The rapid growth of technology and its globalization has extended the boundaries of its implementation beyond any territorial bounds. Today, every segment of the economy is being expanded worldwide on a large scale. This has significantly increased the demand for technology to be protected from it being used without authentication at both local and global platforms. These factors have dominantly contributed to an increase in the number of patent applications filed each year. These increases in the number of patent applications have cut across international boundaries which have aroused new challenges associated with it. Patent Translation is one of the bigger challenges for an organization looking for a diverse area of protection in multiple jurisdictions.
Every jurisdiction has its language requirement specifically dealing with domestic language. These documents which are filed in other jurisdiction must be drafted with absolute accuracy to not get into any such zone of uncertainty. Therefore, the patent application filed for translation must be drafted precisely. Why this translation becomes an important part is because the words play a major role in the grant of patents and also in the litigation. The precise translation, if not done, can also result in even the refusal of patent and can lead to a loss in litigation as well.
Statutory Requirement in different jurisdictions
Various jurisdictions provide the translation as a statutory requirement. The application filed by the applicant in another country either as a part through convention route or PCT filing, claiming priority must prove the application to be within the scope of claims in the first filing. Therefore the patent office can demand the priority application be translated.
In Europe under Article 65(1) of the European Patent Convention, any contracting state may, if the European patent as granted, amended, or limited by the European Patent Office is not drawn up in one of its official languages, seeks to request the applicant to provide with the application in the specific official language.
In the PCT Rule 66 which talks about the Procedure before the International Preliminary Examining Authority, Rule 66.7 speaks about the Copy and Translation of the Earlier Application. It says that the application whose priority is claimed in the international application is in a language other than the language or one of the languages of the International Preliminary Examining Authority, the applicant will be required to furnish a translation in the said language or one of the said languages within two months from the date of the invitation
35 U.S.C. 119 and 35 U.S.C. 371(c)(2) where the former talks about the benefit of earlier filing and the latter talks about the National Stage Commencement reiterate the need for translation when the document is not in English. In India, under Rule 20 of Indian Patent Rules 2003, the translation requirement is specified if the application is not in English
Importance of Translation
As mentioned above regarding the statutory requirement in various jurisdictions regarding the translation, the importance of translation can very well be apprehended. This need arises from the fact that the claims should mention the scope of the subject matter of the invention.
A poor translation can even render the patent to be refused. Hence the translation needs to be done with utmost precision.
The translation is a lengthy process and the applicant must have all the pre-requisite timelines associated with filing in multiple jurisdictions. The translations should not be done in a way that can have different repercussions for the applicant.
This repercussion with the patent can even open the door of litigation. Even in litigation, the importance of patent translation becomes the key to adjudicate disputes with regards to subject matter and claims.
Undoubtedly the translation being complex or easy is dependent upon the fact of technology being associated with the same. Complex technologies require more expertise in translating.
Translation cannot be limited to patent preparation only and also extends its limit to various patent searches i.e. prior art search or the FTO search. The translation must be very precise and correct because the research over the prior art will form the base of the grant of the patent.
Originally Published by Khurana and Khurana , January 2021
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