Recent Articles tagged patent translation translators & intellectual property services from LexMonitor

Admissibility of Telephonic Expert Witness Testimony by Foreign Language Translator/ Court Interpreter

translate@languagealliance.com (All Language Alliance, Inc.) — Sat, 10 May 2008 05:41:56 GMT

Although sometimes admissible, the use of telephonic expert witness testimony given by a foreign language translator or court interpreter is highly disfavored by the courts. In general, the courts are likely to apply the same standards of admissibility of telephonic...

The main issue that arises with using telephonic testimony is that of the Confrontation Clause found in the U.S. Constitution and many state constitutions. According to the Sixth Amendment of the U.S. Constitution, one has the right to confront a witness face to face.

However, for practicality reasons, the courts have generally held the right to confrontation is not absolute.

Specifically as to the relationship between telephonic testimony and the Confrontation Clause, the courts have ruled that according to certain public policies – such as the efficient use of court resources – the use of telephonic testimony may be compelled. This is particularly true when a witness is truly unavailable.

Although there is no set rule as to when telephonic testimony satisfies this public policy exception, in general it can be stated that the party moving to admit telephonic testimony must either:

a) Get a waiver of confrontation from the opposing party; or
b) Demonstrate that such testimony is necessary to further an important public policy and show the expert witness is truly unavailable as a witness*.

See State v. Jacob, 494 N.W.2d 109, 119 (1993); U.S. v. Jacobs, 97 F.3d 275 (8th Cir. 1996).

Determining the Unavailability of Foreign Language Translator/ Interpreter to Provide Expert Witness Testimony in Person- Telephonic Evidence

translate@languagealliance.com (All Language Alliance, Inc.) — Thu, 08 May 2008 17:27:10 GMT

Earlier we blogged about the admissibility of the telephonic expert witness testimony by a foreign language translator/ court interpreter. One key factor in a court’s decision to allow telephonic testimony is whether or not the witness is available. Thus, in order to admit foreign language translator testimony via telephone, a party must sufficiently demonstrate that in fact the foreign language translator/ interpreter is “truly unavailable”.

According to the Federal Rules of Evidence pertaining to admitting telephonic evidence, a witness is truly unavailable when it is shown that he/ she is unable to attend the hearing. Although the trial court has great discretion in determining whether or not a witness is able to attend a hearing, a common theme in many rulings is that a witness is truly unavailable when he or she lives outside the jurisdiction, and the need to travel to the hearing would be unreasonably burdensome to the witness.

See Beltran-Tirado v. INS, 213 F.3d 1179, 1186 (9th Cir. 2000); In re S.B., 639 N.W.2d 78, 83-84 (Neb. 2002); State v. Rosengren, 199 Ariz. 112, 116 14 P.3d 303, 307 (App. 2000).

Legal Document Translations, and Ethical Issues of Filing Privileged Foreign Language Documents: The Filing Attorney’s Side

translate@languagealliance.com (All Language Alliance, Inc.) — Sat, 03 May 2008 18:56:44 GMT

In the absence of English translation of foreign language documents filing mistakes can happen. During multilingual e-Discovery it is conceivable that privileged foreign language documents can be made available to the receiving party. Regardless of whether it is done inadvertently or on purpose, when privileged documents are disclosed during discovery, ethical issues not only rise for the receiving party but also for the disclosing party.

According to the ethics codes of most jurisdictions, a disclosure of privileged documents or information is a violation of the attorney-client privilege, meaning an attorney can face disciplinary action for an unethical breach of the attorney-client privilege.

Unlike the receiving party of the privileged documents, the disclosing attorney does not benefit from the “knowledge requirement”. In other words, attorneys who disclose privileged foreign language documents cannot argue they were unaware of the documents’ privileged nature because the documents were written in a foreign language.

The reason for this is because an attorney also has an ethical duty to zealously represent his client. As stated in a previous legal translation blog entry, this requires an attorney to fully understand all aspects of communicating with a foreign language-speaking client. Thus, the attorney has an ethical obligation to obtain a foreign language translation of all foreign language documents. His or her failure to do this, and the subsequent filing of a privileged document, is therefore a violation of both the attorney-client privilege and the duty for zealous representation.

See D.C. LEO 256 (1995); Maryland LEO 2000-04 (1999); In re Meador, 968 S.W.2d 346, 352 (Tex. 1998); Kondakjian v. Port Authority of New York and New Jersey, 1996 WL 139782 (S.D.N.Y. 1996); Brandt v. FDIC, 212 B.R. 386, 296 (Bankr. S.D. Fla. 1996).

To read our legal translation blog post "Language Translation and Ethical Issues of Filing Privileged Foreign Language Documents: The Receiving Attorney’s Side", click here.

Contact our legal translation company to retain bilingual licensed attorneys and/ or JDs, foreign language document reviewers and translators for Arabic, Chinese, Danish, Dutch, Farsi, Finnish, French, German, Hebrew, Hindi, Hungarian, Italian, Japanese, Korean, Norwegian, Russian, Spanish, Swedish, Turkish, Vietnamese, etc. document review.

Language Translation and Ethical Issues of Filing Privileged Foreign Language Documents: The Receiving Attorney’s Side

translate@languagealliance.com (All Language Alliance, Inc.) — Sat, 03 May 2008 18:55:07 GMT

Sometimes during multilingual discovery an attorney will inadvertently file a privileged document. This can happen with foreign language documents, especially when the English translation is not available. When this occurs, the receiving attorney has various ethical obligations as to how...

For example, some states hold an attorney can retain and actually use inadvertently produced documents reviewed and received in good faith. Other states require the attorney seek the guidance of the court. Yet other states require the attorney to return the document.

Of course, when the inadvertently filed document is in a foreign language, the receiving party often will not know of its privileged status unless a foreign language translation is done. Because the courts have ruled no ethical obligation arises until one becomes aware of the privileged nature of the foreign language document, an attorney should have a foreign language translation of the document and then, based on the translation, follow that particular jurisdiction’s ethical requirements.

Contact our legal translation agency to retain bilingual licensed attorneys and/ or JDs, foreign language document reviewers and translators for Arabic, Chinese, Danish, Dutch, Farsi, Finnish, French, German, Hebrew, Hindi, Hungarian, Italian, Japanese, Korean, Norwegian, Russian, Spanish, Swedish, Turkish, Vietnamese, etc. document review.

Language Translations and Registering a Foreign Language Trademark

translate@languagealliance.com (All Language Alliance, Inc.) — Mon, 28 Apr 2008 17:18:18 GMT

When applying for a trademark that contains a foreign language term or word, certain issues as to the meaning of the term may arise. This may become an obstacle to successfully obtaining the trademark when the foreign language term has...

If the desired word is or contains in part a foreign language term, as a general rule, the applicant should include a foreign language translation. If a foreign language translation is not included with the record, the examining attorney will most likely inquire into the foreign meaning of the word. 37 C.F.R. Section 2.61(b); T.M.E.P. Section 809.

Further, when making an application for a trademark of a foreign language word, the applicant must specifically indicate whether or not the term has any special meaning in the foreign language. To do this, a foreign language translation made by someone familiar with the language and its day-to-day use should be used. 37 C.F.R. Section 2.61(b).

To read our earlier legal translation blawg entry "Patent Translations, and Protecting Your Client’s Intellectual Property Both Here and Abroad", click
here.

And to read "Probative Value of Foreign Language Website Evidence, and Foreign Language Translation", click here.

Document Translation, Trade Marks and the Doctrine of Foreign Equivalents

translate@languagealliance.com (All Language Alliance, Inc.) — Mon, 28 Apr 2008 17:11:40 GMT

Language translation issues often come up in the context of foreign language words in trademarks. In a case involving vodka, the TTAB clarified its definition of the Doctrine of Equivalents by refusing to register the mark Moskovskaya. The central issue...

Although it was Russian vodka, the vodka in question did not originate in Moscow. However, the term Moskovskaya is Russian for “from Moscow”. The applicant argues that the meaning is not geographic in nature because the average American purchaser would not translate the mark into English. The examining attorney, on the other hand, argues that “under the doctrine of equivalents, the ordinary American purchaser refers to the ‘ordinary American purchaser who is knowledgeable in the foreign language,’ and will translate the mark into its English equivalent.”

In its ruling, the Board ruled the applicant was taking the definition of “ordinary American purchaser” out of context and instead agreed with the examining attorney, refusing to register the mark. Thus, when applying for a copyrighted mark, it is essential to bear in mind that an exact foreign language translation will be used by the court.

See In re Spirits International N.V., 86 USPQ2d 1078 (TTAB 2008).

Challenging Unfavorable Ruling Resulting from Unethical Use of Foreign Language Documentary Evidence

translate@languagealliance.com (All Language Alliance, Inc.) — Fri, 04 Apr 2008 17:49:17 GMT

Irrespective of the availability of foreign language legal document translations, various issues may come up in the context of foreign language evidence. What happens if an opposing party uses a foreign language document in an unethical manner and receives a favorable judgment because of it? Can the ruling be challenged, based on the unethical use of the document? If so, what is the standard of review?

The answer to the above questions is yes, so long as the challenging party is able to demonstrate:

1) The use of the foreign language documentary evidence was in fact unethical, and

2) The use of foreign language documentary evidence played a substantial role in the court reaching its decision.

To demonstrate an unethical use of a foreign language document, the challenging party must turn to that particular jurisdiction’s code of ethics. As each state’s code varies greatly, what is unethical in one state may be completely ethical in another. If the action is unethical, then there are grounds for appeal. (See, in general, Rico v. Mitsubishi Motors Corporation et al., Super. Ct. No. RCV39233 2007)

The next step is then to demonstrate that the unethical use of the foreign language document in fact played a substantial role in the court’s decision. Typically this is framed as a “But For” question, or “but for the unethical use of the foreign language document, the Court would not have reached the same unfavorable outcome”. If it is shown the unethical use of the foreign language document was the deciding factor in the court’s unfavorable ruling, then there are grounds for appeal. (Sufficiency of Evidence or Plain Error Standard of Review)

To read our earlier legal translation blog entry " Language Translation and Ethical Issues of Filing Privileged Foreign Language Documents: The Receiving Attorney’s Side", click here. And to read " Legal Document Translations, and Ethical Issues of Filing Privileged Foreign Language Documents: The Filing Attorney’s Side", click here.

Pharmaceutical Translations and the European Union’s Fast Track Approval Process for US Pharmaceuticals

translate@languagealliance.com (All Language Alliance, Inc.) — Fri, 04 Apr 2008 01:29:08 GMT

Recently the European Union issued a new, fast-track review process for approving foreign made pharmaceuticals to be sold in the European Union. Since the European Union operates under numerous languages, it is important that any application for pharmaceutical approval under the EMEA fast-track system be submitted with the proper foreign language translations. This becomes particularly important when trying to demonstrate the unmet need or improvement requirement under the Accelerated Assessment Procedure.

The Accelerated Assessment Procedure is administered by the European Medicines Agency (EMEA). In summary, a US drug maker can apply for accelerated assessment, if they can show that their product responds to an unmet medical need or constitutes a significant improvement over the available methods of prevention, diagnosis or treatment of a disease. If this standard is proved, under the fast-track process approval can be granted in as little as five months.

Although English is acceptable, it is common practice to also include, at the very least, a French foreign language translation of the application. Further, it should be noted that not all European countries are under the auspices of the EU or EMEA. Notable exceptions include Norway, Switzerland and many Eastern European countries.

To read our earlier legal translation blog post "Patent Translation Costs To Drop as France Ratifies London Agreement", click here.