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Referendum to be held on jurisdiction transfer for patent litigation

Ireland will hold a referendum on the proposed Unified Patent Court (UPC), the Minister for State for Trade Promotion, Digital and Company Regulation, Robert Troy, confirmed today. 

A vote will be necessary on the transfer of jurisdiction for all patent litigation from the Irish courts to a new international court.

Many in the business community believe Ireland should campaign to host a central division of the new court, which could yield huge economic benefits for this country.

The UPC is an EU initiative that will codify patent litigation in Europe. 

Original proposal

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

Paris, Munich and London were identified as potential homes for three Central Division courts. 

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

The proposed London court was to handle European patent disputes in the chemical, pharmaceutical, and life-sciences sectors. However, in February 2020, Britain announced that it would not be participating in the UPC.

With Britain’s departure from the EU, Ireland is well-positioned to step in, with its wealth of local and multinational sector-specific firms, with many attendant patents filed in these areas.

Patented medicines

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

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.

On 10 September, the UPC preparatory committee met electronically, and Ireland is now “fully engaged” in the discussions, following publication of a roadmap to address the legal issues raised by Britain’s departure, Minister Troy said today.

The UPC Agreement (UPCA) must be ratified by a minimum of 13 participating states, which must include the three states with the largest numbers of European patents in effect – originally France, Germany and Britain.

A constitutional challenge to the ratification was upheld in Germany, and re-ratification is now underway in that country.

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 in the EU.

Ireland has significant advantages for hosting a district of the UPC, as an English-speaking, common-law jurisdiction, and observers believe this country could become a popular destination for cases, given those factors.

Risk

Analyst at Atlantic IP Services Adam Mullooly told Gazette.ie this evening: "While it is encouraging that the Government is looking ahead to Ireland's role in the Unified Patent Court and planning a referendum, it is imperative that it also simultaneously campaigns for, and plans the logistics for, a Central Division.

"If the Government waits until after the referendum, there is a risk that the Central Division will already have gone elsewhere," he pointed out. 

Last week, Irish LED company Solas won a significant patent victory for an infringement of its control-circuit technology, when it secured an injunction against Sony and LG in a German court.

Under the new UPC, this company would have been able to take this action on Irish soil, with all the consequent benefits, both business and legal.

The UPC referendum vote is likely to be held in tandem with another vote, on a date as yet unspecified.