Opinion
And the Oscar goes to…
Well, this is not about an award, and it’s not like a linguist wouldn’t find anything to criticize about that one. But I really wish all German UPC divisions decided to structure and phrase their English-language decisions in a way where it is always clear at first sight whether the court is stating its own views on facts and law or paraphrasing a party’s position.
The way Judge-rapporteur Dr. Ingo Rinken handles this in Hologic v. Siemens Healthineers (PDF; discussed in the previous ip fray article) is a step in the right direction. If the UPC could try to at least meet that standard, it would be greatly appreciated by many other members of the UPC’s international audience.
What’s the problem about and how has Judge Dr. Rinken addressed it, not 100% but to a far greater extent than at least any similarly long German-authored English-language UPC judgments that we’ve seen?
Just yesterday I had a chat with a UPC user, a high-level decision-maker I won’t identify. We discussed an order of which he liked not only the operative part but, even more so, the reasons for which the court agreed with his company, among them a highly judgmental, positive statement. I don’t want to identify that other decision here.
The problem is that the highly judgmental statement the litigant liked was not the judge’s opinion. It was only a linguistically incorrect way to summarize that party’s arguments. It looked like a finding or holding by the court. It was meant to be indirect speech, but in a native English speaker’s ears it sounded like direct speech.
Theoretically, there was a way to know. There were headings within the order. That sentence was in a section clearly identified, by a heading, as the court’s summary of one party’s position. But when read on its own, without considering that context, it suggested that the court took the position in question.
The grammatical reason is that the German language offers three ways to indicate indirect speech, only the first two of which exist in English:
- Adverbs like “allegedly” or prepositional terms such as “according to” or “in …’s opinion” are a means of distancing oneself from what one is summarizing.
- All (at least all major) Western languages enable indirect speech through subclauses: “Plaintiff alleges that the defendant indirectly infringes the patent.” / “Die Klägerin trägt vor, dass die Beklagte das Patent mittelbar verletzt.”
- German additionally allows to indicate indirect speech through a subjunctive verb form: “Die Beklagte verletze das Patent mittelbar.” Native German speakers immediately notice that different grammatical form. The difference may appear subtle, but it isn’t: it’s a verb form that is not used much (and rarely for other purposes than indirect speech), which makes it striking. To some extent, French and Spanish enable this, just that they use the conditional form, which is yet more common than that special German subjunctive form.
German judges use the third one most of the time. Whether they then write in English or use machine translation, the result is the indicative form, and it’s simply wrong.
What compounds this problem is the way German judges traditionally structure their decisions. They tend to summarize the entirety of one party’s arguments; then all of the counterarguments; and finally they explain their decision. In German judgments, you sometimes find pages and pages with that “verletze” type of verb form. But a native German speaker always gets the signal that this is not necessarily the court’s position.
In English, a text becomes clumsy if one has to use subclauses, adverbs, and prepositional terms in every single sentence of a long very passage. That’s why even when German judges try to get it right, they sooner or later tend to revert to the mistake of using an unqualified indicative form.
Even that Dusseldorf judgment does it, but at least it is clearly structured, with terms like Claimant and Defendant capitalized and underlined, and with at least the first sentence of each paragraph containing signals of indirect speech such as “allege”, “are of the opinion”, “argue”, “contend”, “raise the following issue”, and so forth.
It could be that in some instances in which Hologic uses the indicative form in connection with summaries of party positions are actually just those in which the court considers something an undisputed and even incontrovertible fact, such as this:
“On 17 February 2009, a patent application was filed with the German Patent and Trade Mark Office and resulted in the grant of the German Patent DE 10 2009 009 052 B4 (hereinafter “DE ‘052”; cf. Exhibits B&B 8 and 8a). The Defendant 1 is the owner of DE ‘052 (cf. Exhibit B&B 9).”
Also this:
Under established German and UPC case law it would be necessary that a firm and final decision to use the form of alleged prior use took place before the priority date of the patent in suit.
Here, the word “would” does not clearly indicate indirect speech, even though that may have been the intention.
Issue-by-issue summaries of parties’ arguments work better
Unlike the traditional German style of discussing an entire party’s story in a single block, Hologic splits things up. It’s a 73-page decision. The plaintiff asked for a lot, and the sophisticated and deep-pocketed defendants threw in the kitchen sink. That’s why this structure was preferable regardless of issues relating to indirect speech.
I know that some German and other European judges don’t like the issue-by-issue approach. They feel that it fragments their documents. I’m not denying that there is bot an upside and a downside. But whether the upside outweighs the downside is specific to the language one uses.
In my opinion, it’s a huge downside when litigants or their counsel read a document and get confused as to who’s actually speaking.
Machine translation
There is nothing wrong with using machine translation (I am not taking a position on whether Hologic involved machine translation, but at least the way the word “auxiliary” is used does not suggest so), provided that one reviews and manually edits a machine translation. I do that quite often in English and French.
With indirect speech, the problem is that translation tools are not intelligent and creative enough to rewrite German indirect speech with the help of adverbs, prepositional terms, or subclauses.