Irish UPC referendum expected within two years

The UPC is being set up to provide a dedicated judicial system for litigating new unitary patents, and existing European patents that are not specifically opted-out of the UPC’s jurisdiction will also be subject to the new court system.

Final preparations are being made for the UPC system to become operational, which is expected to happen early next year, but Ireland looks unlikely to be one of the initial participants.

EU countries must ratify the international treaty giving effect to the UPC – the UPC Agreement – in national law before they can participate in the new UPC system. Though Spain, Croatia and Poland have so far indicated that they will not participate in the UPC project, a critical mass of countries has already completed ratification of the UPC Agreement. Other supporters of the project, including Ireland, have yet to do so.

The UPC Agreement would, if implemented in Ireland, result in the Irish courts ceding some jurisdiction in patent litigation matters to the UPC. Such a transfer of sovereignty and judicial powers to the UPC, an international body, requires a referendum under the Irish constitution. 

Ireland’s deputy prime minister Leo Varadkar said: “A single unitary patent and Unified Patent Court is good for business and for SMEs. It will save money and time and give all parties more certainty. We will consider the other referenda we have coming up and see how best to fit this one in. It won’t be a standalone referendum, so it won’t be held this year anyway but could be next year or concurrent with the local and European elections in 2024.”

“It’s important to prepare. I’m conscious that it will need a good public information campaign to explain its significance and that takes time, resources and planning,” he said.

Ann Henry, Dublin-based European patent litigation expert at Pinsent Masons said: “It is fair to say big pharma and big tech want to see Ireland play a prominent role in the UPC right from the outset. It is important that happens given that Ireland is a common law jurisdiction and the UPC rules are heavily influenced by common law practice and procedure. An Irish local division of the UPC will have an important role to play in influencing the development of the case law of the UPC.”

When the UPC begins to operate, a transitional period lasting at least seven years will apply. During this period, the UPC and national courts around Europe will share competencies for litigating European patents: businesses can choose whether to enforce their European patents before the UPC or national courts.

Sarah Taylor, European patent litigation expert at Pinsent Masons, said: “Over the coming months, businesses across all sectors will need to consider their overall European patent portfolios, contractual provisions and litigation strategies to ensure that they are ready for the new system. Such strategies should include litigation in both the UPC as well as national litigation, the latter of which is particularly important in jurisdictions such as in the UK or Spain which are not participating in the UPC.”