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Other considerations also come into play when considering patent translations, especially with the introduction of AI into the modern patent process.

When using AI for legal cases, third-party service providers can make errors because the technology is not aware of the cultural nuances at play. Literal translations are not necessarily accurate translations: the meaning of “domicile” in the U.K. in fact varies greatly from its meaning in some European countries.

Think of “I plead the fifth” — translating that word-for-word into another language can carry a very different connotation.

Patents can also suffer in multijurisdictional litigation from variance in company names on documentation, patent families that are disconnected due to what company owns it in a given country, differing or multiple applicant names for patents in the same family, and, simply, spelling errors, especially when it comes to proper names.  

Moreover, AI is unable to execute with the precision necessary in a document where every single word choice matters. That could mean overbroad or unclear claims, inconsistent terminology, and more: all grounds for patent rejection, or potential legal challenges.

For these reasons, use cases for AI, machine translation, and machine learning in patent processes remain limited, but are expected to grow over time as the technology matures and output quality improves.

Potential Errors of Patent Translation

Some of the potential errors found in patents include:

1. Unclear Claims

Relying on AI-only translations often leaves patent claims unclear, introducing potentially costly fixes to the patent process to ensure that a patent owner’s patent is granted. Welocalize provides in-country language specialists who can ensure your claims are accurately translated and succinct.

2. Inconsistent Terminology

To avoid unintended consequences, it’s crucial to be as consistent as possible when drafting. Terms should also be uniform throughout. It’s also critical that the use of the terms in the specification be consistent with the claim construction the patent owner wants.

In BTG International Limited v. Amneal Pharmaceuticals LLC, plaintiffs sued, arguing that a patent filing for Amneal Pharmaceuticals’ cancer treatment methods infringed an existing U.S. patent. The dispute centered on how the patent defined “treatment.” The patent holders argued treatment required prednisone to have an anti-cancer effect. The court disagreed, finding the patent allowed prednisone to either fight cancer or simply reduce side effects. This broader definition of “treatment” was then used by the court to uphold the Patent Trial and Appeal Board’s decision that the patent’s claims were obvious.

Welocalize can help IP rights holders avoid such a pitfall by ensuring that translations are consistent and accurate throughout the patent.

For example, when a pharmaceutical company was looking to protect its IP assets and ensure quality translations, it turned to Welocalize. Its patent portfolio was highly specialized with specific, technical source language, and it sought a single language manager that could ensure consistency across its multinational filings.

Implementing a team of linguists with Ph.D. and master’s-level expertise in the patented art, Welocalize seamlessly coordinated translation to review for overlapping verbiage and repeating text, ensuring consistency. Welocalize not only helped the company with translations, but also helped build translation assets that underpinned consistent language in its portfolio over time, mitigating future potential risk.

3. Lack of Full Disclosure of the Invention

An invention disclosure fails if it’s too vague or lacks enough detail. A good disclosure should be clear and precise enough for a skilled person in the field to actually build and use the invention, ensuring consistent and practical results. In the past, patent attorneys aimed for minimal disclosure; today, full and detailed disclosure is strictly enforced. Patent claims must align with the specification, ensuring there’s clarity surrounding inventions.    

In Columbia Insurance Company v. Simpson Strong-Tie Company Inc., a patent for a truss hanger design was challenged for lacking proper description. The key part of the patent required the extension portion to be sized to fit exactly two layers of drywall but not three. However, the patent itself only showed an example that fit exactly two layers. The appeals court upheld the challenge. Even though the patent claimed a range of sizes (between fitting two and not fitting three layers), the court found the description only supported fitting exactly two layers. In other words, someone skilled in this area wouldn’t be able to figure out how to make the hanger based on the patent’s description alone.

Welocalize ensures that patent translations accurately capture the full meaning of the claims involved to avoid disclosure issues when filing in foreign and domestic jurisdictions.

4. Use of “Means-Plus-Function” Language

Means-plus-function claiming flips the script on traditional patent claims. Instead of detailing the specific components (structure) of the invention, it focuses on what those components do (functionality). While this approach offers flexibility, it’s important to tread carefully.

Benefits include efficiently capturing various approaches to achieving a function and avoiding the need to list every single possibility. However, overuse of means-plus-function claims can be detrimental to the patent’s strength. The Federal Circuit, a key court in patent law, has become increasingly wary of overusing means-plus-function claims. Indeed, the rules for means-plus-function claiming also apply very differently when applied to software or computer-implemented technology.

The Federal Circuit has issued a series of decisions on software patents, often referred to as the “Algorithm Cases.” Two important examples are Noah Systems, Inc. v. Intuit, Inc. and Ergo Licensing, LLC v. CareFusion 303, Inc. Both cases involved similar issues regarding the validity of software patents that relied on means-plus-function claims. These claims were invalidated on the basis of indefiniteness, meaning they weren’t clear enough for others to understand the scope of the invention.

In Noah Systems, Plaintiff Noah Systems sued Intuit for infringing their patent on an automated accounting system. This system let users connect computers to share financial data. Noah claimed Intuit’s accounting software copied a key part of their patent: a special way computers access and manage files.

Both sides agreed this part used “means-plus-function” language, describing what the feature did but not how it worked. While the patent explained how to secure data access, it lacked details on how the system performed other functions mentioned in the claim. Intuit argued this made the patent invalid. The District Court agreed, finding the patent didn’t disclose an algorithm (a step-by-step process) for a crucial function, making the claims unclear. The Federal Circuit affirmed the District Court’s judgment.

At Welocalize, we provide the proper translations to assure that any means-plus-function language in your claims do not inadvertently limit the patent or invalidate it. r Our highly skilled team of linguists works closely to ensure that you get the most accurate and specific translation as required for your patents.

5. Missed Deadlines

Patent practitioners understand the importance of meeting deadlines, but some deadlines are more crucial than others. Rights holders in the United States who are considering a foreign patent filing must file first, before publicly disclosing their idea (known as the absolute novelty bar). In the U.S., inventors have a one year race period after your first public disclosure to file. However, earlier filing is recommended to avoid missing out on key inventions (prior art).

Other critical deadlines for rights holders include paying maintenance fees for patents. Failure to pay on time results in a lapse of the patent. In Europe, rights holders who hold a patent issued by the European Patent Office (EPO), must register their patent within 3 months. Registration can be completed in any one of the 38 EPO member states. This registration process is shortened to one month for holders of Unitary Patents, currently available in 17 EPO member states. Missing this deadline can result in loss of patent rights across Europe.

Restoring a European patent after a missed deadline is not a simple process. Most European countries require proof of “all due care.” This means showing you had strong systems in place to meet deadlines, but something unusual caused you to miss the payment.

To succeed, you’ll need a detailed explanation of what happened and evidence of a robust internal system for handling deadlines. This includes specifics like prompts, cross-checks, and even screenshots of your system. This information, typically in a declaration or witness statement with evidence attached, goes to the relevant patent office.

Welocalize works with your team to ensure compliance with priority deadlines. Welocalize has successfully delivered translations within three-week and five-week deadlines to clients striving to meet short regulatory deadlines.