The other side of the coin of the EU’s welcome inclusiveness and multilingualism is that some things are made worse by it.Anyone attending EU meetings knows that language is the elephant problem in the room – everyone desperately wants each language to be equal to another, but, for a range of reasons completely beyond the control of ordinary people (former imperialism, current globalisation, the strength of economies) they are not. Normally, the institutions throw money at the problem, and by employing an army of translators and interpreters, it can be pretended that we are all equal after all.

Then along comes a question which cannot be solved so easily. The topic raising the awkward issues at this time is patents, and here is why. It is estimated that patent costs are 10 times higher in Europe than in the US: a European patent validated in 13 countries, for example, can cost up to €20,000, of which nearly €14,000 comes just from the translation costs, which makes it 10 times more expensive than a US patent, which comes in at around €1,850. To say that this discourages research, development and innovation, as the commission acknowledges, is the wildest understatement. It impacts particularly adversely on small and medium-sized enterprises, which cannot afford protection in all 27 member states because of the translation costs.

The European Commission has been trying to do something about it for 35 years, so that ‘innovators can protect their inventions at an affordable cost with a single patent covering the entire EU territory with minimum translation costs and without needing to validate that patent at a national level as they currently have to do’. One question which needed to be resolved was where the patent could be litigated, but that is settled by the council’s agreement of 4 December 2009 for a single EU patent court, on which the EU institutions are still awaiting an opinion from the European Court of Justice. But the second question is that of languages. That is where the fireworks begin.

On 1 July, the European Commission published a new proposal to limit the translation of the future EU patent to three languages: English, French and German. This must be the only, or nearly the only time (if you can think of another, please let me know) that the EU institutions have favoured particular languages, to the extent that another member state’s language will become the official text in a member state which does not speak that language. The patent would be issued in one of the three and would be published in that language, too, which would become the legally binding text. The publication would include translations of the claims – the section of the patent defining the scope of protection of the invention – into the other two official languages. No further translations into other languages would be required from the patent proprietor, except in the case of a legal dispute. Spain, for one, has been opposed to this language regime because it does not include Spanish, and it fears its national patent office will lose business as a result of the EU patent.

It is proposed that high-quality machine translations of patent applications and claims will be made available in all the official languages at no cost. These will be provided for information purposes and will not have legal effect. The commission is supporting the PLuTO project (Patent Language Translations Online), which aims to extend this system to all official EU languages. In addition, inventors from EU countries whose official language is not one of the three selected will be able to file their applications in their own language, with subsequent translation costs reimbursed. There is an unacknowledged problem here, though: machine translations, even high-quality ones, have not so far proved reliable, particularly when it comes to terms which have legal effect. For instance, we employ a human translator in our office who uses difficult legal terms day in and day out, and there are still regular problems about how a legal term translates into another language – and we use only two (English and French). But we should wish PLuTo good luck nevertheless.

The patent problem is becoming more urgent, because the EU is falling behind in research and development, which most people agree is the key to our own and our children’s economic future. According to a study carried out by the Bruegel Institute, the number of patent applications in China has risen from just over 50,000 to almost 300,000 between 2001 and 2008, more than in Europe (230,000 applications). So it is not a surprise that the commission is keen to make progress on this issue.

But we are not there yet: expect more language trouble ahead until there is final agreement. And before you say to yourself that other member states will just have to get used to it, try and imagine what it would be like if legal texts were available in the UK only in languages other than English.

Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies

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