11 October 2010

EU Committee Gives Political Orientation With Regard to Belgian Presidency's Proposal for EU Patent Language Regime (updated)

Blessing Madonna, stained glass window in
Strasbourg Cathedral featuring the twelve EU stars.

As reported earlier, the Belgian EU Presidency put a non-paper on the table at the informal Competitiveness Council of 29 September 2010 to seeks a break-trough in the negotiations for the EU patent and the unified European Patent Court (EEUPC). Therein it has been suggested that English French and German would remain the official languages for filing EU patents, while English would be the only language into which patents are translated, however, only for a transitional period until the performances of translation machines have reached a sufficient level.

The EU Competitiveness Council will meet today and tomorrow in Luxembourg to, inter alia, discuss the EU Commission's proposal on translation arrangements.

Now it has been reported on Document 14377/10 of the Committee of Permanent Representatives' meeting of 6 October 2010 related to the compromise suggested by the Belgian EU Presidency. The document tells us that at the informal Council of 29 September 2010 "almost all delegations expressed the need of finding a solution for the translation arrangements for the EU patent in short term, preferably during the Belgian presidency" and that "a large majority of the delegations made clear that this solution would need to respect certain red lines, namely that significant additional costs resulting from additional translations and legal insecurity resulting from giving legal effect to translations would not be accepted.

Document 14377/10 aims at giving a "political orientation" by the Permanent Representatives Committee on the compromise text by the Belgian Presidency in that

the Council is invited to agree on the elements for a political orientation concerning the draft Council Regulation on the translation arrangements for the European Union patent as set out in the Annex to this note.

According to the Annex of Document 14377/10, the key measures needed to achieve substantial simplification and significant cost reduction as compared to the present EPO language regime (and the proposal of the EU Commission) are:

Machine translations: In order to improve access to technical information on patents in local languages for all users of the patent system in Europe, the timely availability and high quality of machine translations into all EU languages is an indispensable element of the translation arrangements of the European Union patent. In order to achieve this, the Commission shall establish a cooperation programme with the EPO in order to ensure the timely availability of machine translations. The Commission shall provide all possible support, in particular financial support for the development and functioning of the system of machine translations at the EPO. It should be included in the draft Regulation on the translation arrangements for the European Union patent that the establishment and the functioning of the machine translation system should be subsidised from the EU budget.

Compensation of costs: In order to facilitate access to the EU patent for applicants from EU Member States that have a language other than English, French or German among their official languages, applicants shall continue to have the possibility to file applications in their own language. The costs of the translation into the language of proceedings of the EPO will be eligible for additional compensation, beyond what is currently already in place for European patents, including financial and technical assistance for preparing these translations. These measures should help applicants to apply for patents at the EPO with equal opportunities by compensating for the costs of translations into the language of procedure from the very beginning of the procedure at the EPO. The necessary arrangements shall be established by the Member States through the Select Committee of the Administrative Council of the EPO.

A language regime following these central claims would certainly be attractive especially for those countries that currently oppose the EU Commission's proposal. However, as always, the devil is in the details. Under the headline "transitional arrangements" the Annex of Document 14377/10 clarifies that

During a transitional period, for EU patents which are not granted in the language customary in the field of international technological research and publications a translation into this language has to be provided by the applicant. Such translations would be important as long as high quality machine translations are not available from all of the three EPO languages into all other EU languages. This translation would be included in the publication of the EU patent specification. It would be for information purposes only and would have no legal effect.

The Council is of the view that even though such an additional translation would result in supplementary costs for certain proprietors of EU patents, these translations would be of interest for those companies and third parties who work only in the language customary in the field of international technological research and publications, as long as the quality of machine translations from all three EPO languages into all other EU languages is not fit for patent information purposes.
That is, as long as high-quality of machine translations from all three EPO languages into all other EU languages are not available, applicants may file a EU patent application in their language and would then have to provide a - legally not binding - translation into the "language customary in the field of international technological research and publications", whatever language that might be.

At this point, however, it remains questionable whether or not a translation provided by the applicant is of any worth for the public and competitors at all. In more pronounced words, the IPJur blog comments:  

No legal effect? Then surely applicants might be tempted to just include some error-prone machine translation into the description. But, wasn't this measure thought to be valid as long as high quality machine translations are not available from all of the three EPO languages into all other EU languages? Strange games, here.

Another problem might be the demanded "timely availability" of high-quality machine translation. I don't think that the opposing EU members (e.g. Spain and Italy) would agree on such a compromise without any concrete (and rather short) time horizon as to when the machine translations are available, which would have to be provided by the EPO.

According to the EU Council's background note on machine translations of 3 September 2010, the EPO's machine translation programme is currently, after six years of work, capable of providing "reasonable-quality translations" from and to English to and from German, French, Spanish, and Italian, respectively. According to IPR helpdesk, tailor-made electronic machine translation dictionaries may be purchased on the EPO website also for English/Portuguese/English.

UPDATE: In a yesterday's article on EurAktiv the Belgian compromise proposal is described as "a small step forward in comparison to the previous [Commission's] proposal, but critics still consider it insufficient". Apparently, this issue is addressed at yesterday's and today's EU Competitiveness Council meeting in Luxembourg, whereas "it is unlikely to strike a deal", since two more meetings are scheduled before the end of the year in order to reach a compromise:

The system could indeed establish a competitive advantage for British, German and French companies, by allowing them to file applications in their own language that would become instantly legally-binding in all other EU member states. Moreover, they would also benefit from translations into their language of patents initially filed in another tongue. [...] This would trigger extra costs, especially when the filed language is not English. Patents in this language are indeed more easily understandable due to the widespread use of English among the scientific community, which is not the case for German and French.

The crucial question remains: How can Spain and Italy be convinced without losing the support of others, especially France and Germany?. At the negotiations front, the situation is described like this:

However, the compromise proposed by the Belgians does not touch upon the heart of the issue, which is guaranteeing the status of a legally-binding language to German and French in addition to English.
This is what Rome and Madrid are mainly fighting against. As an alternative, they are requesting a monolingual system based on English or the inclusion of their own languages among the official tongues of the EU patent.

The latter proposal would trigger similar requests from other countries and it is thus less likely to find unanimity. Although the monolingual system is backed by many member states, it is profoundly opposed by two heavyweights – Germany and France.

"The route to a compromise is very narrow," explained a Belgian delegate, stressing that 25 countries had showed their backing for the proposal made by the Commission based on English, French and German.

Should the Begian compromise fail, a possible last resort appears to be an enhanced co-operation, i.e. an EU legislative agreement among a small group of EU members. Although such a mechanism has been permitted already in the Amsterdam Treaty of 1999, it has not yet been used since it is considered somewhat against the EU philosophy. In fact, the Schengen agreement and the EURO, which also are in force only in certain member states, have not been implemented by an enhaced co-operation but by other legal mechanisms. But there is also an obstacle to this option. While only nine member states have to agree to take part in the enhanced co-operation, it needs to be authorised by a qualified majority of member states, whereas it is unknown if that can be achieved. That is, one cannot be overly enthusiastic about the prospect of success of this option.