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Document Translation Dispute Irks Judge

August 12, 2011

Disputes involving document translation are not unusual during patent litigation. What is unusual is for the presiding judge to single out these translation disputes in his decision. But in Gemstar- Tvguide International Inc & Others v Virgin Media Ltd & Another [2011] EWCA Civ 302, Lord Justice Robin Jacob did exactly that.

The case hinged on whether several Gemstar patents lacked novelty because a Toshiba patent published a month earlier disclosed the same idea clearly and unmistakeably. Since the Toshiba patent was in Japanese, the translation of the document became a key issue. Lord Justice Jacob notes:

“…I must say a word about the disputes over translation. For there have been several translations. A lot of expense and time was wasted because of this…In principle, whenever a party relies on a document in a foreign language, the translation should be sorted out at an early stage. Ideally the party relying on the translation should send it to the other(s) with an express request for agreement within a reasonable time…If the translation is agreed, well and good. But if not, the Court at the case management stage should normally insist upon agreement or early resolution of the translation dispute, if necessary by a hearing for that purpose.”

Lord Justice Jacob goes on to say that in the end the translation issue was only settled at the trial. The bottom line is that document translation should be carried out at an early stage, so that any disagreements can be worked out during the case management conference, if not before. For critical foreign language documents, it also makes sense for each side to exercise due diligence by having the translation independently reviewed and/or performing a backwards translation and asking the translator to explain any discrepancies. If your translations aren’t in order before the trial begins, you risk provoking the judge’s ire.