A guide to the UPC and the UP - Flipbook - Page 26
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Since the quality of machine translations is currently not yet high enough, art.6 Translation
Regulation defines requirements for translation during a transitional period. According to
art.6(1)(a) Translation Regulation, a full translation of the specification of the European patent
into English is required where the language of the proceedings was either French or German.
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According to art.6(1)(b) Translation Regulation, a full translation of the specification of the
European patent into any other official language of the EU is required when the language of the
proceedings is English. The reason why any language is allowed is that such translations should
contribute to the training of the translation engines by not being carried out by automated
means and by being of high quality. 29 Despite this statement, there is no provision in the
Translation Regulation itself that prohibits machine translations. There is also no required
standard for the quality of translations in the Regulation.
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Thus, the EPO’s interpretation of the Translation Regulation and the provisions on translations
in the UPCA is that a translation provided through Patent Translate is sufficient for obtaining
unitary effect, but a proper legally binding translation may be required in case of litigation.
Of course, whether submitting a machine translation provided by Patent Translate will really
be in conformity with the Translation Regulation is ultimately for the CJEU to decide.
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The duration of the transitional period is initially six years. Every two years thereafter an
independent expert committee will carry out an objective evaluation of the availability of high
quality machine translations of patent applications and specifications into all official languages
of the EU as developed by the EPO. 30 In any case, if not terminated by a proposal of the
Commission, the transitional period will lapse 12 years from the date of application of the
Translation Regulation. 31
Translation in the Event of a Dispute
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Irrespective of the regulations on the transitional period, a translation is required in the
event of a dispute according to art.4 Translation Regulation.
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A translation has to be provided at the request and the choice of an alleged infringer.
The alleged infringer may choose whether it wants to have a full translation of the Unitary
patent into the official language of the Participating Member State in which the alleged
infringement took place, or into an official language of the Member State in which the
alleged infringer is domiciled. 32
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If there are ongoing legal proceedings, the Court may also request a full translation of the
patent into the language used in those proceedings. 33 Further, art.4(4) Translation Regulation
states that the Court shall take into consideration when assessing damages, whether a full
translation as required under art.4(1) Translation Regulation was provided to the defendant,
as the defendant may not have known that they were infringing before the translation
was provided. 34
29
30
31
32
33
34
recital 12 Translation Regulation.
art.6(3) Translation Regulation.
art.6(5) Translation Regulation.
art.4(1) Translation Regulation.
art.4(2) Translation Regulation.
See chapter 15 (Remedies) paragraphs 15-54 to 15-58.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 16
