Ignorance of patents is no excuse!
France to Ratify London Agreement on Patent Language notes that France is about to ratify the evil London Agreement.
Currently, if a patentee obtains a European patent, he has to pay to have it translated into an official language of each country in which the patentee wants patent protection. Thus, at least potential patent infringers can be do research and find out what potential patent infringement suits they might someday get hit with.
But, poor patentees--! It costs a lot of money to do all those translations. Getting an anti-competitive, government-granted monopoly is just too darned expensive! The solution? The London Agreement, which will basically eliminate the requirement to translate the patent for it to be enforceable. Thus, a European patent filed in German would affect English-speaking companies in Britain. You might be running a business in the UK and unwittingly be violating a patent that is not even in the English language.
One IP blog is drooling over this: they "look[] forward to the long-awaited day when applicants will finally be able to get a European patent with decent coverage without the need to spend huge amounts of money on translations". But as one of the commentors on the thread notes, "What about the day when applicants who wish to do an effective novelty search, or people who wish to know whether their activities are infringing an EPO patent valid in the UK, are unable to do so without going to the trouble and expense of getting complex legal documents translated into English?"
Comments (7)
Bill Heinze
Touché, mon ami. Touché
Published: August 24, 2007 5:11 PM
Robert M.
darn those pesky foreign languages...doesnt everyone speak english?
Published: August 27, 2007 2:43 PM
connaisseur
Completely wrong, my dear.
Firstly, the London Agreement will increase the share of EN applications to nearly 100%. There will be more applications from other continents in EN, and European applicants will always want an EN version, e.g. because Scandin. countries ask for EN.
Secondly, the Art. 65 translations are not searchable, because they are filed too late and in paper format.
Thirdly, claims and abstracts are always available in EN. To find prior art or conflicting patent you typically also use language independent information such as IPC class.
So your analysis is completely wrong.
Published: August 28, 2007 8:04 AM
Stephan Kinsella
connaisseur:
This is not the point. It may be true that UK companies will be hurt least by this. BUt still, there will be some German-language or French-language European patents that are in force in the UK without a translation. And certainly there will be English-language European patents in force in Germany, France, and many other non-English-speaking countries. The injustice is still there, and will occur.
Irrelevant. Under the new regime, if a UK company finds a German- or French-language European patent by searching the translated claims or abstract, it still has a foreign-language document that it needs to closely inspect in order to determine the risk of infringement. In almost all cases, reading the claims or abstract alone is insufficient. So let's say I find 10 or 20 or 100 foreign-language patents I want to review. None of them have the specification in English. So I either take a wild guess based on the often incomprehensible, uninformative claim language, without the benefit of reviewing the specification; or I pay $5k or more per application for a translation.
Of course, the entire specification should be available for searching in the local langauge, as it is here in the US. That it is not now is a travesty already. And being added to that travesty is the situation I outline above: where you find a patent but are unable to read the specification. This adds enormous cost and uncertainty and risk for companies.
Obviously not. The London Agreement is clearly unjust, just as I said, for exactly the reasons I adumbrated.
Published: August 28, 2007 9:53 AM
connaisseur
Please give me a single example of a European Patent which German as the Language of the Proceedings before the EPO where you have an EN Art. 65 translation and a FR translation in electronic text form available to the public.
I'm not speaking of priority or translated abstracts or titles, but of the translated description of the EP-B.
Then please tell me when the application was filed and when the translation was available at what cost.
Published: August 29, 2007 7:52 AM
viccol
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Published: September 1, 2007 2:25 AM
Daniel
You make some fair points, but it is not quite as bad as you say.
Because of my job I have to review lots of patent documents for infringement clearance purporses.
In many cases simply looking at the claims and the diagrams is enough to determine that the patent is completely irrelevant. Especially because in Europe, unlike the US, claims must include reference numerals.
When it is important to look at the description, e.g. for a German EP patent which is relevant and has close or unclear claims, then often an equivalent has been filed in the US and it is simple to download it.
If there is no US version, then there is the English language abstract available for free on espacenet and espacenet can also gives a computer generated English translation - not perfect, but enough in most cases to give an idea.
So we are talking about the very occasional case were this is not enough.
Under the current system, if you know the right forms and how to fill them in, you can request the UK Patent Office to send an English translation in exchange for 5 pounds (plus I assume postage or they might only send to a UK address). It takes several weeks. {not good, but that is how they have decided to do it; in contrast the Spanish and German patent offices make German/Spanish translation available free online).
The new situation under the London Agreement will be that a translation is needed - but as I said this is usually only in a few cases.
Another point is that currently it is necessary to advise on pending EP applications (e.g. in German) for which no Abstract and no claims are available in English. Difficult. So, even without the London Agreement, this problem still exists.
Then of course many companies want infringement clearance advice for Europe as a whole; but we can't make French, German, Greek applicants file their national (rather than European) patents in English just so it is easily searchable. The point is that for Europe there will never be the more ideal situation in the US were much prior art and all in force patents are searchable in English.
So, in summary the London Agreement, will make it harder to give infringement clearance advice in a few cases and a few technical fields but(for English speakers at least) make no difference if you need an answer now rather than in a months time. Not great, but hardly 'evil' and unless you start from the premise that all or the majority of patents are 'a bad thing' the advantages outweigh the disadvantages
Published: September 5, 2007 6:09 AM