Possible Strategies for the Translation of Foreign Patents
By Steve Vlasta Vitek

Translations (like wives) are seldom faithful if they are in the least attractive.
Roy Campbell, South African poet  

This article was published in the September 2001 issue of the ATA Chronicle,
the magazine of the American Translators Association.
www.atanet.org

Although the translation of patents from Japanese, German, and other languages into English for patent law firms is a busy field, this type of translation work is sometimes avoided by talented beginning translators because it has a reputation for being “difficult.” This article presents some thoughts on possible strategies that can be employed by translators, in particular relative beginners, in the patent translation field.

            Patent law firms often need English translations of patents for the purposes of litigation aimed at preventing an infringement of patent rights. In an effort to keep their costs down, sometimes these firms will request that “only the claims” of a patent be translated. It should be said that it is not really fair to ask a translator to translate only the claims of a patent, since this portion is usually the most complicated part. Some claims are written in a language that makes sense during the first reading, but some claims are about as easy to interpret as the smoke signals of a long lost civilization. To further complicate matters, often only the claims portion of a patent is faxed to a translator with no context or figures to help him or her understand their meaning. The language of the claims is sometime deliberately ambiguous in order to formulate a broad claim, even if the patent may typically provide only a relatively small and incremental improvement. Moreover, the legibility of a second or even third generation fax is often poor. This presents enormous problems, in particular when it is impossible to determine with any degree of certainty which characters are used in the Japanese text. 

In these situations it may sometimes seem as if the whole world is taking part in a general conspiracy against translators. We are often asked to do the impossible and are blamed for everything if we fail to produce a translation that is less than perfect, regardless of the difficult conditions under which we must work. As we all know, everything is always the fault of the translator. The adage “shoot the translator” is always the logical conclusion when things go wrong.

            On the other hand, it is understandable that clients of patent law firms, who are ultimately footing the bill, would not want to spend hundreds or thousands of dollars on the translation of entire patents that may or may not be relevant to a particular patented design. Despite this, it is still difficult, or impossible, to translate a cryptic section of text without any context. Fortunately, we can often find the context on our own without any help from our penny-wise clients.

Legible Text Of Patents Is Available For Free on Internet

The complete text of most published unexamined and examined Japanese patents (Kokai and Kokoku) can be downloaded or printed for free from the Japanese Patent Office (JPO) Website (www.jpo.go.jp) or from the European Patent Office (EPO) Website (www.ep.espacenet.com). The search page of the EPO site makes patents and utility models published in English, Japanese, German, and French in Adobe PDF format available to anyone. If you find it difficult to navigate the amazing quantity of information available on the European Patent Office or Japanese Patent Office Website, you can access the respective search pages on both sites from my Website (www.patenttranslators.comclick on the links “Find Japanese Patents [JPO]” or “Find Foreign Patents [EPO].”

Thanks to the online availability of patents in foreign languages, unlike a few years ago, we can now go and take a look at the entire text, including figures, whenever we are presented with a couple of poorly legible pages containing nearly incomprehensible and/or illegible claims. We can also quickly find other information online. The EPO Website, for example, not only contains the text of patents in languages such as German, French, and Japanese, but also a short English summary of the “Constitution of the Patent” that was filed in Japanese, German, French, and other languages. By simply typing in technical terms, we can do a field search for other patents containing the same design. One can also search for patents published by the same company, or under the name of the same inventor, which may have been published in languages such as English, Japanese, and German. This is very helpful not only for confirming the correct translation of technical terms, but also when patent lawyers request the translation of only the claim portion of a foreign language patent that was filed initially in English in U.S. or Europe.

Claims usually need to be changed in Japanese to comply with specifications for filing in Japan. These specifications are somewhat different from those in U.S. or Europe, as claims are generally defined more narrowly in Japan and more broadly in the United States. If we have the name of the inventor, and we can always find out the name if we have the correct patent number, we should be able to find the original patent that may have been filed in, for example, English or German.

However, translators are sometime also asked to translate the entire text of a Japanese patent that was filed originally in English and then translated by a Japanese patent lawyer (a benrishi) into Japanese. In these circumstances only the claim portion of the patent is usually changed, and the part “Effect (Operation) of the Invention” is sometime added to comply with Japanese patent laws. This probably happens either because U.S. patent lawyers don’t know that the rest of the Japanese patent will be essentially identical to the text in English, provided that the “benrishi” is a good translator, or because they want to know the exact wording in Japanese, regardless of the cost.                      

One Mistranslated Word In A Patent Can Cost A Manufacturer Millions

While most translations into Japanese are very good, or at least that has been my experience thus far, it is understandable that it is important for a law firm to try to find out as much as possible about the entire translation of a certain patent. And while translation costs represent a tiny fraction of the entire cost of patent litigation, a poor translation can cause immense problems. This is evidenced by an often cited case involving a patent infringement case, when the term “boron” was mistranslated in a chemical patent into Japanese by an incredibly sloppy translator (apparently a Japanese patent lawyer) as “bromine.” The patent holder lost the infringement case as a result of this translation error. Although the patent holder appealed the ruling, the appeal was denied because under Japanese patent law, a patent examiner must recognize from the invention’s description that the language used is clearly in error in light of the rest of the application.

            A quick search on the Internet that enables us to quickly find life saving context for isolated patent claims, which may be next to incomprehensible without the full text of the specifications and drawings, may thus prove invaluable. For example, as a rule Japanese does not specify singular or plural. Whether a certain term refers to one part or several parts (or a plurality of parts, if we want to sound like U.S. patent lawyers) can usually be determined only from figures showing labeled parts. The  EPO Website is particularly useful to patent translators because it displays the text of patents filed in English, Japanese, German, French, etc., with a short summary in English.

The English summary (which, in case of Japanese patents, is incidentally the same summary that is also available on the English part of the JPO Website, along with machine-translated portions of some relatively recent patents) is usually a translation of the patent part entitled “Constitution.” This section is generally located on the first page of the patent. This English summary is mostly written in fairly good or very good English if the original patent was written in German or French, but the English is often hard to understand and sometime quite hilarious when the original patent was written in Japanese. The choice of English words is often less than felicitous, and the structure of the English sentences in these summaries often mimics Japanese grammar to an extent that makes the meaning very hard to understand. Nevertheless, it is very useful when we can see how another translator, apparently a native Japanese translator with some background or experience in a given field, would translate relevant terms. Most of the time, these relevant terms are correct. Obviously, the problem is that native speakers of languages such as Japanese, Chinese, or Korean, which are very different from English, lack sufficient linguistic training or, judging from the results, perhaps even a basic aptitude for foreign languages. The people who write these summaries are probably not really translators by training, but rather engineers, chemists, etc., who “also know English.” The dilemma here is actually much bigger.

How Can We Be Native In Two Languages When We Live Only Once?

A good patent translator should be a native in both the source and target language (and when we examine the meaning of the word “native,” we find that what this really means is that he or she would have to be born at least twice in one lifetime). Also, he or she should also be a trained patent lawyer with a specialized degree, for instance a Ph.D. in chemistry or biology. In a way, this explains the sometime hilarious language of English summaries of Japanese patents published by official and respected institutions. Although there are exceptions confirming the rule, a good, fully bilingual patent lawyer (who can really translate Japanese patents into good English) is likely to stick to the practice of patent law, which tends to pay better than translation. Thus, the translation of patents into English tends to be practiced mostly by people who are not really qualified either as patent lawyers or as competent translators.

            What has changed in the last few years is the fact that translators, who are mainly linguists, now have immediate access via the Internet to all kinds of information that used to be available only to technical specialists in respective fields. It is exciting how the ease with which specialized information can now be accessed in any language has put a premium on the ability to access this information in more than one language and to make it available to monolingual technical specialists.

            The other part of a strategy that beginning patent translators may need to employ in order to tackle initially unfamiliar texts is the linguistic part. This area is generally more familiar to most translators, as it is not very different from what they learned or should have learned in school.

            The basic rule that a relative novice can follow when translating a foreign patent is the old golden rule: start from the simpler parts and do the most complicated part at the end. After 15 years of translating Japanese patents almost daily, with a generous sprinkling of German patents and a few in French, Czech, Slovak, Russian, and Polish thrown in for good measure, I still translate the claims, usually the most treacherous part of the job, at the end. I think that it is best to skip the claims and do them only when I understand the meaning of the text and thus the design of the patent. The reason why claims are at the beginning of Japanese patents but at the end of European patents, which is where they should be, is again very simple. Everything is usually the other way round in Japan, which includes the Japanese language and all things Japanese in general. Therefore, when translating a Japanese patent, it makes sense for us to somewhat modify the order and start from the title page, but then to skip the claims and work our way through the description of Prior Art (existing technology) and Preferred Embodiments (practical examples) back to the claims.

Nobody Thinks Quite Like The Japanese  - With The Possible Exception Of The Germans

Surprisingly, many components of the linguistic analysis techniques that I find useful for the translation of Japanese patents also work very well for German patents. The verb is at the end of the construction in Japanese, as it is in German. It is possible to string together several Japanese characters that are not normally used as independent words in Japanese, which is very similar to the way German compound nouns are used in technical terms.

The main problem, both in Japanese and German, is to make sure that the right link is established between the right components, in particular that the right nouns are connected to the right verbs. This link is indicated by the case of the noun, whether it is singular or plural, tense, etc., in German, but mostly only by particles (joshi) in Japanese. Sometime it is not as simple as it sounds, either in German or Japanese. There is an undeniable affinity between the psychology of the two languages and not surprisingly, I have heard Japanese people comment that they find it easier to get along with Germans than with other nationalities, including Americans. In long, extremely complex sentences, it is best to identify the subject or object first (the subject will be identified with particle “ga” and the object with particle “wo” in Japanese and by the case in German). If there is no subject in Japanese, it is tempting to use the topic, or “wadai,” as the subject in English. However, this often does not work because the “wadai” has a largely adverbial function in Japanese. The best “direct” translation of “wadai A” would be “as far as A is concerned.” This is also usually the worst possible translation to use in English. In other words, the most faithful translation is also the least attractive one, especially if this “as far as” or “with respect to” construction is used several times. This is a dead giveaway that the translator is an amateur who is not really sure how the Japanese parts of speech really belong together or what a clearly comprehensible English sentence looks like. If there is no subject (particle “ga”) or topic (particle “wa”) in Japanese, the “wadai” (topic) may be continued from a previous sentence. Sometimes it will be found several clauses or sentences back on the previous page or in the title of the entire section. But the topic can usually be found quite easily in the Japanese text, unless the text is written by a particularly poor and or/mean writer participating in the general conspiracy against translators mentioned earlier in this article.

“Patentese” Should Make Sense - It’s The Law!

Although what the writers of Japanese and German patents produce may seem at first glance completely incomprehensible, the text usually does make sense provided that one can keep in mind the underlying objective of the allegedly improved design. I find it very useful to create a mental image of the main task to be achieved by a patentfor instance, the design of a keyboard for a Japanese typewriter that crams about 3,000 Japanese characters on the keyboard of an English type of typewriter. I then go back to this mental image I have created for myself, often with the help of the figures contained in the patent, every time I seem lost in long convoluted sentences. It may seem silly, but it helps me when I try to connect the right verbs, hidden among the verbiage at the end of a hideously long sentence, with the right nouns. 

It is perhaps understandable that it should not be the job of patent lawyers to make their description simple to understand. If it was simple to understand, inventors could decide to write their own patents for their own inventions and patent lawyers might then have to look for a different job. As my wife once put it, a Japanese patent lawyer is a “muzukashii nihongo o kaku senmonka” (a specialist who specializes in writing difficult Japanese.) Nevertheless, it is their job to write the description in a way that makes sense, and our job is to figure out what they actually mean. According to patent law, patents should be written in such a way so that “a person with ordinary knowledge in the art” would be able to understand the description. Therefore, what is required from translators is “ordinary knowledge,” or an understanding of the basic concepts, rather than a detailed knowledge of the field in question.

To understand patent lawyers, we have to think like them. Instead of concentrating on words, words, and more words (as in how many words can I translate per hour), we have to try to keep in mind the gist of the design and the purpose of the patent. That is, a broad definition of a certain technique that, if copied by the competition, will provide evidence for a patent infringement lawsuit. In some cases, this so-called “ordinary knowledge of a person in art,” may be a very specialized language that is quite difficult to understand (in my case, for instance, the field of biotechnology or dentistry). On the other hand, even a patent describing a relatively complicated medical device (for instance, an angioplasty device) may have relatively few specialized medical terms, such as the names of heart muscles, while the remaining terminology will be quite simple even for a translator who is not used to this field. Because medical translation is not my specialty, when I am asked to translate a medical patent, I first take a good look at the text and then either translate the patent myself or, if the terminology is very complex, refer it to colleagues who are specialists in this field.

It’s A Dirty Job But Somebody’s Got To Do It

            The fact is that there are thousands of patents in foreign languages that need to be translated quickly, and only a limited number of translators who are able to translate them competently. Thus, the translation of patents represents a fairly reliable source of work for translators, especially those who translate from Japanese and German and are willing to invest the time and energy required to overcome the initial “learning period.” Patent translation is also very rewarding because in addition to having a constant source of work, often at higher rates than for other types of translation, patent translators are constantly learning through patents about the amazing machines and technologies in the world around them.

            And it is kind of gratifying to know that when we, translators, are learning in this way about the clever gizmos surrounding all of us wherever we go, unlike “civilians” (nontranslators), translators actually get paid for this.