Friday, 10 May 2013

T 2422/10 – No Translation Needed

In this case the Board refused a request of simultaneous interpretation from German to the language of the proceedings (English) during the oral proceedings (OPs).

[1.1] According to R 4(1) “any party to OPs before the EPO may use an official language of the EPO other than the language of the proceedings, if such party gives notice to the EPO at least one month before the date of such OPs or provides for interpretation into the language of the proceedings.”

The appellant’s letter of 25 January 2013 with the indication of the use of German was filed in time and, consequently, the appellant was allowed to use this language during the OPs.

However, the respondent’s request of the same day for interpretation from German into English, although filed in due time, is to be rejected.

[1.2] It could be argued – as does the respondent – that if one party to proceedings before the EPO uses an official language different from the language of the proceedings, there shall be an interpretation from that other language into the language of the proceedings for the party/parties using the language of the proceedings.

However, this general rule needs to be set against the principle of efficiency of the proceedings and the duty of all services of the EPO, including the Boards of Appeal, to observe the finances of the EPO.

It is precisely for this purpose that R 4(5) states:
“The EPO shall, if necessary, provide at its own expense interpretation into the language of the proceedings, or, where appropriate, into its other official languages, unless such interpretation is the responsibility of one of the parties.”
It is the Board’s opinion that this wording of R 4(5) allows the Board to assess the necessity of such an interpretation. See in this respect T 131/07 [8.4] acknowledging such discretion

[1.3] The respondent’s professional representative is German and has submitted all substantive submissions in German (see the reply to the statement of grounds of appeal and the reply to the Board’s preliminary opinion). It is therefore evident that this representative is quite capable of understanding any oral submissions of the appellant’s professional representative at the OPs made in German without the need for interpretation. This was also admitted by the respondent’s representative at the beginning of the OPs.

In this respect the request for interpretation for the benefit of the representative is refused.

[1.4] A request for interpretation to the benefit of an accompanying person would not justify the arrangement of interpretation at the expenses of the EPO either because it is the Board’s opinion that accompanying persons do not by themselves have an automatic right to interpretation. This may for instance be dependent on whether the Board intends to let them address the Board, see in this respect T 131/07.

[1.4.1] As set out in its communication of 5 February 2013, the Board itself does not see a need to hear the accompanying person at the OPs.

[1.4.2] Decision G 4/95 sets out the conditions under which an accompanying person may be allowed to make oral submissions. In point (3)(a) of the order it is stated that “Such oral submissions cannot be made as a matter of right, but only with the permission of and under the discretion of the EPO.” The Board, therefore, has a discretional power to allow or not such submissions.

[1.4.3] The accompanying person for the respondent was announced as a technical expert to speak on “novelty and inventive step”. However (as indicated in the Board’s communication of 5 February 2013), these topics constitute the entire substantive issues of the case. These are, however, to be presented by the appointed professional representative in the context of European patent law. The accompanying person is, however, not presented as qualified in the latter or under training to become qualified.

Points (1) and (2) of the order of G 4/95 state that an accompanying person “may be allowed to make oral submissions on specific legal or technical issues on behalf of that party, otherwise than under A 117, in addition to the complete presentation of the party’s case by the professional representative.”

The Board understands this to mean that the topic on which the accompanying person will speak should be specific and should be an addition to the case as presented by the professional representative of the party.

Both conditions are not fulfilled in the present case, the Board therefore does not see any need to allow oral submissions of the person accompanying the respondent’s representative. See in this respect T 774/05 [5].

[1.4.4] The above being as it is, the Board does not see the need to provide for simultaneous interpretation from German to English for the accompanying person. In this respect it concurs with T 418/07 [6], that providing interpretation to suit merely the convenience of a party is not a sufficient reason.

[1.5] The respondent’s representative raised the question what would have happened if a colleague representative, not understanding German, would have attended the OPs instead of him.

It is, however, not the function of the Boards of Appeal to give rulings in their decisions on hypothetical situations or on questions not relevant to the case.

Should you wish to download the whole decision, just click here.

The file wrapper can be found here.


Roufousse T. Fairfly said...

Diese Entscheidung kann ich nachvollziehen. Will it influence examination proceedings?

In one of my cases a party needlessly requested interpreters. I was rather peeved. During a pause I told the group that they could go drink some coffee.

The specialists often come from out of town, and a full bilateral interpretation requires four interpreters, two in each direction. A complete set of documents must be provided for each of the translation pairs, and the interpreters are briefed by the examiners about the particulars of the case and its special terminology.

I'm amazed at the skills of interpreters. As an examiner I would listen at the parties, and see how the interpreters miraculously made sense of some truly Brandoesque mumbling.

In one occasion I recognized a group of interpreters I had worked with, and asked them about the outcome of the OP they were coming out of. Amazingly, none of them remembered any of the words they had translated only minutes earlier, I drew a complete blank.