23 February 2014

The Role of the Translator

Pieter Bruegel "Tower of Babel"    Source Wikipedia

If you want a patent for your invention you have to persuade the Intellectual Property Office  that the invention is new and involves an inventive step {see s.1 (1) (a) (b) Patents Act 1977).  S.2 (1) provides that invention shall be taken to be new if it does not form part of the state of the art.  S.3 also refers to the state of the art when explaining what us meant by an inventive step:
"An invention shall be taken to involve an inventive step if it is not obvious to a person skilled in the art, having regard to any matter which forms part of the state of the art by virtue only of section 2(2) above (and disregarding section 2(3) above)."
The term state of the art is one that is used frequently by advertisers and others well outside patent law but what exactly does the phrase mean?

State of the Art
For the purpose of this discussion I shall take the definition provided by s.2 (2) as 
"all matter (whether a product, a process, information about either, or anything else) which has at any time before the priority date of that invention been made available to the public (whether in the United Kingdom or elsewhere) by written or oral description, by use or in any other way."
It is actually slightly broader than that but we can put that to one side for today. It is everything that has been made available to the public by written or oral description by use or in any other way anywhere in the world. That includes patents and patent applications of course but also academic papers, brochures catalogues, data sheets, web pages - you name it.  And - and this is the crucial bit - the disclosure does not have to be in English. If in some sleepy Swiss canton or the back streets of Algiers someone has anticipated your invention or come so close to your invention that your invention  is obvious you won't get a patent or, if you do get a patent, your grant could be revoked.  As Tommy Cooper used to say: "Just like that."

How to protect yourself
So what do you do about it? Well search! Search as many relevant patents and patent applications as you can. Search also the technical and trade literature. And not just in English. If you happen to know of an academic working in the same field at a Swiss University in some idyllic mountain valley the good professor is likely to publish his results in German.  If your competitor trades in Algiers his first foreign language is likely to be French and that's the language in which he will publish his brochures and data sheets.

But we Brits are very bad linguists. Most of us do French and possibly German up to GCSE and then drop it for A" levels in something else. That is not enough to make sense of a patent specification or article. So what next? Well here's where Alison (or someone like her) comes in.

Alison Penfold
Alison is a freelance technical translator specializing in patents and other intellectual property work. Her languages are French and German and she also knows some Dutch. She is an Associate Member of the Institute of Translation and Interpreting (AITI).  She read French, German and Linguistics at the University of East Anglia and rook a postgraduate diploma in translation and interpreting with distinction from the University of Kent. She worked for Lloyd Wise Tregear as a staff translator between 1987 and 2007 and then for Marks & Clerk between 2007 and 2009. Since then she has practised on her own account.

Revocation Proceedings 
You may also need a translator if you think you are sued or likely to be sued for patent infringement. If possible you will want to claim that the patent is invalid on the ground that the invention was anticipated or obvious having regard to the prior art.  At least some of the materials on which your lawyers or patent attorneys will rely are likely to be in a foreign language for which you will need a translation.

Further Information
If you want to discuss this article or patent law in general, call me on 020 7404 5252 during office hours or send me a message. You can also tweet me, write on my wall or contact me through G+, Linkedin or Xing.

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