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Fisher Tool Co., Inc. v. Gillet Outillage

The U.S. 9th Circuit Court of Appeals issued an opinion the other day in a case that involved, among other things, an apparent mistranslation. Mécanisme à cliquet was translated into English as “ratchet mechanism,” a mistranslation the opinion claims “certainly isn’t clear on its face, since French-to-English dictionaries support it.” This is a case where cliquet is a broader term than ratchet; the French has several possible meanings, and the chosen translation did not fit the context.

It would be interesting to know whether the person translating the patent reviewed the figures, in which case he would have seen a “pawl” or “catch” — the intended meaning of the the French expression here — rather than ratchet, which, according to Wikipedia, is “a device that allows linear or rotary motion in only one direction, while preventing motion in the opposite direction,” i.e., a pawl plus other components.

The alleged mistranslation was part of Fisher’s suit claiming malicious prosecution (for a prior infringement case brought by Gillet), in which it argued that Gillet was aware of the the mistranslation and that the mistranslation invalidated the patent pursuant to 35 U.S.C. § 375(b), because it broadened the claim.

In the end, the translator was “off the hook” so to speak, as the judge found Gillet’s original case tenable and that it had probable cause to sue.

Translation pricing

When you talk price with someone who’s never bought translations before, there are frequently two reactions: laughter and then shock.

Laughter at the idea that translators charge by the word or that a penny higher or lower makes a big difference. For example, I was interviewed by SmartMoney.com about working with freelancers and the interviewer, Diana, chuckled a few times when I told her that talk among project managers will often sound like, “he’s only 11 cents… yeah but he’s not so great… she’s 13… really?.. is she worth it?.. well, she’s decent, but always busy; what’s your budget?” etc.

Shock at the total price. “It’s only a few pages!” Well, actually it’s 35 single-spaced pages from Korean to English. Although prices in the translation industry have generally been stagnant for years, I understand sticker shock, as I discussed in a previous post about misunderstood translation clients.

Which word?

In translation, we talk about source words and target words. Because source words are more easily countable these days, the trend in the industry is to price by the source word. In my segment — legal translation — per-target-word pricing still prevails but the industry-wide per-source word practice is slowly encroaching as more and more translators become accustomed to pricing that way.

Why not by the hour?

Corinne McKay added some great insights to this debate in a post a few months back, her conclusion being that good translators make out better overall when pricing by the word and that clients are better able to price their translations up front.

Bernie Bierman added a comment to Corinne’s post from his own article about how translator compensation has changed through the years. According to Bernie, “[t]he per-word unit has for at least one hundred years been the basis for determining a translator’s fee,” but Computer Aided Translation tools have completely changed the playing field and today’s translators are “like livestock marching in willing resignation and without protest to the slaughtering pens.” Strong words.

Will translators continue to make sense per word?

Technology is marching on and the translation industry is embracing it. If the efficient new translation model proposed by some in which texts are machine translated and then post-edited by a professional translator, who knows, maybe we’ll see translation priced by the hour, which is normally how editing is done. And if so, will those editors be paid more than today’s translators, or less?

Wictionary.org defines translatorese as: “(pejorative) Stilted or unidiomatic language produced by translation.” That doesn’t sound good.

However some contend there are certain types of documents and certain audiences where erring on the literal side is a safer bet. Not literature of course (ironically we can’t take literature literally as one of my grad school professors used to say). And not advertising or marketing. So which translations should be anything less than perfectly readable?

Well, none really. Translations need to be read, and struggling through clunky prose in any context can keep us from fully understanding the meaning of the original. But there are limits when it comes to transforming the original for the sake of style.

A translator’s creativity should at times be held to a minimum. Accuracy is paramount. And rendering a translation that is 100% accurate and reads as if it were written in the target language to begin with, while possible perhaps, would take far too long to produce, i.e, longer than most translators are afforded. Especially in certain language pairs.

And there are potential dangers if style is our ultimate goal. Readibility is easy. Just edit the translation until it reads well. If we’re not careful though, we can stray not only from the original structure but from its meaning, too. Thus in the time allotted, translators often have to strike a balance… and the balance often tips toward the literal.

Secondly, a client using translations from multiple translators will have headaches if one or more translators rework the text to such an extent that (1) referring back to the original will be difficult, and (2) piecing it together with other translations, impossible. This is especially true if an interpreter is using the translations or if references are made to other documents, which may already be translated.

Is there such thing as neutral Spanish?

This question has been asked time and time again in translation circles. To many Spanish speakers the very idea is laughable. When people from different Spanish speaking countries strike up a conversation, they recognize, often understand, and sometimes chuckle at, the words and expressions the other uses. But these regional terms rarely impede the conversation, and, although there are sometimes universal word choices that more easily bridge national divides, there is no manufactured Spanish language shared by all speakers.

For practical purposes, however, there is. And it consists not so much in creating words shared by all as it does eliminating words unique to just one locale. For translation customers, this is good news. If you want to market your products to various Spanish-speaking groups, you can save money by translating your advertising just once. Agencies and translators, although they sometimes discourage the practice — especially in the case of advertising, which many would claim should be “hyper-local” to be effective — increasingly honor this request and have become more adept at creating a neutralized language.

According to Guillermo Cabanellas de las Cuevas, in his article, Neutral Spanish: Is it Necessary? Does it Exist?, finding words without local flavor is not always possible. “Suppose that our hypothetical client wants to market peaches in the Spanish-speaking world. What word should he use on his cans? Melocotón (used in Spain and other countries) or durazno (used in Argentina and other countries, and even in certain parts of Spain)? There is no ‘neutrality’ for this conundrum. We cannot mix melocotón and durazno and get a ‘melozno’ or a ‘duracotón’.”

On the other hand, Prof. Isabel García Izquierdo, in her article highlights the fact that some see neutral Spanish “not as an artifice devoid of any identity. Instead, they see it as a way of bringing the 400 million speakers of Spanish closer together without losing their identity in the process.” The purpose of a Universal Spanish in this case, therefore, would not be market your products cheaper but to enrich understanding in the Spanish speaking world.

So why not Universal French? Or Universal English?

In all my years in translation, I’ve never received a request for Universal French. We translate for Canada or Switzerland or Belgium, or perhaps into “standard French” as the French and their Académie might have us call it. But the industry doesn’t seem to have coined the term “neutral French” as it has with Spanish.

And when we translate into English, we ask “British or American?” So what’s different between Spanish and other languages with regional differences?

The little I know so far

Despite the fact it takes a lot of work and the desired results can be slow in coming and difficult to measure, I like blogging. It’s a great exercise for those of us who have lots of thoughts and opinions we never took the time to jot down.

And since I began blogging a relatively short time ago, I’ve formulated a few thoughts about blogging itself. First, whether you blog for business or just to express yourself (I happen to do both), bloggers want to be read. Which is why many people judge their blog’s success by how many readers or subscribers they have.

Since I’ve been blogging I’ve started reading other blogs. Blogs not just about translation but about many things. Sometimes to learn something and sometimes just to see how they blog. I’ve even visited blogs about blogging; there are hundreds of them. These bloggers are professional bloggers. The blogger’s blogger, so to speak. Akin to a teacher who teaches teachers.

I’ve learned things from their “top 10 blogging tips” or “top 5 blogging no-nos.” I try to post on a regular basis. I try not to run off at the keyboard and do my best to keep posts relevant and interesting. I try to invite discussion. I like to get involved in discussions on other’s blogs; sharing our ideas in the larger blogging community is fun and educational, like wandering around a big party participating in the variety of smaller discussions. I’ve imported some widgets and plugins and have optimized my blog for search engines (fellow bloggers will know what I’m talking about).

For example, I recently loaded the plugin that gives a few buttons at the bottom of the post so readers can share it or bookmark on digg or technorati or in various other ways. By the way, for those of you who haven’t tried it, I like Stumble Upon, which not only lets you collect sites you like but allows you to, ahem, stumble upon others you might never have discovered. For example, here’s one of the fascinating articles I Stumbled Upon.

But most of us are not full time bloggers. We only blog about something else we do full time. So besides keeping up with our industry or hobby, we’re learning lots of little tricks about a new medium so we can share the stuff we really know about.

The downside about reading blogs about blogging is we can get blog envy — I know I’ve had it. Bloggers who blog about blogging or marketing or other popular topics tell us things like, “don’t worry, it takes time… it took more than a month before I got up to 5,000 hits a day.” Only a month? That’s a little like the school teacher listening to people in the corporate world comiserate about how this year’s bonus will be slightly smaller. And I admit to feeling a little envious when I see an uninteresting post receive 143 comments. But I’m not discouraged. My numbers are lower but, as I say, I like blogging.

But now I’m off the topic of my blog, which is usually on the “no-no” list. So what’s my point? No point other than to take a moment away from my main topic to discuss the new tool I’ve been using to communicate it, and to share a few thoughts with my fellow bloggers in my blogging community.

There is some confusion over what a Certificate of Accuracy is, who may issue it and under what circumstances it is required.

A certificate of accuracy is a statement in writing that claims, “I was qualified to do this translation and I believe it is faithful to the original.” It does not claim the translation is perfect (there’s no such thing as a perfect translation), nor that a different translator wouldn’t have a different take. Nor does it claim, at least in the United States, that a certified translator performed the translation. For more on certified translators (or the fact they don’t exist) see my previous post on the topic. So a certified translation simply means that a certificate is issued with the translation.

A request for a certificate, however, should put the translator or agency on notice that they’ll want to do a translation they can stand behind and defend if necessary. Many agencies now offer two levels of service: certified or “for informational purposes.” Certified translations often undergo the agency’s Quality Assurance process before getting the stamp of approval. Translations labeled “for informational purposes” or draft normally undergo a cursory QA, therefore they can save the client time and money. As an aside, draft translations should nonetheless be assigned to a translator that’s highly qualified in the relevant field. Just because it’s a draft doesn’t mean corners should be cut.

Certificates of accuracy can be issued by the translator who did the translation or by an agency. And even if an agency provides the translation, a client can request that the translator issue the certificate. The wording in this case will be different and will usually read something like, “I, Mary Translator, declare under penalty of perjury that I am fluent in language A and language B and that I performed this translation, which is accurate and complete to the best of my knowledge, etc.” Sometimes the qualifications, educational background, experience, etc., of the translator will be requested, too.

A certificate issued by an agency will be a bit different because the person signing it is not normally the translator. And if the agency has edited, proofread, or altered the translation, the translator should not approve it unless he has read it and agrees with it, in which case the wording of the certificate will need to be changed.

The agency’s certificate will read something like, “the attached is to the best of my knowledge a complete and accurate translation of the original document,” and will be notarized. As you lawyers know, the notary stamp on the certificate doesn’t support the accuracy of the translation, it only attests that the person signing is who he says he is.

Certificates of Accuracy are required when filing a translation with a court. Certain regulatory bodies in other countries may enforce the practice, too, and they are often required in the medical arena and other regulated industries. Essentially, unless you need the document for internal purposes — so that you can gleen the information in order to act on it — it’s safest to ask for a certified translation. Agencies often add a nominal processing fee for the certificate itself, but it’s usually worth it.

Follow-up on a recent post

The beginnings of a good discussion on a recent post, Getting Testy, made me want to dig a bit deeper into the issue. I know translation tests have already been debated ad nauseam on the web for years but mostly from the freelancer’s point of view. Our discussion included comments from an agency “tester” who essentially said, “Hey, quit your whining! If you want to work with us, show us you can really translate!”

The Masked Translator suggested paid tests; and he encouraged agencies not to announce them as tests. This would allow us to see the translator in his natural environment. And paying for the tests would certainly cut down on the frivilous type that are assigned automatically to every interested freelancer.

Many of you have probably read Andrei Gerasimov’s excellent article describing his discouraging experience with translation tests, as well as his follow-up that distinguishes tests that are useful from those that are useless.

Gerasimov’s conclusions, based on numerous contacts with agencies — some that tested and some that didn’t — were that agencies that test don’t have work for the applicant. The tests and other application forms are simply a way to get rid of the person. If they have work, they won’t send a test, but a job. Too cynical?

Maybe, but the prevalent belief that tests are an utter waste of time has inspired rallying calls on translator forums to stop taking tests altogether. The tone of the messages is, “We’re professionals. Let’s stand as a group and reject this waste of our time.” Of course, a fight like this is tough to inspire or maintain.

But I’m certain my call to agencies to rethink their application process would be even less successful. Selective agencies know that many people who claim to be translators are simply unqualified. Some should pursue another profession entirely despite their sterling resumes. But to find those who are good, test and take it seriously. Why test if you don’t plan on evaluating? And if you evaluate, try to provide results and feedback.

As we grow, compete and globalize, we seem to know our translators — their expertise, strengths, depth of knowledge, flaws, work habits, dedication — even less. And increasing the amount of paperwork not only doesn’t solve the problem, it creates suspicion and ill will toward all agencies.

If it smells like legalese, it must be…

I’ve mentioned Wayne Schiess’ blog in the past because, although translators are often good writers (as I argued in an earlier post, writing is the translator’s most marketable skill), they gain a lot from writing tips from within their industry’s specialty. The point of Mr. Schiess’ blog, if you haven’t read it, is to encourage attorneys to write in plain English instead of making their writing “smell” legal by using fancy legalese.

Let me take this opportunity to point out Jennifer Alvey’s new blog, Word Solutions, which also picks up this idea from Wayne Scheiss. Having graduated from Duke Law School, and with 15 years experience in law and publishing, I expect we’ll be reading some more language tips from Jennifer. She has a good tip that could apply to translators too: keep your legal reading vocabulary and legal writing vocabulary separate, so one does not contaminate the other.

I have been guilty of using legalese when a plainer term was available. It’s so easy to do as a translator when you read a lot of it. Young attorneys perpetuate legalese, and translators perpetuate translatorese. Often we translators don’t feel it’s our responsibility to replace these old words, especially when they seem to be fine equivalents of old words in another language. And it’s not our place, really. We don’t make the news, we just translate it.

Not only that, but we translators are forced to be more cautious than the attorney who drafted the document in the first place. For example, instead of using “hereinabove,” Wayne suggests “specify what you are referring to and where it can be found.” The translator doesn’t have that luxury and has to stay as vague as the source. And when he tells us to just do away with terms like “witnesseth,” the translator would prefer to stay safe and represent all the antique terms, and tone, of the original.

At the same time, the reason we have to keep up with language developments like the plain-language trend in legal writing is because we develop habits, some of them bad. As translators, we build these automatic lists of equivalent terms in our brains, terms we haven’t had to look up in years. And it helps us go faster and remain consistent. But the industry we’re translating for evolves and we have to make sure we update our brain’s auto-list as necessary.

Translation tests in today’s market

Nothing seems to rile translators more these days than the translation tests requested so frequently by agencies. There’s vitriol in abundance on almost every translator forum and blog I read. Why?

Well I’ve never been on the receiving end of one of these requests so I’m just going to guess. Translators are busy. The tests are too long to be done for free. They want to spend their time doing translations that pay. They don’t feel they have to prove anything to a new agency, especially one that doesn’t seem to understand that translation tests are essentially worthless. And worst of all, they suspect the agency might be trying to piece together a translation for nothing.

Agencies test for various reasons. Some of us try to pack our databases with good translators for every possible language pair and subject matter. And because we never know what the next project will look like, we can never have enough reliable translators. If our first-string is busy, or second or third, we have to either refuse the job or begin calling unknowns. And as far as I’m aware, most larger agencies aren’t about to refuse a job. So the first reason for testing is to have enough decent people on hand just in case. And the only way to know if they’re decent is to test ‘em.

Another reason to test is not simply to know if a translator is “acceptable” but to mesure the person’s skills against others. The reason for this may be to give them an in-house rating like A-list, B-list, etc., or to toss them out entirely if they are not stellar. This is a practice that primarily fits the boutique translation agency, i.e., one that charges higher prices, accepts jobs only in its niche and language pairs, and places a higher priority on quality than some of the one-stop shops.

The third reason to test is the most practical. The agency is trying to win a bid from a competing company by convincing the client of its quality. The client often initiates the request in this situation. The agency then calls its top translator in that pair and specialty and proceeds to have the piece edited and re-edited, proofread and re-proofread, checked and re-checked, and then submits it to the client, hoping to get the job.

Often in this whole bidding process, the agency fails to mention one very important thing to the potential client: our translators are freelancers (many believe the agency has a room full of staff translators standing by), and the person who did such a good job on the test may not be available to do the full translation. By withholding this information, the agency is trying to gloss over the fact that the translator is not, in fact, on staff, and is essentially claiming, “we can produce this level of translation.” But this is dishonest. Dishonest to the client and often dishonest to the translator, because reasons for testing in general are often not shared with the translator at all.

The right way to do this is to get the full details on the scope of the job; find a translator and editor at the top of your list, and; guarantee the client that this same translation team will work on the project if we can be somewhat flexible with their schedule. This is risky of course because for some clients, shifting their deadline constitutes a nonstarter.

As for the suspicion that agencies are trying to piece together a large translation for free, I only hope this is an urban myth. I really can’t imagine any company resorting to this tactic and surviving for too long.

Acronyms pose a special problem for translators. They are hard to research because they often refer to specialized industry jargon or internal corporate processes. The internet has many resources for terminology research and pages devoted to acronyms but it can still be a hit-or-miss pursuit. As translators, we’re responsible for leaving no stone unturned in our translations, including deciphering all the acronyms.

Searching for an isolated acronym in Google can lead us on a wild goose chase because it doesn’t provide enough context and a two-letter or three-letter acronym often stands for several things. But if we have the name of a company and are able to put it in the search line together with one or two undeciphered acronyms, or alongside other operative terms, it should point us toward the context we’re looking for. For example, googling “siemens ecg lms” (don’t use the quotes in your search) will quickly bring us to pages where we’ll discover that ECG is Electronic Control Gear and LMS is Lighting Management Systems.

Also, we should not pretend just because we’re supposed to figure out what a document says that we know the inner workings of the parties involved in a document more than our client does. We should ask the client (or ask the agency to ask the client) about unresolved acronyms. Attorneys often work on cases for months or years and they’re likely to have come accross the terms in the past.

Now, once we’ve figured out our acronyms, they should be handled in one of three ways:

1. If an acronym is a company name and untranslatable like BNP, the first time it appears, reproduce the acronym followed by brackets with the full name spelled out: BNP [Banque Nationale de Paris]. Thereafter, use BNP alone;
2. If a foreign acronym has a standard equivalent in English, e.g., TVA -> VAT, use the English throughout the translation;
3. If the foreign acronym is translatable, e.g., MADD (Médias africains et développement durable), the first time the term appears, write the acronym followed by brackets with both the original name and the translation separated by a slash: MADD [Médias africains et développement durable/African media and sustainable development]. Thereafter, use the foreign acronym alone.

After all your research, you may not be able to find all of the acronyms you’re looking for. If you can’t, make sure you alert your client, and preferably well before the deadline so that he or she has time to resolve the issues or communicate them with the end client.