The incredible growth of businesses and technological advancement has helped the world to interlink in a way that was not realised before. This has led every segment of the economy to go beyond the geographical boundaries, further increasing the demand for technology to be protected at both local and global platforms.

The demand has increased the number of patent applications filed, cutting across international boundaries. These international applications have emphasised patent translation among both patent authorities and patent practitioners. But the technicalities involved in patent translation have made it challenging for an ordinary organisation to apply for a diverse area of protection in multiple jurisdictions.

What is a patent translation?

In simple words, patent translation is a translation process of a patent document into another language as every jurisdiction has its own strict filing language requirements. The translation of technical words must be consistent as similar words may have different meanings and interpretations in different jurisdictions.

Due to the technicalities involved, it becomes essential that translations are done professionally, as a non-professional translation can lead to misinterpretation of the scope of the claim, ultimately ruining the purpose of patent filing.

Also, patent documents are akin to legal instruments and play an essential role in litigations, especially in cases where a patent is invalidated based on language differences from the prior arts.  

The statutory requirement for submitting translations

Different countries have different requirements that vary according to a country’s domestic laws. Under few jurisdictions like:

India: According to Rule 20 of the Indian Patent Rules, 2003, there is a mandatory requirement when the international application is not filed or has not been published in English. The Applicant has to file a verified English translation of that patent application with the Patent Office. Also, under Rule 21(4) (i), the time limit referred to in sub-rule (2) shall be thirty-one months from the priority date as referred to in Article 2(xi).

Europe: In Europe, any contracting state may seek to request the applicant to provide the European patent in one of its official languages if the European patent as granted, amended, or limited by the European Patent Office is not drawn up in one of its official languages under Article 65(1) of the European Patent Convention.

United States: USPTO also put forth the need for translation when the international application documents are not English. 35 U.S. Code § 371, which talks about the National stage Commencement, mandates English language translation of international application or documents failure to which results in the national phase application being abandoned.

Patent Cooperation Treaty (PCT) filing: PCT Rule 66.7 talks about copying and translating earlier applications whose priority is claimed. According to the rule, if the application whose priority is claimed in the international application is in a language other than the International Preliminary Examination authority’s language or one of its languages, that authority may, where the validity of the priority claim is relevant for the formulation of the opinion referred to in Article 33(1), invite the applicant to submit a translation in the said language or one of the said languages within two months from the date of the international application. The International Preliminary Examination report may be established as if priority has not been claimed if the translation is not provided within the statutory time limit.

Types of patent translation

There are usually two types of patent translation; one is the patent translation for filing, and the other is the patent translation for information. The difference between the two isn’t much, but one learns about the difference when choosing the right translation service. The significant difference lies between the two in the purpose they serve and the audience they encounter.

As the name portrays, a patent translated for filing serves as an official record for the patent application procedure. Patent translated for filing target audiences like legal professionals, patent officials, or patent licensees involved in the examination of the application. Documents translated for filing should be clear and concise and convey the inventions without technical misunderstanding.  

On the other hand, patent translations are used for the information are used in litigation. They are used as legal evidence in the court proceedings to argue whether something does or doesn’t constitute a patent. They can include translating documents arguing on the patent’s novelty or technological advancement. They can also be used to learn the contents of a patent that has already been filed.

Importance of patent translation

As discussed above, the statutory requirements impose an obligation on the applicant to disclose how the claimed subject matter can be put to work. Every jurisdiction has a preliminary requirement that claims should mention the subject matter of the invention.

In compliance with the statutory requirement, the translations should be done as precisely as possible and with utmost care so as not to deviate from the scope of subject matter in consideration. A poor translation can cause prejudice to an applicant’s right by rejecting a patent.

To enjoy the fruits of the patent, the applicant has to go through the lengthy and tedious process of patent translation. A nonprofessional transaction can have disastrous repercussions for the applicant and open the doors of litigation, leading to project delay, increased expenses, idea theft, competition, financial loss, or other legal issues.

For any patent translation, it is always advisable to take an expert’s help as the translation of a patent document requires the knowledge of the language in legal and technological expertise.

Loopholes in Patent Translation

A faulty patent translation could result in the loss of a patent. As a result, it is not uncommon for an IP service organisation or an inventor to feel compelled to choose a low-cost but high-quality translation service. Patent translation is a costly process because of its high importance. The cost of PCT National Stage Filings and EPC validations might be more than half the price of a translation. To avoid poor patent translation, anyone would choose a low-cost translation service. When it comes to translation services, quality and price go hand in hand. As a result, anytime there is a decrease in translator fees, there may be a decrease in quality as well.

Conclusion: Patent translation is one of the essential activities to be followed while applying for patent protection in multiple jurisdictions. There is no denying that due to its complex technical nature, it can be heavy on the pockets of the applicant. Still, by applying a few innovative strategies, one can outweigh the negative aspects of patent translation. Drafting a patent in English can be an intelligent move as huge markets like the United States, India, Canada, and almost all of Europe have English as a filing language, hence cutting your cost of translation and getting patent rights in multiple countries. Another money-saving strategy can be earning your patent translated into Arabic and covering the markets in the Gulf region with one translation or combining significant languages like English and Spanish and getting important worldwide protection. Patent translations are a statutory requirement that one must comply with to prevent innovation and stay competitive in this globalised world order. For patent protection over multiple jurisdictions, one must plan out a patent filing strategy and seek expert help. 

References: 

  1. https://www.epo.org/law-practice/legal-texts/html/epc/2020/e/ar65.html
  2. https://www.invntree.com/resources/patent-act-and-rules/rule-20
  3. https://www.globalpatentfiling.com/services/patent-translations
  4. https://www.lakshmisri.com/newsroom/archives/patent-translation-an-important-aspect-of-patent-protection/#

Disclaimer: The present article intends to provide general guidance on the subject, and you can also consult us in your specific case.

Author

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    Shlok Bansal has done a master's in political science from Delhi University and is currently in the third year of a B.A. LL.B course from Rajasthan University. He is directly engaged in writing articles and posts related to intellectual property law issues and actively engaging with NGOs. Aspire to be an IPR attorney.