Patent Translation in the European Union for Unitary Patent Package
Backed by nearly all European Union countries, Spain recently challenged the Court of Justice of the EU (CJEU) against the legal framework regarding unitary patent law. Although several matters were brought to attention, patent translation was one of the principal issues at hand.
Are the EU patent translation rules discriminatory?
In December 2012, the European Parliament reached an historic agreement in which “unitary patents will only be required to be translated into French, English, or German in order to be enforced”; this action effectively changed a system that had been in place since 1973. At this point in time, Spain and Italy refused to participate in this legislative process, and in this recent challenge the main complaint was similar. Specifically, the various states involved posited that “the translation requirements of the new regime are discriminatory, [and are] prejudicial to individuals whose language is not English, French, or German”.
In May 2015 in Case C-146/13 Spain v Parliament and Council and Case C-147/13 Spain v Council, the CJEU ruled against Spain. They maintained that “the language translation requirements are ‘appropriate and proportionate’ to the ‘legitimate objective’ being pursued, which is to help businesses to obtain Europe-wide patent protection in a way that is cost effective”. Following the ruling, Italy dropped its opposition to the unitary patent reforms.
EU Unitary Patent
The European patent protection system is governed by the European Patent Office (EPO), an international agreement which is not subject to EU law. However, the unitary patent is distinct in that it was “created by European Union regulation, only for EU states”. The argument behind the current translation agreements is for unitary patents to be simple and cost-effective, and as a whole easier and more legally secure. In addition, the court defended its position by pointing out that under the unitary patent regime, certain applicants are able to “claim compensation for the costs involved” in patent translation. Furthermore, they plan to use a “high quality machine translation system”, which as of now is provided as a partnership between EPO and Google called “Patent Translate”. However, this provision could prove to be highly problematic as quality is key when it comes to patent law translation – quality that might not be within the reach of any machine.
The alternative to the European Patent
It is worth noting that for dissenting countries such as Spain and Italy, there is an alternative to the European patent. “National patents can still be obtained in Europe and can be enforced in national courts”, and this method will not be affected by the new unitary patent agreement (Fish & Richardson). Moreover, these regulations are only effective for states that ratify the Unified Patent Court agreement. Interestingly enough, although the EPO covers the whole of the European continent, non-EU members such as Norway or Turkey cannot participate in the unitary patent. This means that there are a substantial number of European countries which cannot and will not partake in requiring that unitary patents be translated into French, English, or German (this does not apply to patents under Article 65 of the European Patent Convention). Whether or not an increasing number of EU members ratify and cooperate with the unitary patent remains to be seen.
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