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Patent Translation Errors for Filing in China

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We all know how important a proper patent translation is when filing in a foreign country. A bad translation of patent claims and specifications may make a patent invalid or unenforceable. When dealing with Romance languages, the lexicology and grammar can be similar enough to get a word for word technical translation with occasional sentence restructuring. When translating into Chinese, the linguist must essentially rewrite the text based on the full understanding of the original, what we at McElroy call “transcreation.” Upon reading the translation of Chen Wenping’s article “Considering Patent Prosecution and Examination from the Perspective of Patent Litigation,” I came across a few of the common mistakes he’s witnessed in the translation of patents into Chinese.

In practice, however, it is common to find translation mistakes in patent specifications. Some translation mistakes, especially mistakes in the claims, may make the protection scope unclear, indefinite or different from what the applicant actually intended. Even worse, patent holders are not allowed to correct such translation errors after the issuance of a patent.

Chinese words do not take on a plural form as their English equivalents do, rather that translation must include “a plurality of” or “these” in order to convey a sense of plurality from English. According to Chen Wenping, these modifications tend to be omitted in a Chinese translation.

If the patent's improvement to the prior art lies in the change of “one layer” to “layers” in a device, then the omission of the modification with “a plurality of” in the Chinese translation would make the claimed invention cover the prior art and invalid for lack of novelty. In a later invalidation proceeding, the claim can only be amended based on the dependent claims, e.g., “two or three layers”. If there is no back-up dependent claim covering the number of “layers”, the entire patent would be invalid because of the poor translation.

When modifying a noun in Chinese, the modification must come before the noun, whereas in English, the modification can be after the noun if connected with the term (e.g., using "that" or "which"). Due to this issue, a linguist must have a full understanding of the subject of the invention in order to determine the object that is being modified.

 “For example, a claim in English reads “a DNA encoding protein X that has the sequence of SEQ ID NO.1”. SEQ ID NO.1 is the amino acid sequence of protein X. However, the modification “that has the sequence of SEQ ID NO.1” may be mistranslated to modify the DNA. The claim would read, according to the wrong translation, “a DNA having the sequence of SEQ ID NO.1 that encodes protein X”. This mistranslation, of course, would make the claimed scope of protection unclear.

Generally, chemical names have English and Chinese equivalents, but being able to accurately translate terms takes a skilled chemist familiar with the terminology. A mistranslation of a chemical term or name in a patent claim will change the protection scope from what the patentee initially meant to seek protection, making the patent unenforceable.

Moreover, some chemical names in English look very similar such as “methyl” and “ethyl” which differ from each other by only one letter. When they are contained in a long composite chemical name, confusion and mistranslation may happen.

Regardless of where you are filing a patent, you must be sure that the party or agency involved in the translation understands the nuances and terminology for your specific patent invention, the legal implications of filing the patent in said country, and of course, be a studied and experienced linguist in both source and target languages.

Click here to learn more about McElroy’s translation services for foreign patent filing, or contact us by email or phone at 1 800.531.9977.

Published - February 2011


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