5. Translations

Concerning the filing of a required translation of a European patent application, see in this chapter III.F.1.

Under Art. 14(4) EPC, if any required translation of a document filed in accordance with that provision is not supplied in due time (see R. 6(2) EPC), the document is deemed not to have been filed (cf. Art. 14(5) EPC 1973).

In T 323/87 (OJ 1989, 343), the translation of the notice of appeal required under Art. 14(4) EPC 1973 was not filed in due time in accordance with R. 6(2) EPC 1973. The notice of appeal was therefore deemed not to have been received (Art. 14(5) EPC 1973), and the appeal was held not to have been filed. See also T 193/87 (OJ 1993, 207), which concerned a notice of opposition.

However, in T 126/04 the board did not follow T 323/87 with respect to the legal consequence of failure to comply with the time limit. It held that the only possible interpretation of the reference in R. 65(1) EPC 1973 to R. 1(1) EPC 1973, which itself referred to Art. 14(4) EPC 1973, was that R. 65(1) EPC 1973 determined the legal consequence of failure to file a translation of the notice of appeal as required by Art. 14(4) EPC 1973. The legal consequence was therefore the inadmissibility of the appeal. It was not a case of conflict within the meaning of Art. 164(2) EPC 1973, since R. 65(1) EPC 1973 was a lex specialis. The provisions of R. 65(1) EPC 1973 are now to be found in R. 101(1) EPC, which does not refer to R. 3(1) EPC, the equivalent to R. 1(1) EPC 1973.

In T 170/83 (OJ 1984, 605) a debit order was filed in error in Dutch. The board held that Art. 14 EPC 1973 did not apply – a debit order did not have to contain text in a language at all, whilst remaining quite clear. The question whether a debit order in a non-official language was effective therefore did not arise.

In T 700/05, the board found that, taking into account that Euro-PCT applications were deemed by Art. 153(2) EPC to be European applications and the principle that they thus had to be treated as favourably as applications made in a contracting state, a PCT application originally filed in Japanese had to be treated in the same way as an application filed in the language of a contracting state which was not an official language of the EPC. Art. 14(2) EPC 1973 had thus to be applied by analogy to allow also the translation into English of an original PCT application in Japanese to be brought into conformity with the original Japanese text of the application throughout the proceedings before the EPO, i.e. including opposition and appeal proceedings. See also T 1483/10, T 2410/11, T 2202/19.

Shortly before the oral proceedings before the board in case T 265/11, the appellant (opponent) filed an uncertified translation of the claims of the international application underlying the patent. It argued that it was evident from this translation that certain features were different in the originally filed claims with respect to the English translation filed on entry into the European phase (Art. 158(2) EPC 1973), and requested that the newly filed translation be used as a basis for the analysis under Art. 123(2) EPC. The board affirmed that an international application for which the EPO is a designated or elected Office, and which has been accorded an international date of filing, is equivalent to a regular European application (Art. 150(3) EPC 1973; now Art. 153(2) EPC). R. 7 EPC 1973 applied mutatis mutandis to the translation filed under Art. 158(2) EPC 1973. As no evidence had been provided that the translation already on file was not in conformity with the original text of the application, the board, in accordance with R. 7 EPC 1973, assumed that translation to be in conformity with the original text of the application for the aforementioned purpose.

In T 1332/12, the board applied the same reasoning to admit a corrected (machine) translation, submitted by the patent proprietor, of a Japanese prior-art document which the opposing party had filed along with a – now contested – translation, as evidence of lack of inventive step. As to the provision of a translation of a crucial prior-art document in examination proceedings, see T 1343/12 and T 655/13.

Concerning translation points in relation to amendments see chapter II.E.1.2.3.