In our March 1999 Newsletter (N.S. 190), we reported on the referral to the European Court of Justice of a case before the German Federal Patent Court in which BASF had challenged the requirement of German law that requires a translation into German of a European Patent of which the text is in English or French before the patent becomes effective in Germany. Such a requirement is permitted under the European Patent Convention and also exists in most other countries that are members of that Convention. The challenge was based on the argument that such requirement led to an artificial division within the European Union and so was contrary to the European Community Treaty.

The European Court of Justice did not accept BASF's argument. In its view, national laws requiring translation of European Patents before they become effective would only become a violation of the Treaty of Rome if distortions in the flow of patented goods that might result from differences in the patent situation in different countries arising from the translation requirement were clear and direct. The Court held that in fact the repercussions of the requirement were too uncertain and indirect for them to result in it being appropriate to hold the translation requirement to be unlawful.

The relatively high costs associated with translating European Patent Applications into the languages used in the various countries of Europe has long been an issue that has concerned patent applicants in Europe. As is reported elsewhere in this Newsletter, an Intergovernmental Conference on Revision of European Patent System has been convened to address this and other issues.