Monday, November 27, 2017

Languages of Innovation: the tortuous linguistic history of the EU’s Unitary Patent System

By Victoria Bauer and Zsuzsanna Fagyal-Le Mentec

At first glance, the European Union has the most liberal language regime in the world: all twenty-four of its official languages are considered equal and can be used by EU citizens to communicate with their institutions. The EU’s strong commitment to multilingualism holds despite the formidable costs associated with the enormous translation flow. Consider, for instance, that the European Commission's Directorate General reportedly spends over 330 million euros per year on translation (Translation in the EU) and the total costs of language services within the Union are estimated to be close to a billion euros. However, EU language regimes are much more constrained than they might appear.

Source: Wikipedia
In principle, the Council of Europe determines the rules governing language use (Article 342, Treaty on the Functioning of the European Union), but EU institutions “may stipulate in their rules of procedure which of the languages are to be used in specific cases” (The French Language in European institutions). Typically, a handful of languages are used as ‘procedural’ or ‘working’ languages, but preference for one or another can vary depending on the context and the institution. For instance, the European Commission works exclusively in English, French, and German, while the European Council varies its rules of language use depending on the meeting. The European Parliament has an even greater flexibility: it can mandate up to seven languages per group of interpreters delivering simultaneous interpretation in its plenary sessions. Occasionally, language use in EU institutions can become a political issue.

In the late 1990s, legal and financial experts working on the newly planned European Unitary Patent System were close to a major breakthrough. Having worked for decades on replacing the systems of national patents requiring costly translations by a single European patent, the European Patent Office (EPO) was finally ready for a new era of unity and transparency. Since the EPO has been working in English, French, and German since its foundation in 1997, everyone assumed that patents under the new unitary system would continue to be written and filed in these three languages. After all, they would require no additional translations and would allow patent applications to be handled fast and efficiently. Who would possibly object to such advantages?

As it turns out, multilingualism got in the way...

EPO Office
Unexpectedly, Italy and Spain disagreed. They objected strongly to the idea of a practical status quo in matters of language when filing for patents with the EPO. They cited conflicts with their own national interests and claimed that the proposed trilingual patent system would put their own businesses at a disadvantage over British, French, and German companies. When the Council of the European Union gave the green light to proceed without the unanimous support of all member states, Italy and Spain took the EPO to court.

In May 2011, Italy and Spain filed for the annulment of the language clauses of the unitary patent regulation with the European Court of Justice (CJEU cases C-274/11 and C-295/11). They have argued that the proposed language regime was discriminatory: filing innovations only in English, French, and German would be non-compliant with EU treaties, distorting competition, and causing a misuse of the Council’s powers. Italy and Spain’s goal was to add Italian and Spanish to the list of working languages in which all patents could be translated when filed. Or, as a possible concession: use English only. When the French objected to the latter, the negotiations have stalled.

The controversy has dragged on for years. While everyone agreed that it was a good idea to ‘streamline’ the patent application procedure, how to do it without undermining national interests remained an open question. In 2012, a second version of the patent scheme was debated in the Parliament and the Council. Most state parties seemed satisfied with the idea of proceeding without the agreement of Italy and Spain, as the financial gains of the new scheme looked promising enough to prompt further action. According to the European Commission: "an EU patent validated in only 13 Member States cost on average €20,000, compared to €1,850 in the United States” (see Last hurdle for EU Patent: translation). Translation costs, which then stood at €14,000, would be reduced to approximately €680 per EU patent. It was also estimated that adding a single language to this translation scheme could add up to €1,500 to the cost of a single patent.

Image Source
And yet, it took until October 2015 for Italy to agree on a new version of the Unitary Patent system. On the Spanish side, the opposition remained unchanged. The Spanish Employers Organization (CEOE), among others, explained that it “strongly supported the position of the Spanish Government” resisting the “unbalanced and discriminatory language regime” of the proposed unitary system (see reference). While Catalonia has been ready to join for several years, Spain’s central government continued to argue in favor of an English-only system that the French continued to refuse. Despite a non-binding vote in the Spanish Parliament in March 2017 in favor of joining the unitary patent system, the Spanish government resisted. The Spanish government pointed out that patents are an important way of disseminating and protecting technological and scientific innovations and that the Spanish language could be just as useful in doing so within the EU as it already is everywhere else around the world. Economic and legal reasons for resisting a language regime not including Spanish were foregrounded:

  1. Spanish companies would not be able to file European patents with unitary effect ("Unitary patents") in their own official language;
  2. Since the Unitary patents would not need to be translated into Spanish in order to produce effects in Spain (unlike the case of "traditional" European patents), the Spanish companies would not benefit from the disclosures therein;
  3. The linguistic regime would also produce legal uncertainties for Spanish companies, which would have to respect the rights conferred by more than 95,000 new patents per year (not translated into Spanish).
  4. Spanish companies would bear the translation costs of every new patent;
  5. Spanish companies would be forced to plead in English, French or German in invalidity and non-infringement declaratory proceedings which would be heard by the Unitary Patent Court’s ("UPC") central division.
  6. Spanish companies sued for infringement before the local divisions would also have to litigate in a language chosen by the patentee.
To date, neither the Unitary Patent System, nor the Unitary Patent Court have been ratified in every EU member state. The Brexit vote, unsurprisingly, threw an additional wrench in the works, and this summer Germany's constitutional court has also put a halt to domestic legislation trying to ratify Europe’s single patent system. On the German side, the objections appear to be legal rather than linguistic, but the outcome remains the same: the entry in force of the unitary patent scheme might again be delayed well beyond the currently intended date of December 2017.

Although the winners and losers of this particular language controversy are still too early to call, one is reminded of the warning of the late Joshua Fisher, sociologists and expert in multilingualism: “Do not leave your language alone”, if you want it to make it to the next era of global innovation and language use.

Sources:

‘Unitary Patent & Unified Patent Court’, official site of the European Patent Office https://www.epo.org/law-practice/unitary.html

“Patents: Commission proposes translation arrangements for the EU patent – Frequently Asked Questions”, 1 July 2010, MEMO/10/291 http://europa.eu/rapid/press-release_MEMO-10-291_en.htm?locale=en

‘Patent Translations, Language Wars, and the EU Patent’, March 15, 2011 https://www.morningtrans.com/patent-translations-language-and-the-eu-patent-2/

‘Italy and Spain sue over patent language’, EU Observer, June 1, 2011 https://euobserver.com/innovation/32434

‘Language Winners and Losers -The 40-Year European Patent War is (Almost) Over’, byLibor Safar, July 4, 2012 http://info.moravia.com/blog/bid/182942/Language-Winners-and-Losers-The-40-Year-European-Patent-War-is-Almost-Over

‘The unitary patent’, Library of the European Parliament, June 12, 2012 http://www.europarl.europa.eu/RegData/bibliotheque/briefing/2012/120404/LDM_BRI(2012)120404_REV1_EN.pdf

‘Unified EU patent scheme moves a step closer’, April 16, 2013, http://www.computing.co.uk/ctg/news/2261808/unified-eu-patent-scheme-moves-a-step-closer

‘Spain would have been better off inside the Unitary Patent and the Unified Patent Court’, Kluwer Patent Blog, October 20, 2015, http://kluwerpatentblog.com/2015/10/20/spain-would-have-been-better-off-inside-the-unitary-patent-and-the-unified-patent-court/

‘The European Patent Office (EPO) Doesn’t Like Spanish, So Why Should the Spanish Tolerate the EPO?’, January 8, 2016 http://techrights.org/2016/01/08/epo-vesus-spanish-speakers/

‘False alarm: Spain will not join the Unitary Patent System after all’, March 27, 2017 http://www.lexology.com/library/detail.aspx?g=5567f802-70fa-4f48-814e-27fa1378e6b0

“Germany puts halt on European unitary patent”, June 13, 2017 https://www.theregister.co.uk/2017/06/13/germany_halts_european_unitary_patent/

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Victoria Bauer is a second year MAEUS student and a French FLAS fellow, and Zsuzsanna Fagyal-Le Mentec is an Associate Professor of French Linguistics at the University of Illinois at Urbana-Champaign. They collaborated on this blog post as a follow-up to Victoria’s work on procedural languages in the EU in the FR 418 ‘Language and Minorities in Europe’ seminar.

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