Patent translations: the role of the translator in avoiding irreversible errors

A European patent can be invalid due to translation errors and this issue is so serious that the importance of a good translation is obvious. Throughout history, automatic translations have served to improve productivity, but they must be post-edited to avoid recurring errors. And this is where the translator’s role must provide added value.

Why is it so vital? Patents are territorial, so the specification of a patent must be translated into different languages, depending on the countries where the applicant wants to file it. The costs associated with translations are high, and for this reason attempts have been made to reduce them, both from a legislative point of view (with the London Agreement for European patents and the possible Unitary Patent), and from the point of view of productivity (using translation technologies). But these formulas are not without problems.

Evolution of patent translation: from paper to post-editing machine translations

In the 1980s and 1990s, translations in general, and patent translations in particular, were done by reading the original document and typing the translation into a word processor.

This meant low productivity, which was directly related to the speed of writing the translated text and the translator’s knowledge of both the language and the subject matter. If a dictionary had to be used many times, this increased the time spent on translation. Dictionaries were generally paper-based, which also consumed time for consultation and limited the availability of reference sources.To solve this low productivity, translators looked for alternatives to having to manually enter the translation text. One of these alternatives was the use of voice recognition software, such as Dragon NaturallySpeaking, launched in 1997. This was the first important leap in the use of technology in text translation, as it allowed for increased productivity.In 2012, the European Patent Office’s partnership with Google enabled the emergence of the first specialized machine translation service, called Patent Translate, which was free from day one and has been expanding its languages and quality.

With the advent of machine translations, translators found a tool to avoid having to translate the entire text, but to post-edit the machine translation. The possibility of consulting online dictionaries or consulting other translators in forums improved performance and quality.

In addition, the existence of computer-assisted translation programs, such as Trados Studio, makes it possible to create translation memories to avoid having to translate again previously translated sentences, and to combine them with glossaries and automatic translation providers, among other features. In this way, translation productivity today has multiplied compared to what could be achieved years ago.

Recurring problems in the automatic translation of patents

Although post-editing of machine translations of patents has been an improvement from the point of view of productivity and costs involved, it has a number of problems that the translator must carefully review during post-editing.

Firstly, an essential requirement of patents is that their terminology must be uniform throughout the description and claims, as the use of different terms to identify the same element causes a problem of lack of clarity.

For example, a machine translation may translate the English word “spring” into Spanish as “muelle”, “resorte” or “primavera”, or the English word “chip” into Spanish as “chip”, “astilla” or “patata frita”.

It is the translator’s task to check that the same term is always translated in the same way, and that the translation is appropriate to the context, always choosing the most accurate translation.

Another problem with machine translations is that they do not take into account that there is a separate terminology in the patent field, and may translate such important terms as “claims” in English into Spanish as “reclamaciones” and not as “reivindicaciones”.

Moreover, it also fails to take into account that terminology may vary between different countries. For example, in Spain “embodiment” is translated as “realización” or “modo de realización”, while in Mexico it is translated as “modalidad”.
All this implies that the translator must be the added value of the translation.

European patents, in your mother tongue or in an official language?

For a first application for a patent, the applicant may file:

• A patent or utility model in a specific country;
• A European patent; or
• An international PCT patent.

Under Spanish patent law, patents and utility models in Spain must be filed in Spanish, and also for PCT applications. For reasons of national security, the PCT application must be filed with the SPTO, which is a receiving office only for applications in Spanish, although it is possible to request permission to file with another receiving office in another language.

For European patents, they can be filed before the SPTO in any language, being necessary only a translation of the abstract into Spanish (150 words maximum).

Therefore, when a patent attorney is faced with drafting the specification for a European or PCT patent, first of all, he/she must decide in which language it is to be drafted.

If it is written in the mother tongue, such as Spanish, the advantage is that a person always expresses himself/herself better in his/her mother tongue than in any other language, but we run the risk of errors in the subsequent translation into the official language.

On the other hand, if we draft the European patent specification in an official language, there will not be this risk of errors in the translation, although it has the disadvantage that the quality of the drafting could be worse or less precise than in your mother tongue.

Risks of translation errors

Loss of priority right

When a European patent is filed in a non-official language, the authentic text of the application is in that language, and translation errors can be corrected during prosecution, but may not be correctable once granted, as will be described below.
However, if a translation of the original application is submitted directly in an official language, this translation is the original text, and possible translation errors cannot be corrected.
If there is an error in the translation that changes the subject matter of a claim, and this translation cannot be corrected, the priority right for that claim could be lost.

The trap of Art. 123(2) and 123(3) CPE

Article 123(2) of the European Patent Convention (EPC) indicates that a European patent application cannot be amended in a way that extends beyond the application as filed. In other words, during the examination of the application, any amendment must be justified as being contained in the original application.

If the application has been filed in a non-official language, any translation errors can be corrected during prosecution, as the authentic text is that of the language of the application.
Article 123(3) EPC states that a European patent (already granted) may not be amended in such a way that extends the protection it confers.

This means that any error in the translation of the independent claim(s) in the granted patent cannot be corrected, as it would be contrary to Article 123(3) EPC, and if that error caused the subject matter of the original application to be extended, contrary to Article 123(2) EPC, the granted patent could be invalidated simply on that ground.

This occurred, for example, in the opposition to patent EP2412517B1.

This patent application was filed in Spanish and its prosecution was in English.

Claim 1 included, inter alia, the Spanish term “velo”, which was translated into English as “web”.

The opponent, inter alia, argued that “web” was a mistranslation of “velo” and therefore Article 123(2) EPC had been infringed.

In response to the opposition, the patentee attempted to change the translation from “web” to “veil”, but such a change infringed Article 123(3) EPC, and the patent was revoked.

Another example can be found in patent EP1397304B1, originally filed in Finnish and translated into English.

The original application included the Finnish equivalent of “circular”, but was translated into English as “round”.

Although the patentee tried to convince the Opposition and Appeal Division that the two terms were synonymous, the patent was revoked because it was held that the term “round” does not have the same meaning as “circular”, contrary to Article 123(2) EPC, and for the same reason, because of Article 123(3) EPC, “round” could not be changed to “circular”.

Non-infringement of Spanish patent validation

When a European patent is granted, it is necessary to validate it in the contracting states of the holder’s choice in order for it to have effect in those countries. Translation requirements vary from country to country, and in Spain it is necessary to submit a complete translation of the specification into Spanish.

If there is a translation error, it is possible to correct it at any time, but this error may have legal implications, as the correction will not take effect until it is published.

Article 12 of Royal Decree 2424/1986 on the application of the Convention on the Grant of European Patents states that any person who, in good faith, begins to work an invention or makes effective and serious preparations to that end, without such working constituting an infringement of the application or of the patent according to the text of the initial translation, may continue without compensation to work it in his Company or for the needs of his Company.

Therefore, an error of translation could imply the impossibility to act against a competitor if the indicated requirements are fulfilled, even if the granted European patent is infringed.