| On patent translation || Jan 30, 2006 |
I am a patent attorney, registered with the U.S. Patent and Trademark Office (USPTO) and an ATA-certified EN>ES translator. I have my two-person Intellectual Property law firm in Greenville, South Carolina, and I am also a freelance EN>ES translator. Thus, I write patent applications (in English) and translate them (mainly, but not exclusively, to Spanish), a combo that is relatively easy to schedule. As a translator, having a PhD in Chemical Engineering, I translate mainly patent applications in the chemical and pharmaceutical "arts." As a patent attorney, having a two-person law firm, I usually, but not always, write patent applications for "better mousetraps."
First, let me clarify some misunderstandings of yours. Yes, indeed, inventors are not, as a general rule, linguistic-gifted persons. They know how things work, not how to explain it in words. Yet, also as a general rule, patent applications, in the U.S. at least, are written by patent attorneys who are lawyers whose undergraduate degrees are in the Science and Engineering areas. At a minimum, these applications are written by patent agents, engineers and scientists who have passed an examination prepared by the USPTO and, by their practice, know how to write. By and large, these individuals, patent attorneys and agents, have some special abilities, mainly the ability to use both sides of the brain. They can understand how things work and know how to explain that in words. If a patent application was not prepared by the inventor him/herself, there is no excuse about the writing. And, usually, inventors do not write their own patent applications.
Also, the claims section is usually modified during prosecution, as a give and take between the Patent Examiner, representing the USPTO and the general public, and the inventor's attorney. The inventor, through his or her attorney or agent, makes the claims as broad as possible. The Examiner forces the attorney or agent to do a reality check and to reduce the scope of the claims. It would be unlikely, and certainly risky, that the inventor writes the amendments to the claims.
Thus, it is not surprising that you have been asked to translate two sets of claims. They (the end-clients) may, by mistake, have sent you the original claims, as filed, and realizing their mistake, now they are asking you to translate, de novo, the new and final claims after being prosecuted in one country, so the patent application, originally filed in one country, can be filed in another, under the PCT rules.
You call the new claims a linguistic disaster. That may, or may not, be the case. I have seen, on these forums, a patent translator asking if he/she could divide a single long sentence in the claims section into two or more sentences. This approach, always very reasonable, in general translation, is a no-no in patent translation. As i am sure you know, each claim must be a single sentence. Only one period is allowed, per the USPTO rules. Thus, a "linguistic disaster" may be something that it is the result of the rules and the give and take that occurs during prosecution. Patent attorneys are forced to add elements to a claim to get that claim allowed.
Of course, I can't tell you for sure, without looking at the specific situation you are facing. And you might not be able to tell me because of the confidentiality agreement I am sure you signed before even seeing the document.
I would be glad to tell you whether the linguistic disaster is such a disaster, but have in mind that I can find in the USPTO database the document you are translating, if it has been published and you copy just a few words of the text.
In short, I don't know whether you have enough reasons to suspect some hanky-panky. In general, patent attorneys are not out to catch mistranslations but, certainly, they would not want to file them.
Please, contact me directly, if you need any help, always subject to your ability to tell others what you are translating.
[Edited at 2006-01-30 23:58]
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