Thanks to the IPKat's friend and occasional incisive commenter Gerontius for pointing out co-blogger Alex Horns’ comments on an Intellectual Asset Management article that might dismay some patent attorneys.
The IAM writer comments on the recent troubles at European level relating to the EPLA agreement (see previous IPKat posts here, here, here, here and here), and says:
"The problem in Europe, however, is that there are very strong vested interests with a huge stake in the system as it currently is. For example, if translations are less important moving forward, that is going to have a substantial impact on the income of many patent attorneys in many countries. Likewise a single European patent court is going to mean less litigation work for a large number of lawyers, while the availability of a patent that covers the whole of Europe spells danger for national patent offices. With all this in mind, let’s consider who are among those most closely involved in the negotiation process. You’ve guessed it: national patent offices, patent attorneys and patent lawyers. Just what incentive do they have to find a way forward that will work? Throw in a very vocal and well organised lobby opposed to many forms of patenting on ideological grounds and you have a recipe for no meaningful progress at all".The IPKat would like to point out in a friendly way that patent attorneys as a body, ably represented by the Chartered Institute, have a clearly stated position of approving the EPLA, and have certainly not tried to block these moves. Furthermore, translations do not in fact have a great impact on attorney fees, since they are almost always outsourced to specialist firms, whose fees are simply passed on to the client. There is no great advantage for anyone in perpetuating a fragmented European patent system.
The IPKat thinks that there is a need for balance and fair play here, and the IAM piece (unusually) appears to have fallen short of the mark. Assuming the “vocal and well organised lobby” refers to the FFII et al (see comments on a previous post here), there appears to be some confusion over the now defunct CII (which most patent attorneys avoided like the plague, knowing it to be doomed from the start) and the EPLA (which any sensible patent attorney would see as being a good idea). Blaming patent attorneys for the lack of progress at a European level, when they have done absolutely nothing to prevent progress, but instead have on the whole actively encouraged it, is a tad unfair.
Merpel points out that, if we should be pointing the finger at anyone, some of the usual culprits may be found just over the Channel, although she is prepared to eat her words once (or if) the London agreement goes through.
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David, not sure that i) translation income makes no difference to firm income and ii) translation work is outsourced. I know at least one large German patent attorney firm where translation into German is a big part of the turnover, and it's done by trainee patent attorneys. They know the importance of getting the translation right, and they have the technical qualifications to understand what they are translating into their native tongue. One needs to factor this into any assessment of the comment from Axel Horn.
ReplyDeleteI can't comment on the situation in the EU, but here in Japan, in-house translation can be a major income stream for patent firms. Translations here are split between in-house, outsourced to specialist firms and outsourced to independent individual translators. Of these, specialist firms generally have much the poorest reputation - their translators often receive little training, and there is a high turnover of translators. (There are exceptions of course, some are small-scale operations headed by progressive patent attorneys). Independent translators have often been doing the job for quite some time, so are familiar with the ins and outs of the business, and are usually cheaper as well, but obviously quality can vary. In-house translations cost the most, but are often good, since (at least some) firms take a lot of effort in training their translators - keeping translators interested enough to be translating day-in and day-out for the several years required to gain basic proficiency in translating specifications and OAs can be a major undertaking. No firms likes to train a translator for several yaers and then see them vanish. Since a high proportion of translators here are women, this means such companies have to have unusually accommodating (for Japan) employment practices - such as not "encouraging" them to resign when they get preganant for instance, but rather granting them long-term leave. Small-scale companies in Japan are often not so enlightened...
ReplyDeleteRegards, Luke
Thanks for the comments. I had in mind the large costs of translating European patents into the many languages required for protection and enforcement in each member state. Since these would generally be done by native speakers of each language, outsourcing would be the normal option. The EPLA (and London Agreement) would ideally be able to reduce these costs significantly (though the devil is always in the detail). I would be interested to hear from any German attorney who thinks that the current system should be kept because it earns them money from translations.
ReplyDeleteDavid,
ReplyDeleteI think you will find that the patent attornies in countries like Germany and France will be able to earn a decent living dealing with "proper" patent matters, i.e. drafting, prosecution and litigation. In countries like Portugal, Spain etc., I think it is more likely that the proportion of an attorney's income derived from validation activities will be a lot higher.
So the question is whether there have been any noises from Portugese or Spanish attorneys about the proposed changes. I haven't heard any, but others may have.
ReplyDeleteWhile honoured to be called friend of the IPKat, I feel incisive may be pushing it. Although the potentially ambiguous use of the word "occasional" raised a self-effacing smile.
ReplyDeleteAnyway, just to mention the reason this article caught my eye. The anti-software patent lobby would have everyone believe that patent attorneys are pushing for the EPLA because they have a vested financial interest in it because it will "legalise software patents" (their words, not mine). Now patents attorneys have a vested financial interest in not seeing the EPLA go through. Maybe the fact that these seem to be mutually contradictory accusations highlights the lack of truth behind either of them.
If you read the original IAM blog, gerontius, you will find that it does not actually say anywhere that patent attorneys are opposed to the EPLA. It talks more generally about European patent reform, including the EPLA, the London Agreement and the Community patent. While some patent attorneys may support all three, there is plenty of evidence to suggest that many are opposed to the latter two at least because they have the potential to disrupt traditional income streams. The IAM piece also mentions patent lawyers and national patent offices, so should it should not be read as a dig at patent attorneys in any case.
ReplyDeleteDavid, let's examine how the "pie" gets divided up at the moment, between all those on the EPO Register. The Brits get the US work, and lay the translation off to others. The Germans get the Asian Applicants, and themselves translate into German. They get a lot of "stuff", if only because the Employee Inventor law of Germany (copied by Japan) obliges a) employee to disclose all to employer, in writing b) employer to claim ownership and c) (the tasty bit)employer to FILE a patent application on it. Ever wondered why there are so many "thin" patent applications coming out of DE, JP? The EPA's in all the other Member States get 1) their own local Applicants and 2) translation into their own language, but ONLY when i) the budget of Applicant stretches to covering more than DE and GB and ii) Applicant doesn't use a translation house to translate into FR, ES, IT,etc. So, who's doing well out of the present system? Who needs the translation work, to stay alive? Who's lobbying for it? The irony is that, because the translation costs are so high, Applicants simply don't validate in those countries where the translation income is what keeps the patent attorney firms in business. Life isn't fair, is it.
ReplyDelete