One of the key selling points of the unitary patent is the savings on translations: in principle, the array of national translations required for the validation of a classic European patent (Article 65 of the EPC and the London Agreement) will be a thing of the past.
The principle: zero translation (eventually)
Eventually, no translation will be required to obtain unitary effect: the specification published by the EPO in the language of the proceedings (English, French, or German) will suffice (Article 3 of Regulation 1260/2012). One title, one language, period.
The transitional regime: one translation nonetheless
“Eventually” being the operative word. During a transitional period, a translation is still required to support the request for unitary effect (Article 6 of Regulation 1260/2012):
- if the language of the proceedings before the EPO was French or German: a full translation of the specification into English;
- if the language of the proceedings was English: a full translation into another official language of the Union (French, Spanish, Italian, etc., at the applicant’s choice).
This translation has no legal value and is provided for information purposes only (Article 6 of Regulation 1260/2012). In other words: a translation is required, but it is explicitly stated that the translation does not count. Such is the subtlety that the law is known for.
A defined duration
This transitional regime lasts for a minimum of six years and is subject to periodic evaluations by an expert committee; it may not, in any event, exceed twelve years (Article 6, paragraphs 3 and 5, of Regulation 1260/2012). The objective: to allow time for high-quality machine translation to become widespread before eliminating all translations.
Translation in case of litigation
Even after the end of the transitional regime, a translation may be requested in case of litigation (Article 4 of Regulation 1260/2012): at the request of the alleged infringer, in an official language of the state where the infringement occurred or where the infringer is domiciled; and at the request of the court, in its procedural language. The costs are borne by the proprietor. The judge will also take into account the good faith of a defendant (particularly an SME) who acted without knowledge of the patent due to the lack of an available translation.
The compensation mechanism
To avoid penalizing those who file in an official language of the Union other than English, French, or German, a mechanism for compensating translation costs is provided (Article 5 of Regulation 1260/2012): a flat-rate reimbursement (€500) reserved for SMEs, natural persons, non-profit organizations, universities, and public research bodies domiciled or having their principal establishment in a Member State of the Union. The details are available on the EPO’s Translation and Compensation page.