenges brought by Italy and Spain have been defeated, and Italy joined earlier this year. That leaves Spain and Croatia as holdouts, along with Poland, which signed on initially, but has indicated that it will not ratify the agreement on the Unified Patent Court (UPC), effectively withdrawing participation.
When Matt Sekac, Senior Director at Welocalize and Park IP, Welocalize’s legal language services provider, first wrote on this subject in 2016, there were still details to be worked out and final ratifications were still pending, but the indications were that the Unitary Patent could “open for business” as early as 2017. Now 2017 is almost over and even a 2018 kickoff for the Unitary Patent remains uncertain. In this blog post, Matt takes a close look at the Unitary Patent’s language requirements and their impact on life sciences companies.
Language Requirements: A Deep Dive
Patent protection is a core business interest for R&D-driven life science companies; that these organizations tend to pursue the broadest scope of patent coverage is widely recognized. Life sciences patent applications tend to contain the highest volume of text for translation. As such, the Unitary Patent’s language requirements are worth a closer look.
The issue of language was a major obstacle to the Unitary Patent and a central argument in Spain’s failed challenge before the EU’s Court of Justice. Spain argued that “the contested regulation establishes a language arrangement which is prejudicial to individuals whose language is not one of the official languages of the EPO,” because they may be subject to sanction and damages for infringing patents that are not available in their country’s official language.
The EPO’s website implicitly acknowledges this concern: “the current requirement for translations… will be a thing of the past. But inventors will still be able to obtain patent texts in their own languages” using the EPO’s machine translation tool, “Patent Translate.” The importance of this technology is expressed in the text of the Unitary Patent regulations (emphasis added):
In order to promote the availability of patent information and the dissemination of technological knowledge, machine translations … into all official languages of the Union should be available as soon as possible … Machine translations are a key feature of European Union policy. Such machine translations should serve for information purposes only and should not have any legal effect.
There is an apparent tension between those last two sentences. High-quality machine translations are key to ensuring that economic actors have a reasonable means of accessing and understanding texts that confer rights on the community. But at the same time, machine translations should not have any legal effect—presumably because they cannot be relied upon to completely and accurately convey the complex and nuanced language of patents. Sure enough, machine translations generated by the EPO’s “Patent Translate” engine contain this disclaimer:
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.
Thus, economic operators whose language is not one of the EPO’s official languages will continue to have access to patent information and technical knowledge—but it will not necessarily be “intelligible, accurate, complete, reliable or fit for critical decisions.” Cast in that light, Spain’s objections look rather sympathetic.
The other side of the argument is that these concerns look much more problematic in theory than they actually are in practice. As the Court observed, “patents are generally administered by patent attorneys, who are familiar with other languages of the European Union.” Most organizations and individuals interacting with the patent system have functional knowledge of English, French or German. Moreover, only a small proportion of European patent applications are currently translated into any language outside of the official three. And to be fair, machine translation isn’t quite being sold as a panacea; the goal is to enable everyone to get an idea for which patents might be relevant to their activities and merit further investigation.
The prevailing view is that Spain’s concerns do not outweigh the legitimate interests served by the Unitary Patent, but they have not gone entirely ignored. “In order to protect economic operators who do not have a means of understanding…one of the official languages of the EPO,” the Council included provisions to ensure that “such operators, where they are suspected of infringement” will be able to obtain “a full translation” of the patent, and:
In the event of a dispute concerning a claim for damages, the court… should take into consideration the fact that, before having been provided with a translation in his own language, the alleged infringer may have acted in good faith and may have not known or had reasonable grounds to know that he was infringing the patent.
This suggests the possibility that the EPO’s machine translations might prove to be material after all. If a lack of means for understanding patent texts in English, French or German is a viable defense against infringement claims, and it cannot be shown that an alleged infringer had such means, then the only basis for knowledge of a patent’s contents would be the EPO’s machine translation. And if that machine translation contains errors material to the allegedly infringing activities, then damages might be off the table. The criteria for determining “good faith”—or the exact consequences of such determination—are unclear.
This scenario will surely be rare, but it might merit consideration when patent protection is of critical importance. As a translation provider, we obviously have a special interest in this aspect of the Unitary Patent, but these finer points may offer some broader insight into the consequences of a major new initiative, and the uncertainty those consequences might create.
Read more about the Unitary Patent’s impact on life sciences companies in the October issue of our Global Communicator.