Bundesverband der Dolmetscher und Übersetzer e.V. (Federal Association of Translators and Interpreters). The Federal Executive Committee

Bundesverband der Dolmetscher und Übersetzer e.V.
      (Federal Association of Translators and Interpreters).

      The Federal Executive Committee

Comments by the German Translators and Interpreters Association (BDÜ) regarding
the "Proposal for a COUNCIL REGULATION implementing enhanced cooperation in the
area of the creation of unitary patent protection with regard to the applicable
translation arrangements" (COM(2011) 216)

With more than 7,000 members, the German Federal Association of Translators and Interpreters
(BDÜ) is the largest German professional body in the industry. It represents 75 percent of all
organised translators and interpreters in Germany, and acts as a point of contact for trade,
industry, politics and education and training matters.
An important area in which our members are active concerns patent law. It is for this reason
that we have followed the proposals of the European Commission regarding the Regulation
"implementing enhanced cooperation in the area of the creation of unitary patent protection "1
as well as the Regulation "with regard to the applicable translation arrangements"2 with great
interest.
A unification and simplification of the granting of patent applications within the European
Market is a welcome development in principle, particularly bearing in mind small and medium
sized businesses. By limiting the administrative and formal requirements, it is possible to reduce
both the amount of work and the fees involved. However, in doing so it is necessary to ensure
that appropriate scenarios and values are used as a basis for ascertaining the potential areas of
cost savings. At the same time it is important to avoid a situation where the desire to comply
with the dictate of saving costs results in the creation of problems that would significantly
increase the costs in another area.

Legal certainty is at risk
A patent specification is an exclusive right for the owner thereof, but it also functions as a
source of information for thousands of businesses. Patent literature is highly topical and makes
the level of knowledge of the inventors available to interested parties. This exchange of
information, which was intended by the legislators as consideration for the limited exclusive
right, will only successfully function as a motor to innovation if the information can be accessed
without difficulties. In order to ensure this, it is necessary to have qualified and professional
translations into the respective official languages of the EU member states. Apart from the lack
of legal certainty which would result from a missing or poor translation, this would also lead to
the whole of the information that is contained in the patent application not being communicated
properly and essentially being lost, which would be an incalculable loss and contrary to the
intention of supporting innovation.

1
    COM (2011) 215.
2
    COM (2011) 216.

Page 2 of the policy paper of the BDÜ regarding the European Patent dated the 25th of
    May 2011

Legal certainty, therefore, depends to a significant extent on legal content being accessible, as
well as being linguistically correct and comprehensible - and this does not apply exclusively to
patent law. As a rule this means that the content needs to be available in the native language of
the addressee.
The language regulation proposed by the Commission in the area of patents will significantly
restrict the translation of patents. Generally speaking these will initially only be supplied in
English and one other language. As a result many interested parties will not be able to access
the content of such applications in their native language.
It is already the case that many patent applications are not submitted in the native language of
the author. There is a danger, that the original text is already one that has clear linguistic
defects. Experience shows that this applies in particular to submissions from Asia, and
particularly for English language texts, which will be the texts that interested parties will mostly
need to rely on under the proposed language rules. Moreover, limiting translations will also lead
to a situation where an important safeguard against the general deterioration of the linguistic
quality, and as a result the comprehensibility and clarity of patent texts, is lost.
The significantly greater difficulties in understanding existing patents and the resulting decrease
in legal certainty will necessarily result in an increase in patent disputes. The Commission also
envisages this in the Regulation regarding languages, when asking the Courts to "take into
consideration that, before having been provided with a translation in his own language, the
alleged infringer may have acted in good faith and may have not known or had reasonable
grounds to know that he was infringing the patent".3
In the event of a legal dispute the Commission intends to oblige the proprietor of a given patent
to provide certain translations.4 If one also considers the legal costs as well as the costs for any
further translations and language service provision that may be required in legal proceedings,
then it is doubtful whether the limitation of translation requirements would not rather incur
more costs in this area for businesses, states and the general public, than would be saved by
these measures.

Substantial risks when using machine translation
In principle the Commission confirms that a comprehensive translation is necessary in order to
disseminate the contents of patents within the EU member states5. In order to mitigate the
consequences outlined above, the European Commission plans to cover this translation demand

3
  COM(2011) 216, Article 4
4
  ibid. (Article 4)
5
  The Impact Assessment states: ”The development of automatic machine translation (AMT) programs for
patent documents is essential in order to improve the dissemination of technological information for researchers
throughout the EU”, SEC (2011) 482/2.

Page 3 of the policy paper of the BDÜ regarding the European Patent dated the 25th of
    May 2011

by utilising machine translation. The experience of many translators working within the field of
patent law, as well as from other fields using the automated translation systems that are
currently available on the market, leads the BDÜ to caution against these plans.

The demands placed on translators within the field of patent law are extremely high. They need
to be able to accurately convey complex legal content in the other language, as well as
translating innovative and technically sophisticated descriptions, which, after all, is what a
patent is composed of. Frequently this will involve neologisms in the source language, which
means that it will be necessary to create a neologism in the target language too. Such
translation decisions are frequently based on extensive research in subject specific literature
and commentaries. Furthermore, there are certain different drafting conventions and structures
in the different languages, both in the scientific-technical field and in the legal field, and such
conventions and structures can be of great importance in respect of the content of the text. In
order to produce a professional and accurate translation it is necessary to have a comprehensive
knowledge of the relevant languages and the subject area, but also a certain feel for each
individual text.
Automatic machine translation systems are not able to fully comprehend, far less translate,
legally complex matters, into the drafting of which patent attorneys pour a considerable amount
of time and effort, even if certain vendors keep claiming this. Such systems are unable to
recognise innovative neologisms, nor indeed would they be in a position to spot any errors in the
source text. A qualified patent translator, on the other hand, recognises difficulties, is able to
clarify matters, either by consulting with the authors of the text in question, or indeed with
other experts in the field, and would be able to point out potential errors in the source text. In
so doing, the translator helps the patent applicant to better protect his rights. The European
Commission acknowledges the current lacking quality of machine translations, recommending
that any translations that are to be submitted in legal proceedings should "not be carried out by
automated means".6 Accordingly, any machine translations produced in future "should serve for
information purposes only and should not have any legal effect.".7
Moreover, it is still unclear to us on what basis the Commission assumes that "the maximum
period for the development of high quality machine translations [into all official languages of
the EU] cannot be considered to exceed 12 years.".8 If one considers the experience that has
been gained so far within the field of professional translation in using automated translation
systems, it is difficult to believe that machine translation for the purposes of being used for
scientific and technical texts should be possible within that timeframe.

Cost of translation
The information regarding the translation costs, which are generally named as the largest cost

6
  COM (2011) 216, Recital 8.
7
  ibid., Recital 9.
8
  ibid.

Page 4 of the policy paper of the BDÜ regarding the European Patent dated the 25th of
    May 2011

driver when applying for patents in Europe, is often only given in abbreviated form. What this
does not take into consideration is the fact that translators are often commissioned by patent
attorneys to provide translations, and that a not inconsiderable part of the so-called "translation
costs" are actually incurred on the patent attorney's side. A database system that is easy to
install, and which in many cases exists already9, enables patent applicants to find a suitable
translator, thereby avoiding any such "referral costs", without incurring the problems set out
above.
One matter that is entirely unclear at the moment is the question of how the average translation
costs for patents have been calculated, which form the basis of the Commission's proposals. The
impact assessment of the EU Commission in relation to the draft Regulation regarding the
translation requirements 10 quite rightly recognises that specially qualified translators are
necessary. Moreover, the apodictic claim is made that the price for one page of a patent is on
average 85 Euros. However, there is no explanation as to how this average was arrived at or on
what basis it has been calculated. The only point that is mentioned is the fact that this value
served as a basis for a decision by the Council in the year 2003, and that it was confirmed by
data provided by "translation service providers".
Nevertheless it is a fact, that in spite of the high demands that patent translators need to
satisfy, as set out above, generally they do not command fees of this magnitude!
No matter how high the costs for qualified translations might be, the costs, where they are
borne by the proprietor of the patent, only arise once, namely at the beginning, e.g. when a
patent is granted; alternatively any businesses in the entire economic area would need to obtain
translations at their expense, purely on the basis of a hunch that the document in question
might turn out to be of interest to them. Consequently qualified translations into all official
languages are indispensible both for the purposes of safeguarding legal certainty, and as a
measure supporting innovation.

Conclusions drawn by the BDÜ
It will continue to be the case that an effective protection of patent rights will only be possible
within the European Member States if the patent specification is available in the languages of
the proprietors and the users. It is in the nature of the thing that in Europe this relates to more
languages than in the United States or Japan. If the linguistic variety that Europe boasts is
viewed solely as a cost factor, one risks missing the enormous value that this linguistic variety
represented for the industrial development of Europe both in the past and in the present. This is
not something that can simply be addressed by resorting to the use of automated translation of
dubious quality.
For this reason the BDÜ would recommend that the use of machine translation, which is already
common practice, should be limited exclusively to the internal use within the European Patent

9
  The BDÜ, for example, provides a database on its website www.bdue.de which allows users to search for
suitable translators, for example by region and area of specialisation.
10
   SEC (2011) 482/2.

Page 5 of the policy paper of the BDÜ regarding the European Patent dated the 25th of
   May 2011

Office. However, if developers as well as proprietors and users of patents rely on certain texts
and act on that basis, but in a way which has legal consequences, then we demand that the use
of machine translation should be eschewed in its entirety in the instant proposal for the
Regulation. This is a situation where machine translations cannot in any way be deemed to be
sufficient. In such cases it is absolutely necessary to use qualified, specialised translators.

The fields of European legislation and EU politics in particular provide extensive language
regimes, which ensure that political and legal information is accessible for deciders on the
European as well as the national level, for experts but also for the "common citizen". In view of
this, it is rather difficult to understand that the proposal suggests that one should almost
entirely do without specialised translations in such a highly complex and legally sensitive field as
patents.

André Lindemann                                     Manfred Braun
President                                           Federal Representative of Specialised
                                                    Patent Translation