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Legal professionals are often unsure of how to proceed with
a translation of foreign prior art. Ordering a complete expert
translation is not always the best option, particularly when
budgets are tight. Alternatives to a complete translation
include machine translations, partial translations, draft
translations, discount translation services, and in-house
translations by your own secretaries, paralegals or attorneys.
Each of these options has merits, disadvantages, and risks.
This page looks at the advantages and disadvantages of each
of the options and makes some suggestions about how best to
navigate the options.
Contents
Do You Even Need a Translation?
Machine Translations
Using Bilingual In-House Staff
Discount Translation Services
Partial Translations
Draft Translations
What Are the Risks?
Conclusions
Do You Even Need a Translation?
The first step in choosing an option is to determine whether
a full or partial translation is actually necessary. It is
not uncommon for us to find that that an English language
equivalent (such as a published US national phase filing)
already exists for a foreign document that we have been asked
to translate. If you are working with a translation company
other than PTI, or doing a translation in-house, be sure to
check for equivalents, which can be found free of charge at
the EPO search site (ep.espacenet.com).
Likewise, I recently did a quality follow-up with a client
who had spent several thousand dollars on an expert translation.
"The quality was excellent," she told me, "but
it turned out to be something entirely different from what
we had thought it was, so we didn't actually use the translation."
For our client, that was an expensive way to find out. Some
cheaper ways of getting the gist of a foreign document are
described below.
Machine Translations
One fast, cheap way to find out what a document is about is
to use a machine translation (MT). For French and German,
the EPO now offers MT directly from its search site (ep.espacenet.com).
Just click on the "Description" or "Claims"
tab and then click on the "Translate" link at the
top right. The EPO system is new and sometimes malfunctions.
If that happens, you can always use a free third-party service
such as Babel Fish (world.altavista.com). The JPO also offers
machine translations of all its "A" Publications
from 1993 onwards. The JPO interface can be a bit tricky to
navigate, so you might want to read through the Patent Translations
Inc. guide to the JPO MT service at http://www.patenttranslations.com/jpo_tutorial.htm.
A machine translation may not take you very far, but it can
help you decide if the technology disclosed is actually related
to the technology that you are concerned with. I have also
been told that the USPTO is pretty good about accepting machine
translations as part of responses to office actions. For more
information on how useful machine translations are -- and
where their limitations lie -- see http://www.patenttranslations.com/jpo_tutorial_7.htm.
Using Bilingual In-House Staff
Larger law firms and corporations may be able to make use
of their own bilingual staff. If you have a secretary, paralegal
or attorney on staff who speaks the language in question,
you may be able to save considerable time and expense. However,
just as most inventors are not very good at drafting patent
specifications, most bilingual people are not very good at
translating. It's tempting to assume that translation is just
typing something out in another language, but in reality it
is a skill that takes years of study and practice to learn.
(For more information, see http://en.wikipedia.org/wiki/Translation#Misconceptions.)
There are, therefore, two risks in asking people who do not
normally translate to prepare a translation. One risk is that
the translation may be inaccurate or misleading. Remember
that to produce an accurate translation, the translator must
fully understand the content. If the staff member in question
is not completely comfortable with the subject matter, be
prepared to treat the translation as a rough indicator, rather
than as a definitive text.
Another risk is that it will be more expensive than outsourcing
the translation. If the staff member would otherwise be sitting
idle, and the reliability of the translation is not overly
important, having them prepare the translation may be cost-effective.
On the other hand, if a paralegal who happens to speak French
has a billing rate of $75/hour, and that paralegal translates
at 250 words per hour (a fairly fast rate for a casual translator
with a few years of experience) then the translation will
cost 30 cents per word. This is much more than you would typically
pay an agency for the work of an expert translator -- including
review by a second translator, editing, proofreading and professional
layout. If you regularly have translations done by in-house
staff, it is probably worth calculating your per-word costs
and comparing them with those of translation agencies. You
may be surprised by what you find.
Despite these risks, in-house staff can be a useful resource.
One excellent way to make use of bilingual staff is to explain
what it is that you are looking for (mention of a particular
type of element, or a particular procedure, for example) and
then ask them to read the foreign document and tell you whether
or not they find it. You can also ask them to simply tell
you what the document is about, before you decide whether
to pay for an expert translation.
Discount Translation Services
Discount translation services, which are usually based overseas
or rely on overseas translators, are increasingly common,
and can easily be found on the Web. Companies in China and
India may offer rates as low as three or four cents per word.
These translations are usually somewhat garbled and are prone
to problems such as omissions and hidden errors that result
from misunderstanding and guesswork. This means that, while
they are somewhat easier to read than machine translations,
they carry a much greater risk of being misleading. Nevertheless,
in cases where machine translation is not available, these
services offer an inexpensive way of grasping the general
gist of a document.
Partial Translations
Often enough, the relevant disclosure in a specification is
only a few lines long, while the rest of the text describes
matters that have no bearing on your case. The trouble is
that, merely by looking at a foreign publication, it is impossible
to guess where these sections are located -- if in fact they
exist at all.
However, by using machine translation or by asking a bilingual
colleague to look for the subject matter that you are interested
in, it is often possible to find the key sections in a document.
This can shrink a translation from several thousand words
to a hundred or fewer, which means obvious savings in time
and cost. If neither a machine translation nor a bilingual
colleague is available, you can also ask Patent Translations
Inc. to help you identify relevant sections. We would be happy
to help.
Draft Translations
Patent Translations Inc. normally subjects all its translations
to a four-step review, editing, proofreading and formatting
process. However, on request, we can provide the translation
as submitted by the expert translator without review or editing.
This service supplies you with faster and less-expensive translation
option when polished presentation and absolute reliability
are less important.
What Are the Risks?
The risks associated with failing to obtain an adequate translation
can be considerable and should always be determined by an
attorney. One example of translation risks is that, if the
translation is to be used for an IDS and the inventor speaks
the language in which the foreign document is written, there
may be inequitable conduct risks (http://www.wiggin.com/pubs/articles_abstract.asp?ID=13245512002)
associated with failing to supply an adequate translation.
If the document is prior art that has come to light during
the development of an invention or during litigation, the
greatest risk may be that of the attorney being misled as
to the scope of the disclosure. This can happen as the result
of omissions, or as the result of the translator using narrower
language than was used in the original. It is also possible
to be misled as to the technical ideas disclosed, as a result
of the translator not properly understanding those same ideas.
In the case of prosecution, it is easy to imagine such a misunderstanding
of the prior art causing the attorney to draft a patent that
is vulnerable to future challenges on the grounds of anticipation.
In the case of litigation, a possible risk is that of the
attorney failing to avail themselves of a strategy that would,
in fact, have succeeded, simply because they did not have
the confidence to make a necessary argument on the basis of
a poorly-executed translation.
In all cases, bad translations result in wasted attorney
time. An attorney may be able to read and understand a 5000-word
specification in an hour but, if the translation quality is
low and the attorney is required to second guess the translator
while constantly referring the drawings, that same task could
easily take three hours. The cost savings on the low-quality
translation would have to be very significant to make up for
the two hours of attorney time!
Lastly, if the translation will be presented to an examiner
or a jury in support of an argument, a poorly-executed translation
may not only fail to convince, but may also create a poor
impression and lower general confidence levels with regards
to all of the arguments being made. Likewise, law firms risk
impacting client satisfaction and confidence by presenting
translations that lack professionalism.
Conclusions
Not every foreign document requires a complete expert translation.
Before going ahead with a translation, it pays to check for
equivalents and to determine the content of the document.
You can get a rough idea of the content through machine translations,
talking to bilingual colleagues or using discount translation
services. In some cases, this will also let you determine
the specific sections of the document that require expert
translation. Nevertheless, it should be kept in mind that
inadequate translations can carry serious risks. In particular,
if the translation will be the basis for important decisions,
or will impact the way that your overall presentation is seen,
it is best to get a reliable expert translation.
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