1. LANGUAGE AND PATENTS Gillian Davies Montréal, 11-13 July 2005

2. © Gillian Davies 20052 Introduction Language (translations) and patents are a major issue in Europe It is aggravated by the recent accession of eastern European States to EU membership Several proposals address it: the London Agreement on the application of Article 65 EPC the European Community Patent the European Patent Court

3. © Gillian Davies 20053 The worldview - Languages and PCT Filing languages of international applications Language2003 English63.8% Japanese13.8% German12.6% French3.9% Korean1.5% Chinese0.9% Spanish0.7% Swedish0.6% Russian0.5% Italian0.5% Dutch0.4% Finnish0.4% others0.4% Source: WIPO

4. © Gillian Davies 20054 Languages in the current European patent system Two possible ways to obtain patent protection in Europe: via the National Patent Offices via the European Patent Office (EPO)

5. © Gillian Davies 20055 The national Patent Offices Patent applications must be filed in (or at least translated into) an official language of the State

6. © Gillian Davies 20056 The European Patent Office (EPO) The EPO has three official languages: English French German

7. © Gillian Davies 20057 The language requirements on filing at the EPO Euro-direct applications: in English, French or German in certain cases in another official language of a Contracting State, provided that a translation into English, French or German is supplied later Euro-PCT application: in English, French or German

8. © Gillian Davies 20058 The language requirements on filing at the EPO Filing languages of Euro-direct applications Language2003 English66.1% German23.5% French6.2% Italian2.7% Spanish0.6% Dutch0.6% Finnish0.1% others0.3% Source: EPO

9. © Gillian Davies 20059 The procedural languages at the EPO All procedures before the EPO (search, examination, opposition, appeal) are conducted in the official language (English, French or German) in which the application was filed or translated

10. © Gillian Davies 200510 The translation requirements for the European patent Shortly before the grant of the patent: Translation of the claims into the other two official languages Within three months from the grant of the patent: Virtually all Contracting States currently require a translation of the whole patent specification into one of their official languages

11. © Gillian Davies 200511 Cost breakdown of an average European patent 1) 1) 8 States, 10-year term € 11,800 € 4,300 € 6,100 € 8,900 Source: EPO Translation in the Contracting States 38%

12. © Gillian Davies 200512 Consequence of the high translation cost Source: EPO Designation rate by Contracting State in 2003

13. © Gillian Davies 200513 Recent European developments on languages The London Agreement on the application of Article 65 EPC The Community Patent The European Patent Litigation Agreement (EPLA)

14. © Gillian Davies 200514 The London Agreement on the application of Article 65 EPC Signed by 11 Contracting States Not yet ratified by enough States to enter into force Under the Agreement: States with English, French or German as an official language will dispense with the translation of the patent specification any other State will only require a translation of the patent specification in the official language of the EPO prescribed by that State

15. © Gillian Davies 200515 The Community Patent The proposal includes the creation of a centralised Community Patent Court Unfortunately, it is currently bogged down in disputes over translations and enforcement

16. © Gillian Davies 200516 The language regime of the Community Patent During the application phase, applications should be filed in English, French or German, or be translated into one of these languages Upon grant of the patent, the claims would have to be translated into all the EU languages

17. © Gillian Davies 200517 The European Patent Litigation Agreement (EPLA) The EPLA foresees the creation of a European Patent court with exclusive jurisdiction to deal with infringement and revocation of European patents However, the EPLA has run into problems following the European commission's refusal to endorse the plan.

18. © Gillian Davies 200518 The language regime of the EPLA At first instance, the language of the proceedings would be: Before the Central Division, the language of the proceedings before the EPO Before a Regional Division in a State having an EPO official language as official language, that official language Before a Regional Division located in a State having either more than one or no official language which is one of the EPO official languages, any EPO official language designated by that State Before the Court of Appeal, the language of the first instance proceedings

19. © Gillian Davies 200519 Personal experience with languages at the EPO Problems arising from multiple languages Impact on scientific citations in the European Search Report Training of examiners The EPO's International Academy

20. © Gillian Davies 200520 Problems arising from multiple languages Different nuances of a term in different languages Simultaneous interpretation during oral proceedings

21. © Gillian Davies 200521 Impact on scientific citations in the European Search Report No statistics available From personal experience, probably a very small impact, although this may vary depending on the technical field. Most prior art citations are usually in English irrespective of the filing language of the application.

22. © Gillian Davies 200522 Training of examiners For practical reasons, mostly in English

23. © Gillian Davies 200523 The EPO's International Academy Founded in 1997 Provides training to judges, lawyers and examiners from countries in Eastern Europe, Russia, Africa, Asia and South America In 2004, a European Academy was created at the EPO with a similar mission but for the EPC Member States

24. © Gillian Davies 200524 Conclusion The language question is of economic and political importance English predominates in the PCT and EPC systems Compromise is required to solve the stalemate over the Community patent: the EPC regime of English, French and German has the best chance of reconciling the interests of industry with politics

25. © Gillian Davies 200525 The End Thank you very much for your attention! Email: gilliandavies@hogarthchambers.com