by Dr. Frank Feller, Patent Attorney and Partner at Weickmann & Weickmann
In its decision of October 11th, 2018 (BPatG, 10W(pat) 23/17, BeckRS 2018, 36208), the Federal Patent Court states that the requirement of filing certificates for translations is incompatible with the general rules of law as derived from Art. 20 of the German Constitutional Law, and should therefore not be applied in practice. The decision proposes to cancel §14(I) PatV completely.
Specifically, the Federal Patent Court set out that the current certification requirements are disproportionate for two reasons: First, §14(I) PatV is actually not suitable for ensuring a certain level of quality and correctness of the translations. This is mainly due to the fact that there are no apparent legal consequences or sanctions in cases of false certifications furnished by a German patent attorney, even in cases of so-called “blind certifications” where the certifier was not capable of understanding both languages. Second, §14(I) PatV is not objectively necessary for its legal purpose. The key argument here is that translations required under Art. 22 (1) of the Patent Corporation Treatment for entering the German national phase of an international patent application are free from any burdens of certification. Nevertheless here is no indication whatsoever that German translations of PCT national phase applications, in actual practice, would have a lower quality than translations filed under §14(I) PatV. In this respect the court also pointed out that errors in the translations are usually detrimental the applicants itself rather than to the public. Thus the effect of ensuring correct translations could well be achieved by measures similar as required under the PCT which imply a much lower burden to the applicants.
As the Federal Patent Court deemed the decision about the validity of §14(I) PatV to be a question of major practical and legal importance, it asked the President of the German Patent and Trademark Office (which issued the Patent Regulation) to join the proceedings, and made its decision open for revision by the Federal Court of Justice where the case is currently pending. Since the general topic of reforming §14(I) PatV was raised in the legal community already in the year 2000, there are definitely signs that the Federal Court of Justice will follow the decision of the Patent Court. The implication of this would be that it would no longer be required to file any certificates for translations of German patent applications.
For the time being, it can currently not be completely excluded that defects in the certificate of a translation of a German patent application will pose a risk for the validity of the German patent application. Therefore, if any such risks are to be avoided, we recommend that the requirements of §14(I) PatV be strictly followed until the Federal Court of Justice has issued a final decision in this matter.