Thursday, February 16, 2023

Using English in the Unified Patent Court: effectiveness beats elegance -- thoughts and recommendations for in-house and outside counsel as well as policy makers

The use of English in continental European patent litigation is already widespread:

  • Most of the communication between in-house and outside counsel takes place in English.

  • Therefore, even mock trials and rehearsals are often performed in English.

  • Non-native speakers often plead to the Opposition Division and Boards of Appeal of the European Patent Office (EPO) in English.

  • Formally, both the oral and the written parts of German court proceedings must be in German, but patent infringement judges are increasingly flexible. For example, if a judge asks a foreign party representative about the prospects of a settlement, the answer will likely be given in English without a need for simultaneous interpretation.

The advent of the Unified Patent Court (UPC) will take this to the next level, not only because of Central Division proceedings but also because Art. 49 (2) of the UPC Agreement (UPCA) gives each contracting state the option of designating one or more of the EPO's official languages (English, French, German) as a language of proceedings before local or regional divisions. Furthermore, any judicial panel (at all levels of the UPC) "may ... dispense with translation requirements" (Art. 51 (1) UPCA).

Judge Dr. Matthias Zigann--who needs no introduction in the patent litigation community--and his colleague on the Munich Local Division, Judge Tobias Pichlmaier, would like the German federal government to exercise its option under Art. 49 (2) with respect to English. A few days ago, I told many people that I am in favor of that proposal and solicited input.

As someone who has no English-speaking parents and wasn't raised in an English-speaking country, but who is now primarily working in English and has watched a great many German patent trials, I'd like to share my thoughts here and make some recommendations for the various stakeholders.

  1. To anyone who has the ability to influence the German government's decision: make it clear to the patent policy officers in Berlin, and also to politicians if you have access, that there is no rational alternative for Germany to the designation of English as a language of proceedings. Otherwise the German UPC Local Divisions will be disadvantaged, and those venues will fall out of favor. They won't disappear into oblivion, but there is a considerable risk that the German Local Divisions would get a lower share of the overall UPC caseload than the present "market share" of German regional courts.

    If you talk to politicians and public servants, you'll be more diplomatic, but let me be blunt here: it's a Go Big or Go Home situation in which only one decision is responsible.

    Those German UPC Local Divisions will always need a third judge from a foreign country. The only native speaker of German who can help them out is Vienna-based Judge Walter Schober. I heard there are also some judges in other places (such as Slovenia) whose German may be sufficient, but make no mistake: the availability of foreign judges who can participate in German-language proceedings is going to be a severe bottleneck.

  2. I also recommended that a given candidate's proficiency in English should be part of the consideration when appointing UPC judges even to the extent that virtually or actually bilingual German patent jurists should be recruited as (even if only part-time) judges. I could particularly think of two German law professors.

  3. Based on my communication with local (Dusseldorf and Munich) patent litigation boutiques, it is clear that those firms--which the German government should particularly support--are all fired up for the UPC and ready to think global, act local. They'd rather see the Germany-based Local Divisions succeed than rely on an entrance barrier that could be a major turn-off relative to other venues.

  4. The picture is a little more nuanced when it comes to the German offices of global law firms. There appears to be some concern there that partners from other offices--including UK-based or even U.S. (!) patent litigators who may obtain an Irish bar admission under some mutual-recognition regime--could capitalize on their closeness to major U.S. clients and just appear as lead counsel in front of the German Local Divisions, either sidestepping or sidelining their local partners. But those fears are not a reason not to do what is in the interest of all other stakeholders.

    First, I don't think U.S. and other clients would act in their own best interest if they didn't insist on a substantial and first-chair involvement of local partners. Further below I'll explain why native-speaker lawyers won't necessarily be more effective. And the local players know the local judges' thinking best.

    Second, even if the local offices of a few global litigation firms lost a limited amount of business (which is a big "if" anyway), that downside would clearly be outweighed by the benefits to all other stakeholders, especially considering that some countries will offer English-language proceedings anyway.

  5. The world's lingua franca is not English. It's bad English as a journalist aptly put it. I would non-judgmentally call it English as a Second Language (ESL). Even in English-speaking countries, the language is increasingly shaped, or at least influenced, by non-native speakers. But in international enviroments such as the European Parliament, the English you hear there has distinct characteristics.

    The fact that the UPC will predominantly be an ESL court (and remain one even if the UK joins at a later stage) is something to bear in mind here. In the end, in-house and outside counsel want to win their cases--not linguistic awards. So let me share a few thoughts on what in-house counsel should (and should not) expect of the lawyers who deliver oral argument, and what outside counsel should focus on:

  6. Let me start with some recommended reading (or, optionally, listening). It's a National Public Radio piece that begins as follows:

    Picture this: A group of nonnative English speakers is in a room. There are people from Germany, Singapore, South Korea, Nigeria and France. They're having a great time speaking to each other in English, and communication is smooth.

    And then an American walks into the room. The American speaks quickly, using esoteric jargon ("let's take a holistic approach") and sports idioms ("you hit it out of the park!"). And the conversation trickles to a halt.

  7. When I have conversations with native speakers, I speak faster and use a wider vocabulary than with ESL speakers. In fact, that puts a strain on me and slows me down. I tend to speak really fast in English, German, and Spanish. Naturally. But with non-native English speakers, I'm always worried that I may use some idioms or rare words I picked up somewhere that my counterparts may not understand. I sacrifice fluency for effectiveness.

    As the NPR story notes, "definitions of 'good' and 'bad' English [from a native speaker's point of view] may be counterproductive if our goal is to communicate as effectively as possible."

    Effectiveness has always beaten elegance in a business or legal context. As in-house counsel with native or near-native English-language skills, don't ask yourselves whether your lawyers impress you: ask yourselves what works best. Just like messages can get "lost in translation", they may also get lost because of a judge not being familiar with a word or phrase.

    I've noticed that great American trial lawyers speak a different kind of English to juries (almost using what is called "restricted code") than to those smart and educated judges at pretrial hearings. I remember how Cravath's Evan Chesler explained Qualcomm's success story in San Diego. That was his opening statement during which the dispute with Apple was settled four years ago. There were passages that made him sound like a taxi driver ("up in La Jolla") more so than one of the very best trial lawyers in American history.

  8. With the UPC judges, it's not going to be a question of their level of education, but of their past exposition to English. Counsel will have to focus on the lowest common denominator of a panel of three judges. Unless and until you know from experience how well they understand English, you can base your initial operating assumptions on someone's country of origin (and then make adjustments as you see how it actually works):

    • There are some European countries in which movies and TV are not synchronized: the Nordic countries and the Netherlands. They only get subtitles. As a result, they understand pretty much everything, way beyond the words and phrases they use actively. Also, their languages (except Finnish) are as close to English as it gets.

    • Compared to Scandinavians and Dutch people, most Germans do not speak English even half as a well as they think. Just look at people's LinkedIn profiles and the levels of proficiency they indicate--they simply overestimate themselves. English is a Germanic language, which makes it a lot easier for Germans to learn English than it is for those whose native language is a Roman or Slavic language. Regrettably, the way English is taught in German schools is pathetic because it lacks a clear focus on conversational skills. Today's teens and twens have good access to English-language media. They tend to use English online and in real life to a hugely greater extent than their parents. But the judges you are going to plead to grew up at a different time and the country's educational system (which has been overrated for a long time as studies such as PISA and TIMSS show for other subjects) failed them.

    • Those whose native language is Roman or Slavic are particularly challenged. English is structurally very different from those groups of languages. And for a long time, a mix of excessive national pride and other cultural factors prevented people in certain Mediterranean countries from reaching a very high level of English-language skills. That has changed recently. Fortunately, there are positive exceptions among patent-specialized judges from those countries. Still, be aware of certain limitations.

  9. What is certainly not counterproductive is for lawyers to work on their transitions, such as the use of linking words. If you begin almost every sentence with "And" or "But", then you have to practice a diversity of ways to connect the points you make.

  10. Up to a certain level, syntactic variety will make you more persuasive but not harder to understand. This particularly applies in Germany: given the grammatical similarities between English and German, and the emphasis that German schools place on grammar (even in English), advanced structures are still understood and may enable you to state your positions more efficiently and compellingly.

  11. Native speakers pleading to ESL judges must be very careful about any cultural references, whether they quote literary works or movies or (as NPR mentioned in the piece I quoted above) sports. You can't assume that your audience will know the context, and even if a movie succeeded around the globe, the synchronized version may sound so different that your quote from the English original will not sound familiar. Soccer is similarly popular in Germany as in the UK, but don't expect German judges to know English soccer terminology.

  12. Pronunciation is another difficult topic. Non-native speakers particularly struggle to understand some British accents. While certain other accents such as what is called "Bavarian English" are not too pleasant on the ears of native speakers of English, continental European judges will actually find it easier to understand them than many native speakers. This applies even if speaker and listener are from different continental European countries. For an Eastern European or Mediterranean judge it will be easier to follow someone with a strong German accent than even the London version of English. However, it is absolutely desirable to get words phonetically correct. When I hear German lawyers quote from English-language patent descriptions and claims, I identify too many mistakes in that regard, and they should work on it.

  13. The use of ESL in UPC proceedings will have the positive effect of lawyers having to place an even greater emphasis on what they say as opposed to how they say it. Substance will matter more than style. In my observation, German patent infringement judges--particularly Judge Dr. Zigann--are not persuaded by rhetoric. They just filter it out.

  14. The lawyers who will be most effective in German UPC proceedings are those who are great explainers and who develop the best arguments, based on a thorough understanding of the technical aspects of the case (as opposed to just being briefed by other partners and by associates). Those who overrely on rhetoric in national courts will have a problem (for example, one who is usually a showman was absolutely not forceful--and did not come across as confident--when I heard him plead in English to an EPO opposition panel).

  15. Finally, I believe it would be desirable--though it would cost time and money--if English-language decisions authored by ESL rapporteurs could be copy-edited by a centralized "language service" of the kind they have in some EU institutions. Even if the UPC's Central Division could not or did not provide such a service, I would still advocate the use of English in UPC Local Divisions. The judges are going to get their points across. But non-native speakers will inevitably make mistakes, and some of those mistakes could result in a loss of clarity that could be avoided by having native speakers (or linguistically trained staff that is at the level of a native speaker) proofread their decisions prior to publication.

In a nutshell, the name of the game is not for lawyers to impress their clients with English-language skills, but to convince the judges (who typically aren't native speakers). Up to a certain level, better language skills will result in greater persuasiveness, but there comes a point where oversophistication will diminish someone's effectiveness. The same applies to pronunciation.