Friday, October 23, 2015

Translating Patents for Evidence and PCT Filing

Webinar presentation by Martin Cross

Review by Alicja Yarborough, PhD

As a part of ATA’s webinar series on October 1, 2015, Martin Cross presented “Translating Patents for Evidence and PCT Filing,” an overview of the methodology that can be used for both evidence and PCT filing, as well as the differences between these purposes. The handout included a chapter of his book on the same topic.

Martin began the webinar with a short illustrative anecdote describing what happens and what can go wrong when a patent attorney needs to prove that an idea for an invention is new, but some possibly relevant literature is published in a foreign language and thus needs to be translated in its entirety to see if the idea is original. He emphasized how important it is to reproduce the actual meaning of an invention—and that this means it can be done only through a literal translation.

Producing a literal translation
  1. Reproduce the meaning. Patents are usually very technical so you must understand the text well to reproduce the right meaning. There is often ambiguity in implication; therefore, you need to have a certain degree of knowledge to understand the text. This does not mean that you must have a master’s degree in the subject matter, though of course that helps; it means that you need to be able to research very well.
  2. Reproduce sentence breaks and carriage returns. A lot of translators like to break longer sentences to the short ones because they feel that it will be easier for the reader. Do not do this! A judge at patent proceedings may sometimes reject a translation without even looking at the content only because the sentence breaks are not in the same place as in the source document. The sentence is the fundamental unit in law, and it needs to be respected. The solution for this is: if you have a long sentence and you feel that it is difficult to track, use semicolons in the places where you would use periods and you will get the same effect yet respect the sentence. Keep the carriage returns where they are in the original, too. The carriage returns sometimes have a meaning in patents so it is best just leaving them alone.
  3. Be consistent with vocabulary and phrasing. This advice is generally true for any translation, but it is even more important in patent translation due to the specific ways that people read and analyze the patent. If you call an element “a shaft” in one instance, you should not call the same element “a rod” or “an axle” in another part of the translation. That rule applies to phrasing also. If you have a phrase in one place that is translated as “a shaft for driving a flywheel”, do not translate it in another place as “a shaft by which the flywheel is driven.” Terminology needs to be consistent throughout the whole document.
  4. Maintain one-to-one correspondence between the source and the target. This is where literal translation for patents may be different from literal translation for localization, for example. In practice, one-to-one translation means that a translator will be able to go to the courtroom and draw a diagram on a whiteboard, underline words in the source text, and draw an arrow to where it is translated in the target. This exercise shows that everything in the source text is shown in the target text, and that everything that is in the target source was in the source text. Imagine yourself in the courtroom and wanting to see if everything corresponds one-to-one. How does one do that?

Here is an example of one-to-one correspondence.

In French:
“Je m’appelle Martin et je suis traducteur”.
One-to-one (or mechanistic) reproduction:
“I call myself Martin and I am translator”.

This is what people usually think about as literally translated, as some sort of mechanistic rendering. It is not a good translation, however, because it does not convey the meaning very well. In English it implies that I call myself Martin, but my name is actually something else. In French we do not use indefinite articles before nouns, but in English it looks sloppy, as if it has not been proofread.

The correct translation is: “My name is Martin and I am a translator.”

The above is a literal translation using two techniques. The first is conservation of lexemes and second is equivalent phrasing. In patent translation, conservation of lexemes is used 95% of time. This is your plan A. For the remainder, it does not work. So then you go to plan B, which is equivalent phrasing. Conservation of lexemes is much easier to defend if you have to verify that your translation is in fact literal.

Lexemes and Function Words
Lexemes are basic units of meaning. Function words are grammatical glue that holds the lexemes together. Lexemes include nouns, verbs, adjectives, adverbs and numerals (for the purpose of patent translation). Function words are everything else; i.e., articles, pronouns, prepositions, postpositions (English word ago), conjunctions, auxiliary words, interjections, and particles and case markers in some languages. If the word is just grammatical, it is a function word. It does not have inherent meaning but rather connects words that have meaning: e.g., the, a, her, it, they, that, of, on, under, before, thereafter, thereby, and, but, for, so, unless, because, is, may, can, should, will, to, even, there.

Knowing this, we can adopt a methodology for literal translation where we have a one-to-one relationship between the source and the target texts. We do not introduce new lexemes and do not leave out any lexemes that are in the source text. However, we may use as much grammatical glue, the function words, as we like to produce grammatical sentences in the target text.

Example: “The quick brown fox jumped over the lazy dog.” Let’s pretend that this sentence is translated from or to another language. How we can preserve lexemes?
“Over the lazy dog jumped the quick brown fox.” This structure has the same meaning and the same lexemes, and the function words are the same, but we are not limited to them.
“The lazy dog was jumped over by the quick brown fox.” This has the same meaning even though we have different function words.
“The fox, which was quick and brown, jumped over the dog, which was lazy.” This has the same lexemes and the same meaning, but different order of function words. It still counts as one-to-one correspondence and a literal translation.
“The fox did jump, and did so over the dog, the fox being both quick and brown, while the dog was lazy.

In the last example, we have strayed from the style and the tone of the original sentence. This one is very wordy and sounds somewhat different. When you translate a patent it is best to stay as close as possible to the style and the tone of the original.

This demonstrates how much flexibility we have in literal translation, maintaining one-to-one correspondence with the lexemes in the source text.

Word and Phrase Order
For the nitrogen source, ammonium sulfate, ammonium chloride and the like can be used.” (in Japanese)
√ “Ammonium sulfate, ammonium chloride and the like can be used as the nitrogen source.” (in native English a one-to-one literal translation)
X “The nitrogen source can be chosen from ammonium sulfate, ammonium chloride and the like.” (not a literal translation)

The meaning is the same, but an attorney from the opposing side may ask you, “Where is the word ‘chosen’?” You may say that it is not there in Japanese, so you added it for clarity’s sake. The attorney could then challenge you by asking what else you inserted for clarity’s sake and how we can now tell that you are reproducing the source. It is the less secure way of translating.

When to Use Equivalent Phrasing
  • When the equivalent is very well established (usually but not always, when the equivalent is listed in the dictionary). When called upon in the court you can just pull out the dictionary. Additionally, if there is something clearly established by convention and you can show that.
  • When using source lexemes would lead to undue confusion, or create a highly unnatural style.

Established Equivalents:
For example, the French “l’homme du métier”, has the literal translation “man of the trade”; but this would not be understood in English. The correct English—“those skilled in the art”—is an established equivalent and would be understood by the target audience.

Another example is the Japanese heading: “Scope of Patent Claims”. In English, this should be “Claims”—a well-established phrase.

These are very clear examples of when we do not need to stick to the lexemes in the source language.

Translation for PCT Filing
All of these requirements are the same as in the case of evidence filing. The attorney may make a special amendment if he wishes it to be easier to read or to be consistent with current US patent practice.

The only difference is that we provide translator’s notes (no annotations and nothing in square brackets).

When translating for a PCT filing, favor more clarity of expression, smoothly flowing target text over strict conservation of lexemes. People just want to see what is says. Be sure that translation is for filing; not all PCT applications are for filing, so be sure to ask. If it is old (more than 30 months), then it is most likely not for filing.

Cross also discussed how to certify a translation, and who may do so. At the end of the webinar, there was a Q&A session led by Karen Tkaczyk, who also has extensive experience in translating patents. Great questions were asked and Cross gave clear answers. Any patent translator from beginner to intermediate will find the webinar recording valuable.

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