Lost in translation- the European Patent

Patents protect an innovative technical or mechanical process that has been developed. A classic example is the Dyson vacuum cleaner, which when it was introduced in the 1990s, was highly innovative in the way it worked. To protect the innovation, you must register the patent.

Pressure has mounted on the EU member states for a single process for registration of patents across the EU.

A year ago the principles for European patents for the whole of the EU were agreed after over a decade of deliberation. Well that must be progress, you’d think, but there are still no proposals for implementation.

We have a Community Trade Mark. You make a single application - to the snappily named “Office for the Harmonization in the Internal Market” which is part of the European Commission. You can apply in any of the principal languages of the EU Member States. Once granted, it’s granted in all of the countries of the EU.

It must make sense to have a similar mechanism for patents – after all, just like the law of trade marks, the law of patents is pretty much the same throughout all the member states of the EU.

So why no European Patent?

The official answer is that it’s all down to patent translation costs. Last month the Council of Ministers failed (yet again) to agree what languages can be used to file a European Patent and how the patent translation costs would be met by applicants who wish to file in another language.

The official languages of the European Patent Office are French, German and English, but the Spanish and Italians are unhappy about that. Other countries are concerned about the costs of translation. Patents are lengthy and very technical documents – much more complicated than the list of goods and services required to file a trade mark.

There are proposals for compromise – to make patent translation costs less onerous on applicants outside French German and English speaking nations, and to offer immunity from liability for an “innocent” infringer who doesn’t speak the language the patent is filed, but it’s hard to believe that they will overcome the problem.

This is because there’s already a whole heap of patent disputes about the meaning of the words in patent claims, and that’s just where the competing patents are in the same language!!

So, if we ever do get a European Patent, the patent litigators will be gearing up for battle- as there’s bound to be much more scope for uncertainty and dispute because meanings will get lost in translation.


Written by Jim Carter, a Director in the Nelsons Commerce and Technology group. To find out more about our Commerce & Technology group, click here.