Technical Translation of Foreign Language Evidence in Patent Litigation Cases
We’ve blogged about the importance of professional legal translation services for patent law. Before the Patent Trial and Appeal Board (the “Board”), the Federal Rules of Evidence (“FRE”) govern the admissibility of evidence in most cases. But the Board has traditionally been conservative about granting motions to exclude evidence, with less than 4 percent of 122 motions being granted. Instead the Board may allow the admissibility of such evidence to go to the weight of the evidence, rather than excluding it outright.
One factor that may contribute to the low success rate of having motions to exclude granted could come from the fact the Board does not have to authorize these motions before they are filed.
The Board’s lack of propensity to exclude evidence comes from its stance that public policy is benefited by a complete record. The Board also takes care to prevent its rulings on motions to exclude from being appealed by carefully putting its reasons for its decisions on the record.
In one recent case, Zodiac Pool Systems, Inc. v. Aqua Products, Inc., IPR2013-00159, Paper 71, Aug. 22, 2014, the motion to exclude involved documents that, according to the Board, should have been translated. The documents in question included an engineering survey, nine French patent applications and three sealed envelopes submitted as proof of filing patent applications with the French patent office. Of those documents, the translation expert’s declaration was only submitted with one document, one of the sealed envelopes, although twelve documents were mentioned in the declaration. The owner of the patent filed the motion to exclude because English translations of French versions of the documents in question were not produced.
After the patent owner’s objection, the petitioner filed four additional documents which were also in French and not translated. The Board excluded portions of the documents that were not translated into English. Since motions to exclude are rarely granted by the Board, it obviously frowns on the admission of untranslated evidence.
Another recent case reached a similar conclusion. In Loftex v. Trident, 957 F.Supp. 375 (SDNY 2013), a party’s failure to amend its application to correct a translation error while the application was pending left the court with no option but to read that word out of the claim. The court relied on authority that says that courts “should not redraft claims to contradict their plain language in order to avoid a nonsensical result.” Even here, where the word requiring translation was “ramification” and may have a well-accepted meaning in one language, the court held that it was “illogical to assume that a person of ordinary skill could discern what that word signifies” when subject to a translation error.
Given the Board’s strong stance towards granting motions to exclude evidence, the fact that untranslated documents, or even one word, caused the Board to go against its usual position should be a lesson to those who choose to forego the proper translation of documents provided to the other party through discovery and, therefore, having the issue come before the Board.
Untranslated documents or text may, on their own or in combination with other reasons to exclude the evidence, prompt the Board’s decision to break with its historically conservative rulings.