Patent reform presents 'economic opportunity Ireland must pursue'

The Irish Government must maximise Ireland’s advantages as an English-speaking common law jurisdiction as EU patent law gets a radical shake-up, write Gerald Padian and Adam Mullooly, director and analyst at Atlantic IP Services.

Unified Patent Court (UPC) is an EU initiative that will codify patent litigation in Europe.

Goal

The initiative’s goal is to eventually replace all the individual national patent enforcement courts with distinct pan-European courts.

This means that inventors and patent owners will be able to enforce their patents across all of Europe without having to bring the same case in multiple jurisdictions. 

This will significantly reduce the cost and complexity of patent litigation on the continent.

On 10 September, the UPC preparatory committee met (electronically) for the first time since March 2017.

Ambitious project

Many observers believed that the constitutional challenge from Germany, coupled with the departure of the UK from the EU, would sink this ambitious project.

However, progress is being made on the legislation needed for ratification by the German parliament, and this could be approved as early as November.

That could then bring the UPC into effect as early as the first half of 2021.

There is strong political will within the EU to get this done and bring about serious patent reform.

The original proposal for a unified patent court was agreed on in 2013.

This proposal identified Paris, Munich and London as potential homes to three Central Division courts.

With the UK’s withdrawal, however, the UPC will need to find a new home for one of its courts.

Imperative

This creates an enormous opportunity for Ireland to step in. It is imperative that Ireland takes advantage of this current opening and applies to host a Central Division of the UPC.

This should be a priority for every Irish politician for three reasons.

Firstly, the proposed London court was intended to handle European patent disputes in the chemical, pharmaceutical and life sciences sectors.

Ireland has a wealth of local and multinational companies in these sectors, not to mention a significant number of patents filed in these areas.

Global name recognition

Secondly, it would build Ireland’s global name recognition as a country that generates and values innovation. 

Thirdly, and most importantly, the economic benefits for the country that hosts this court are huge and cannot be overstated. 

A full 87% of Irish personnel employed in the pharmaceutical industry are working on patented medicines.

With so many of the world’s top biotech and pharmaceutical companies operating in Ireland, such as Pfizer, Johnson & Johnson, Novartis and Amgen, in addition to homegrown companies such as Nuritas and ICON, they should be able to defend the validity of their patents here.

Innovation-friendly policies

Ireland’s innovation-friendly tax policies are well positioned to attract and retain these types of companies.

British consultants have estimated that London will lose between £600 million and £3 billion annually as a result of not being host to a Central Division of the UPC.

If Dublin were selected to replace London, that would be a huge boon to our economy.  Brexit and the coronavirus have wreaked havoc on the Irish economy; an opportunity like this must be vigorously pursued.

Originally, the Central Division courts were to be situated in the three countries that filed the greatest number of patents within their borders: France, Germany and the UK.

UPC’s Court of Appeals

However, Luxembourg, a country that files only a small number of patents each year, was selected to house the UPC’s Court of Appeals.

Given this, there can be little reservation about Ireland’s capacity to host one of the Central Division courts. 

The Italian government has already made an appeal to the preparatory committee for Milan to fill the Central Division court initially assigned to London.

Yet Ireland’s pharmaceutical exports are one third larger than Italy’s, and its pharmaceutical production is the same as the UK, making Ireland far more qualified to house this court.

In fact, 10% of all patents filed by Irish businesses and individuals last year were in the pharmaceutical sector, according to the European Patent Office (EPO).

Carol Plunket, consultant and IP strategist at William Fry, believes Ireland’s strong record in these sectors makes it an ideal location for a Central Division of the UPC.

"With the strength of our pharmaceutical, life sciences and medtech industries, Ireland is at the forefront of innovation in medical technology. It makes perfect sense for Ireland to look to establish the Central Division court here.

"From an economic standpoint especially, it is a no-brainer.”

Reputation

Irish patent attorney Anna Hally of the law firm Hanna Moore & Curley agrees: “In view of the country’s well-established international reputation in the life sciences and pharmaceutical sectors, Ireland should absolutely be considered as host to a Central Division court.

"Time is of the essence!”

John Whelan, partner and head of IP practice at A&L Goodbody, concurs: “Ireland's Commercial Court has already for many years been handling high-end patent litigation in the pharmaceutical and life sciences sectors, with Irish litigation often playing a pivotal role in a wider pan-European patent litigation strategy. 

"This, coupled with the fact that in recent years there have been significant appointments of very strong IP practitioners as judges to the Irish courts, makes Ireland an excellent environment for a Central Division court,” said Whelan.

Irish Senator Eugene Murphy believes that Ireland must apply to host this court.

He said: “Ireland should always seek to bring jobs and economic opportunity to our shores. Hosting a Central Division of the UPC in the West of Ireland would be a great way to do that.”

Italy is the only country to formally state its desire to host this Central Division court, but multiple sources report that the Netherlands and France are also interested. 

We have yet to see any concrete action from the Irish government, but they must step up and offer Ireland as the most appropriate site.

Ireland might be geographically located on the periphery of Europe, but politically, technologically and economically we are at its centre.

With the UK’s exit, Ireland will be the only common law, English-speaking country in the EU.

Ireland has a strong reputation across Europe and the world for judicial integrity and proficiency.

So, when the opportunity to host a major EU institution comes up, we must pursue it in every way possible and prove that Ireland is the perfect candidate.