In an intriguing development in the discussion of the impact of translation requirements on the costs of securing patent protection in Europe, the German Federal Patent Court has referred to the European Court of Justice the question of whether the requirement for translation of a European Patent at grant complies with Articles 30 and 36 of the Treaty of Rome. In the case in question, the German Patent Office ruled that a European Patent obtained by BASF was void in Germany because the German translation was not filed in time. BASF appealed to the Federal Patent Court. BASF's main argument was that the cost of translation prevents many patent holders from securing rights as broadly as they would wish. The effect of this is to split the European Union into "patent zones" and "free zones" with the consequences that (a) competitors of the patentee in the patent zone are discriminated against as compared to competitors in the free zone since the former cannot produce or market the patented product and (b) the patentee himself is inhibited from marketing in the "free zone" because of the EU's free flow of goods doctrine. The Court noting the recent discussions on translation costs and the results of a recent survey showing that 78% of respondents believed that European Patents should only have to be translated in their entirety if they became involved in litigation adopted a suggestion by the President of the German Patent Office that the question should be referred to the European Court of Justice.

Editor's note: See the update on this discussion in our June 2000 Newsletter (N.S. 192).