"I'm convinced that translation errors are rife in patent litigation, but they just happen to go undetected. A recent American paper on the topic indicated that translation errors may be important, but the authors basically couldn't find any actual examples from court cases. Dyson looks like it is such a case. True, Samsung only came away with claim 9 intact, but there is every chance they shouldn't have got that either. Perhaps more interestingly, Dyson are really leaving themselves to further attack open with that Sanyo reference, since it's not as poor as it was made out to be.
I'm currently discussing this case on the patent translation e-mailing list on yahoo groups, and trying to get a variety of views from experienced translators on their take on the critical passage. Hopefully I can synthesize the various threads at some point.
Anyway, the critical 1977 Sanyo reference was "in the agreed translation" (sic, whatever that means) held to disclose:
"Even if the air flows within the intermediate cover 11 through the turn guide pipe 17, a predetermined amount of dust still remaining in the air is caught by means of the fine filter 18."
The reference was essentially discounted because the skilled reader wouldn't know what to make of the words "fine" and "predetermined"; they render the passage non-sensical, and the general sense is incapable of clear interpretation. Hence being unavailable for an obviousness attack.
But neither of the critical words appear in the Japanese.
A first-stab translation is as follows:
"The air travels through the inner lid 11 via the swirl-guidance barrel 17, and due to the filter 18 disposed part-way along, some of the dust that is still contained in the air is captured."
This of course is entirely different from what was proferred in court. There is no conditional "if". The filter is just a filter, not a "fine" filter, so there is no reason to ask "why doesn't it clog?". Perhaps more importantly, there is no later contradiction that was held to exist with it requiring to be coarse. In fact, on page 3 it describes filter 18 specifically as being a *coarse* filter. And "predetermined" is simply a mistake for "some"; "some" making perfect sense in his invention, unlike "predetermined".
Thus the facts that the judge took into account are completely wrong - not one of the problems which he cited with the translation exists in the original.
As an aside, I must say the judge has to my mind a highly improper way of referring to the translation as if it is the original document. Does not the person skilled in the art know all languages, needing no translation service? Judges should be alive to the fact that any translation may contain errors. If a translated document looks to have some weird language usage, surely (surely!), the first thought should be to ask "is this translation up to scratch?" and not say, as happened in this case, that the skilled reader could reasonably "conclude that [the people who actually invented the technology] had not fully understood the technology"!
Bad facts lead to bad law, 'tis said..."
Saturday, 31 January 2009
Dyson again: prior art lost in translation
The Dyson decision (noted by PatLit here) is particularly interesting from the viewpoint of an ex-patent translation proofreader, writes Luke Ueda-Sarson, who says: