承接一个欧洲公司向中国申请发明专利的文件翻译单子，客户不厌其烦的发来很多参考资料、术语表，邮件上还长篇解释专利申请中重要词语的翻译，如Scope,Claims等等，刚刚又发来一个欧洲的案例：低质翻译导致的诉讼案件。虽然有些不胜其烦，但客户对质量的重视确实让人感动。

案件情况如下：

Portugal:
Danger of loose translations
Raul César Ferreira (Herd) Lda, Lisbon


The Commercial Court of Lisbon, the main Portuguese court dealing with patent matters, has recently handed down a decision, backed up after appeal by the Appeal Court of Lisbon, that is a serious warning about the quality of translations filed for the validation of European patents as a literal interpretation of bad translated claims can affect the scope of the protection.

On December 9 2004 Eli Lilly filed injunction proceedings against the generic company ratiopharm to stop it selling in Portugal the pharmaceutical product pergolide ratiopharm containing the active substance pergolide.

Eli Lilly claimed to be the owner of Portuguese patent PT 69172 (corresponding to US patent 4,166,182 and EP 003,667, long expired in several countries but still in force in Portugal) and also claimed that this patent is the basic patent for the manufacture of pergolide. Even though the Portuguese patent was a process patent it was equivalent to the first disclosure of the product and so there was a situation of reversal of the burden of proof.

ratiopharm lodged its opposition arguing that it used a different manufacturing process but also arguing, among other things, that the process claimed in PT 69172 does not produce pergolide if practised since the literal wording of claim 1 in that patent expressly excludes that substance. The synthesis process claimed in the corresponding patent EP 0,003,667 produces pergolide since it comprises a random sequence of four reaction steps (A, B, C and D).

Nevertheless, due to a translation mistake when translating and adapting the priority application (US patent 4,166,182) for the Portuguese application, Eli Lilly drew up claim 1 as containing three compulsory reaction steps (A, B and C) in any sequence and one optional step (D).

In the Portuguese version of the patent, PT 69172, it is written that the compulsory reaction steps are carried out in any sequence by reacting:

an alkylating agent when R2 is hydrogen;
a displacement agent of formula R3-Y-CH3, wherein Y is O, S or SO2; and R3 is an alkali metal or a quaternary ammonium radical;
a halogenation agent when X is hydrogen;
and optionally, (D) a hydrogenation agent when 2 is allyl or when a ¢8 or 9 bond is present.
The literal interpretation of claim 1 of PT 69172 by inserting the expression "and optionally" between the reaction steps (C) and (D) renders the compulsory introduction of a halogen atom in 2 position (in step C) and excludes from that instant the pergolide compound.

Eli Lilly argued that in dependent claims pergolide was specifically obtained by a process, depending on claim 1, where step C was not present. Eli Lilly defended that this should easily prove that when preparing/translating the application the word "or" should have been added at the end of the wording in step (B) in claim 1.

When analyzing this matter, the Commercial Court of Lisbon stated in its decision that "in view of the wording of claim 1 in PT 69172, bearing in mind the option of the last step (D), we must conclude, or rather the interpreter when confronted with same must conclude (even if he is a chemical expert), that the first three reaction steps are compulsory, even if in any sequence, and that only the last step is optional".

The Commercial Court of Lisbon made a strictly literal interpretation of the contents of the main independent claim of PT 69172 and concluded that the referred patent does not claim a pergolide synthesis process and, for that reason, it rejected the injunction proceedings filed by Eli Lilly against ratiopharm.

Eli Lilly lodged an appeal against the decision of the Commercial Court of Lisbon at the Appeal Court of Lisbon, but the second instance court rejected the appeal and kept, in its totality, the decision of the first instance court.

In view of the case law resulting from this decision of the Commercial Court of Lisbon, we strongly believe that translation of patent texts into the Portuguese language or the adaptation of foreign patents into national patents plays a vital role in defining the scope of patent protection.

If the applicant for or owner of a patent is not careful in the wording of the claims, as he should be, he can face a situation in which the relevant subject matter is excluded and, consequently, he is prevented from enforcing his exclusive right against third parties.