The Irish government’s decision to postpone a referendum on the transfer of powers to the Unified Patent Court (UPC) delays Ireland’s ability to shape patent law and places Irish small-to-medium enterprises (SMEs) at a disadvantage, an intellectual property law expert has said.
Before the delay was announced, the referendum on whether the Irish Constitution should formally ratify the Agreement on a Unitary Patent Court (UPCA) had been planned for 7 June to coincide with the EU and local elections. A draft Bill for the UPCA had also been initiated by the Irish government.
The government has not provided any indication as to when the delayed referendum will take place.
The UPCA came into effect in June last year for 17 EU countries that ratified the agreement. If Ireland were to ratify the UPCA, it is expected that a local division of the UPC – a specialised patent court that adjudicates cases related to the infringement and validity of European unitary patents and classic European patents – would be established in Ireland.
Maureen Daly, a Dublin-based intellectual property law expert at Pinsent Masons, said having a local division court would play a significant role in the future of innovation and investment in Ireland.
“One of the key advantages of the streamlined UPC system is the cost-effectiveness it brings to litigating European patent disputes. By establishing a single litigation framework, the UPC aims to provide consistency in judicial decisions across all member states participating in the system. This unified approach facilitates efficient enforcement of patents and promotes harmonisation in patent-related matters within the participant countries,” she said.
“Having a local division would allow Ireland to act as a gateway to the UPC and would enhance its reputation as an attractive base for research and development activities. Given the UK’s non-participation in the UPC system post-Brexit, Ireland would be the only native English-speaking jurisdiction with a common law tradition. It is therefore in a unique position where it could influence UPC jurisprudence, not just through the work of the proposed local division, but also on the wider international stage,” she said.
Maureen Daly
Partner
Delaying Ireland’s entry deprives Irish SMEs from availing of the UPC system and accessing all the benefits that it provides. The delay could also affect Ireland’s reputation as a hub for innovation and technology.
According to Daly, the UPC – which also offers cost savings for patent owners in the form of a centralised renewal fee for patents and a streamlined registration process helping to cut down translation costs – would create a more efficient and cost-effective system for Irish companies and SMEs by offering patent protection across participating countries. Delaying the referendum indefinitely could have negative implications for Irish companies, as well as Ireland’s overall influence on the UPC.
“Delaying Ireland’s entry deprives Irish SMEs from availing of the UPC system and accessing all the benefits that it provides. Such companies would be at a competitive disadvantage as they would not be on a level playing field with businesses in other EU member states who have ratified the UPCA. The delay could also affect Ireland’s reputation as a hub for innovation and technology,” she said.
“In addition, any delay could potentially impact Ireland’s influence within the UPC framework as the only common law country in the UPC. Delayed participation weakens Ireland’s ability to shape patent law, harmonisation and judicial decisions in respect of the unitary patent.”
In the event of the Irish electorate rejecting the referendum, the status quo would be maintained, with Irish patentees having to register EU patents and validate them in each country in which they want to obtain protection. This would result in increased costs for Irish patentees to protect their inventions, Daly said.
“Patent litigation would remain fragmented across different national courts, increasing the costs and complexity of enforcement of patent rights, as well as challenges to patent validity,” she added.
“As the government has decided to defer the UPC referendum, it is important that it is not indefinitely adjourned. The Irish electorate should be afforded the opportunity to decide on Ireland’s participation in the UPC at the earliest opportunity because the longer time passes, the more difficult it will be for Ireland to exercise an influence over the direction of UPC law,” she said
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