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3 Essentials for Reducing Litigation Risk When Protecting IP

by Jeremy Coombs, PMP, MultiLing Senior Vice President of Operations

The world’s largest biotechnology companies file thousands of domestic and foreign patents each year to protect their valuable intellectual property. Unfortunately, the successful filing and issuance of a patent doesn’t ensure its safety. In fact, a poorly drafted patent—one with inaccurate or incomplete details and terminology from the start, before any translation begins—may result in patents being challenged in court by competition and ultimately invalidated.

To reduce the possibility of litigation long before it happens, companies must repeatedly implement best practices with a focus on quality from the start, including:

  • The quality of the patent itself;
  • The quality of the legal counsel; and
  • The quality of the translations that facilitate foreign patent filings aimed at protecting IP on a global scale.

Let’s look at these a little more closely:

Ensure Quality Patent Applications from the Start. Quality patent applications—with precise and specific terminology—ensure that the specific invention is covered accurately in the original language so subsequent translations begin from quality documents. Those drafting patent applications must know the market, the subject matter and the relevant inventions that have been patented previously and those that are in public domain.

Contract with Quality Legal Teams Familiar with Filing Processes. In addition to subject matter experts, only work with knowledgeable legal practitioners that are up to date with the current laws, rules and procedures in the jurisdictions in which you are seeking protection. Companies or inventors that understand the significance of inadvertent disclosure, for example, ensure that their legal team works closely with their R&D and marketing teams before making any information about the invention public. For example, an enterprise working with a large IP law firm learned this the hard way. The firm received an urgent call from the client just 24 hours before a presentation in Japan. Due to a lack of communication among product, legal and marketing teams, the enterprise needed a patent application translated and filed before disclosure to avoid losing its patent rights in various countries. Under great stress and at significant added costs, the firm completed the request, but this fire drill was a costly misstep for the enterprise.

Hire Expert Translators with Streamlined Quality Processes. Patent terminology plays a huge role in litigation, regardless of where the litigation originates. This is why all patent filings should be carefully and precisely drafted and then translated by specialized teams that include in-country native linguists, scientists and legal specialists who are familiar with the applicable technology. Ensure your patent translation service provider uses terminology management systems that will keep track of terms that may be less common, or that need to remain precise, and that are consistent across multiple languages in a streamlined database.

Even one misused word can leave a patent vulnerable to litigation, as well as create costly delays during the review of the patent application. For example, while European translations of chemical names can look very similar to English speakers, only an experienced chemist could employ the proper Chinese equivalent.
The difference of a single letter in English (e.g., “methyl” and “ethyl” in a long chemical name) changes the entire name of the chemical in Chinese. Having the wrong chemical in the translation can render that portion of the patent unenforceable.

Although the only way to eliminate the risk of litigation completely is to stop doing business altogether, this leaves the world with an obvious undesirable impact on growth, prosperity and continual change in commerce. Ensuring that quality documents are created by quality people, processes and technologies will go a long way in reducing overall risk and minimizing negative impact on enterprising business across the globe. This is especially critical as biotechnology companies continue to produce more and more IP that needs to be protected worldwide.