1997

Patent: A translator's dream

I must have been inspired by our smart cooker and invented something to help me carry out my translation job. I even named that something: 'mePET' (me-Proofreader-Editor-Translator).

My aim must have been obviously to provide a technical solution for the times I was not able to work, either because of exhaustion or sleeping, or just due to loss of motivation. So, I wanted it to do my job when I'm off.

Maybe my intention was just to increase my income by using more mePETs.

Or maybe my motivation was to sell this idea and leave translation to others while I'm on endless vacations.

Reality in dreams

Even in my dream, the real self in me asked some questions to my ideal self: "How will we protect our idea so that others won't steal it from us?"

During these talks, I instantly woke up from my dream with the impulse to start working as early as possible to complete my job that had a critical deadline, while my real self was whispering to my ideal self: "You should apply for a patent if you don't want our idea to get stolen."

What is a patent?

Provided that my idea above brings a solution to a technical problem and fulfills some basic patentability criteria which we'll discuss below, a patent is a legal right that can be granted to me in order to protect my idea.

According to Wikipedia, it is "a form of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention" for a limited period of years.

What is a patent application?

It is the written form of my idea, which I claim to be inventive. The written form should comply with formal requirements and include a description that describes the inventive idea to full extent, a claim or a set of claims which define/s or rather claim/s the legal protection scope of the idea, an abstract, and drawings to clarify the description, which all together make up the so-called patent specification, as is stated by the European Patent Office in the Guidelines for Examination, Part C, Chapter V, Article 10:

"As soon as possible after the mention of the grant is published in the Bulletin, the EPO publishes the patent specification containing the description, claims (in the three official languages) and any drawings."

A patent application involves both technical and legal aspects. A patent application turns into a patent once it fulfills the legal requirements to get granted a patent.

Claimed invention vs. (granted) invention

The adjective "claimed" (i.e. alleged) implies that no patent is granted yet to an inventive idea. In other words, it is not established yet by the relevant patent authority if the claimed inventive idea is novel, involves an inventive step, and is industrially applicable. These three criteria are those that make a claimed inventive idea an 'invention', in the formal sense.

Novelty?

It means that an inventive idea, which someone claims to be novel, should not have been publicly disclosed by the date that someone disclosed his/her idea.

For an inventive idea to be novel, or meet the novelty criterion, it should not form part of the state of the art on or before the date on which a patent application is filed for that idea.

According to the European Patent Convention (EPC, 54(2)), "[the] state-of-the-art shall be held to comprise everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application". The term 'state of the art' is a synonym of the expression 'prior art'.

So, for my inventive idea to be patentable, it should not be available in the state of the art, nowhere on the earth. Albeit the fact that patent-protection is location-based, i.e. an invention is protected only within the territory of a country or a group of countries at which the invention is registered by means of a patent application, the expression 'nowhere on the earth' means that an inventive idea registered by 'person A' at 'country X' will not allow the same inventive idea to be patented by another 'person B' in 'country Y' even if in 'country Y' the inventive idea of 'person A' is not patent-protected.

What is an inventive step?

Well, this term may sound ambiguous. However, its counterpart in the United States, "non-obviousness", is much more expressive and intuitive! It can be easily concluded that the "non-obviousness" criterion requires an idea not to be obvious, or not to easily come to everyone's mind.

Put more technically, if an inventive idea is non-obvious, i.e. involves an inventive step, then a person skilled in the relevant art would not be able to easily come to this idea using the resources of the prior art. Or put oppositely, if an inventive idea (we could just also say a claimed invention, or an alleged invention) is obvious, i.e. lacks an inventive step, then it should be easy for a person skilled in the relevant art to come to this idea using the resources of the prior art.

Regarding the expression 'person skilled in the relevant art (or pertinent art)', that 'skilled person' would be an organic chemist if the alleged invention would be an organic molecule, for instance. Hence in this case, the 'relevant art' would correspond to organic chemistry.

Industrial application / applicability

In the most general sense, this term, or this requirement means that an invention must be susceptible or capable of industrial application, including agriculture. In the U.S., industrial application / applicability is referred to as 'utility'.

However, this patentability criterion has a wide range of differences among countries concerning its interpretation and practice.

What is a patent description?

It is the part of a patent application that defines a claimed invention to such an extent that would enable a skilled person in the relevant art to carry out, or embody the claimed invention.

What is the act of embodying an invention, or what is an embodiment of invention?

According to the documents under WIPO, an invention can be considered as a mental construct inside the mind of the inventor, with no physical substance. In other words, an invention does not require to be tangible. It may have a prototype or may not have a prototype yet, provided that it is industrially applicable.

On the other hand, the same resource states that "an embodiment of the invention is a physical form of the invention." This means that either the embodiment itself, or the product of the embodiment has to be tangible, has to have a 'body' as it occurs in the terms 'embodiment, 'to embody', or 'embodying'.

What does a claim mean?

A claim or a set of claims is the critical part of a patent application that defines the legal territory of a claimed invention in terms of intellectual property law. The claims also constitute the core of a patent application, which, for instance, during the time a search report is drawn is deeply evaluated in terms of the patentability criteria. Therefore, particularly the translation of the claims should always be free of translation errors and in compliance with the original text.

Drawings?

It is the part of a patent specification that provides a visual depiction of a claimed invention, or its subject-matter, as regulated by the relevant implementing regulations.

Subject-matter?

Regarding a patent translator, the simplest definition of a subject-matter is that what is defined in the very beginning of a patent application, a section which typically can be found in patent applications under the heading '(Technical) Field of Invention', as well as the preamble, i.e. typically the first paragraph of the first patent claim. It can be a product, a process, a use etc.

Aspect vs. Embodiment

An aspect of an invention is a particular part or feature, or a particular appearance of that invention for which its patent application seeks legal protection or claims to be novel and to involve an inventive step. An invention can naturally have more than one aspect.

On the other hand, an embodiment is that what result of carrying out or realizing an aspect of the invention.

Thus, aspect is superior to embodiment. An aspect can have many embodiments.

What is patent translation?

In the most general terms, it is the translated version of a patent application originally written in a language that is not the official language (or one of the official languages) of a state, where protection is sought for the patent application.

Isn't patent protection worldwide?

No, it is not. A patent is protected only in the territory of a country or region where it is filed and patented.

What does filing mean?

'Filing' is just the act of applying before the relevant authority for a claimed invention.

Patent authority?

It is the institution in a country that regulates the intellectual property rights (e.g. the Turkish Patent and Trademark Office, Deutsches Patent- und Markenamt, or the United States Patent and Trademark Office) or it is an organization of a multitude of contracting states (e.g. EPO (the European Patent Office)).

Is patent translation required by law?

Well, it depends. It depends, inter alia, on the language a patent application is originally written, on the country it will be filed with, and on the system (e.g. EPC, PCT) used for registering the patent abroad.

In this context, the European Patent Convention, Article 14 reads as follows:

"(1) The official languages of the European Patent Office shall be English, French and German.
(2) A European patent application shall be filed in one of the official languages or, if filed in any other language, translated into one of the official languages in accordance with the Implementing Regulations. Throughout the proceedings before the European Patent Office, such translation may be brought into conformity with the application as filed. If a required translation is not filed in due time, the application shall be deemed to be withdrawn.
(3) The official language of the European Patent Office in which the European patent application is filed or into which it is translated shall be used as the language of the proceedings in all proceedings before the European Patent Office, unless the Implementing Regulations provide otherwise."

For instance, for a Turkish inventor (or any other inventor whose official language is not one of the official languages of EPO) to seek protection under the EPC system, the inventor is required to provide the English, German or French translation of the patent application if it was not originally written in one of these languages.

On the contrary, for a European patent to enter the national phase in Turkey, the Turkish Patent and Trademark Office requires the submission of the Turkish translation of the whole set of patent specifications (i.e. description, claims, abstract and any written information on the drawings, as well as the translation of sequence listings) to get that European patent validated in Turkey.

To be more concrete, the Turkish Industrial Property Law states that a patent application can be filed with the Turkish Patent and Trademark Office in a language

- of a country which is a contracting party of the Paris Convention, or

- of the Agreement on establishing the World Trade Organization, or

- of a country that has a cooperation with the Republic of Turkey based on the principle of reciprocity,

provided that the Turkish translation of the patent application (complete text) is submitted within two months as of the date of filing (Implementing Regulations of the Turkish Industrial Property Law, Article 72, paragraph (2)), or when requested within this period, within an additional three-month period beginning at the end of this period if an 'Additional time request fee for Turkish translation of the fascicule of a European Patent' is fully paid on time (see the Patents Fees of the Turkish Patent and Trademark Office).

Exemptions in patent translation

Given the high translation costs faced by proprietors, this issue has always been on-topic particularly in developed countries in which thousands of patent applications are filed every year internationally. The London Agreement dated 17 October 2000, for instance, aimed to reduce the costs of the translation of European patents, but still do not cover all countries. For a list of countries and their status in this respect may be found on the graphic given in Wikipedia.