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Referendum on patent court is set for June

The Government is to hold a constitutional referendum in June on Ireland’s participation in the Unified Patent Court.

The referendum will be held on the same day as the European and local elections.

The Government has also approved the priority drafting of a bill to give effect to the proposed constitutional amendment.

Simon Coveney (Minister for Enterprise, Trade and Employment) hopes to receive approval for its publication and its priority initiation in the Dáil “in the coming weeks”.

Amendment needed

The Agreement on a Unified Patent Court (UPCA), providing for the setting up of an international court between contracting states, was signed in February 2013 by 25 EU member states – including Ireland.

An amendment to article 29 of the Constitution to add the UPC agreement as an international agreement is needed before Ireland can join the UPC, as it involves a transfer of jurisdiction in patent litigation from the Irish courts to an international court.

The bill proposes to insert a new sub-section 11 in section 4 of article 29, providing that the State may ratify the 2013 agreement.

Ireland's 'unique position'

The UPC, which became operational on 1 June 2023, is a dedicated judicial system for litigating new unitary patents, and existing European patents that have not been specifically opted-out of the UPC’s jurisdiction.

Participation in the system is open to EU member states that have signed and ratified the UPC agreement in national law. Currently, 17 countries participate, with a number of other EU countries expected to ratify the deal – only Spain, Croatia and Poland have indicated that they will not participate.

Patent-litigation expert Karen Gallagher of Pinsent Masons in Dublin said last year that Ireland’s participation in the UPC system would further boost its reputation as an attractive destination for innovative companies to do business”.

“Given the UK’s non-participation in the UPC system post-Brexit, Ireland would be the only native English-speaking jurisdiction,” Gallagher said. “It is therefore poised to hold a significant and unique position, not just through the work of the proposed local division [of the UPC planned in Dublin], but also on the wider EU stage,” she added.

‘Substantial gains’

Business group IBEC welcomed the referendum announcement, saying that the agreement would provide “significant benefits” to Irish business.

Aidan Sweeney (head of enterprise and regulatory affairs) cited estimates that participation in the UPC could be worth as much as €1.66 billion a year to the Irish economy.

“Ireland is uniquely positioned to establish itself on the international stage as a patent-enforcement hotspot. Doing so could yield very substantial gains for the wider Irish economy, gains that would go far beyond an increase in legal services,” he stated.