Ireland must act soon on an EU-wide patent court referendum


The government has committed to holding a referendum on a new EU-wide patent court in 2023 or 2024. But firms warn that Ireland could lose foreign investment if it doesn’t act sooner.

It has been almost a decade since Ireland first applied to participate in the EU Unitary Patent and Unified Patent Court (UPC).

The system allows companies to apply for a patent across the EU – saving money on legal and translation costs – and fight infringements in each participating country through local divisions of the UPC.

In Ireland it requires a referendum as it delegates some powers from the High Court, although it will not affect patents granted by the Intellectual Property Office of Ireland.

Tánaiste Leo Varadkar said this week that the joint patent and court would be “good for business and for SMEs” and would “save money and time and give more security to all parties”.

The Enterprise Department said it could boost Irish companies’ exports and free up more money for research and development.

This was recently announced by the Westmeath-based pharmaceutical company Alkermes Irish Independent that it would be “a major draw for multinationals.”

The Ibec group of companies estimates that the establishment of an Irish courts department could contribute between €415 million and €1.7 billion per year to economic activity. However, these advantages depend on how quickly it is set up.

“We need a clear timeline that reflects the urgency of the opportunity at stake,” said Aidan Sweeney, Head of Enterprise and Regulatory Affairs at Ibec. “A slow start to implementation will prove costly and will prevent us from realizing the full potential of the unitary patent system.

“Active preparations for the new court are underway, so Ireland needs to hold a referendum at the earliest opportunity.”

To date, 24 EU countries, including Ireland, have joined the unitary patent system, 16 of which have ratified or provisionally requested the Patent Court.

It was agreed under an EU treaty provision known as enhanced cooperation – the same mechanism France wants to use to remove national vetoes over corporate taxes.

The court is due to start work later this year after Germany has fully ratified it. Cyprus, the Czech Republic, Greece, Hungary, Romania and Slovakia have also signed the UPC agreement but have yet to formally ratify it.

Without a quick decision, Ireland will be excluded from talks on the court’s budget and its 90-seat bench. Interviews are scheduled to begin this week.

The UPC must also decide where to locate a “central division” for patents in the life sciences, which London was promised before Brexit.

Milan and Amsterdam are currently competing for that seat, which Ibec says could contribute up to €1.25 billion to the Irish economy, in addition to up to €1.7 billion from the local division. Italy is already one of the leading EU countries in terms of the number of patent cases heard, while the Netherlands is known for its speedy court hearings.

Ireland’s attraction, says Ibec, is that it’s an English-speaking country that operates under a common-law system, much like the US, UK and Australia.

Dublin City Council has expressed an interest in marketing the land as the home of the Life Sciences. But building new structures outside of national law is a tricky business.

A lawsuit challenging the constitutionality of the investor court system in the EU-Canada trade deal (known as Ceta) is still pending in the Supreme Court.

Green TD Patrick Costello – who launched the legal challenge – said there should be a referendum on the investment court system, as was held in 2001 for the International Criminal Court, now based in The Hague.

“Like the International Criminal Court, the Patent Court needs a referendum. I don’t understand why the same logic doesn’t apply to Ceta,” he told dem Irish Independent.

It’s not clear when the patent court vote will take place, but it won’t be a “standalone” vote, the Tánaiste said this week.

It could take place in parallel with other referendums or the local and European elections in spring 2024.

The government program commits to referendums on the right to housing, the right for expats to vote in presidential elections and Article 41.2 of the Constitution on the role of women in the household.

A referendum on whether Irish Water should remain public property is also planned.

“We will consider the other upcoming referendums and see how best to fit these in,” Mr Varadkar said.

However, Mr Costello said this may not allow for a “meaningful debate”.

“I think it would be unfortunate to pin it to another referendum, which would prevent proper discussion. It’s a very niche, technical discussion, and I think it’s likely to get lost in a broader debate.” Ireland must act soon on an EU-wide patent court referendum

Fry Electronics Team

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