The obvious solution is an EU patent that would be legally binding in all EU member states, and require minimal or no translation. That has long been a dream of European officials, but disagreements about language and other issues have prevented the EU patent from coming into being.

Now the European Commission is proposing a compromise that would allow European patents to be submitted to the EPO in just one of the office’s official languages – French, German, or English. The claims would still have to be translated into the other two languages, which is line with the current reality. In case of litigation, the patent holder would have to provide a full translation into the language where the infringement process is taking place. Most patent applications in Europe are already filed in English, and French and German are the next most common languages, so the time and cost of translating patents for Europe would be drastically reduced.

Unfortunately it doesn’t look like this regulation is going to pass anytime soon. Spain and Italy are strongly opposed to having their languages dropped, and several other European countries are also against it. EU officials predict heated discussions in the coming months as they seek a compromise solution that all 27 EU members are willing to sign up for. Morningside will continue monitoring the situation and update our readers on developments.

In December, EU ministers made a big breakthrough in negotiations concerning the EU patent, agreeing to set up a single patent court for the EU. But the plan still has a long way to go, and for now, 27 EU governments are awaiting a legal opinion from the European Court of Justice and the input of the European Parliament before moving ahead.

What does this mean for patent translations? Since the London Agreement went into force in May 2008, most EU countries do not require translating a full patent into one of their official languages if the patent was drafted in one of the official languages of the EPO (i.e., English, French, or German). Several contracting states still require that the claims be translated into their official language, but do not require a translation of the description. The London Agreement has certainly reduced the translation costs involved in filing patents in Europe, which, according to the EPO, can account for over 40 percent of the overall filing costs. (For biotech and chemical patents, the translation costs can be significantly higher.) But the London Agreement—while it reduced the need for patent translation—did not solve the problem of high translation costs in Europe. Many EU states still have not signed the London Agreement, and as anyone who has filed a long patent application broadly across Europe knows, the translation costs can still be exorbitant, easily exceeding $100,000 when filing with expensive foreign associates. The EPO’s goal of a “post-grant language regime” where only claims have to be translated into national languages and the description can remain in English only still seems quite far away, and getting patent protection in the EU still costs 11 times as much as it does in the United States.

Obviously, an EU patent would supplant the London Agreement and could eliminate the need for any translations if the original application is written in English. Morningside will continue to closely monitor developments at the EPO and the EU as far as translations are concerned, in our continued efforts to reduce translation costs for our clients.