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Ireland needs to act soon on EU-wide patent court referendum


Tánaiste Leo Varadkar said this week that the single patent and court will ‘give all parties more certainty’. Photo: PA

Tánaiste Leo Varadkar said this week that the single patent and court will ‘give all parties more certainty’. Photo: PA

Tánaiste Leo Varadkar said this week that the single patent and court will ‘give all parties more certainty’. Photo: PA

The Government has committed to holding a referendum on a new EU-wide patent court in 2023 or 2024. But firms warn Ireland could lose out on foreign investment if it fails to act sooner.

It has been almost a decade since Ireland first signed up to participate in the EU’s single patent and Unified Patent Court (UPC).

The system allows companies to register one patent across the EU – saving money on legal and translation fees – and fight infringements in any participating country, through local divisions of the UPC.

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

Tánaiste Leo Varadkar said this week that the single patent and court are “good for business and for SMEs” and will save “money and time and give all parties more certainty”.

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

Westmeath-based pharma company Alkermes recently told the Irish Independent that it would be “a big draw for multinationals”.

Business group Ibec estimates that setting up an Irish division of the court could add between €415m and €1.7bn per year to economic activity. But those benefits depend on how fast it is set up.

“We need a clear timetable, which captures the urgency of the opportunity at stake,” said Aidan Sweeney, Ibec’s head of enterprise and regulatory affairs. “A slow start to implementation will prove costly and prevent us from making the fullest use of the potential of the unified patent system.

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

So far 24 EU countries, including Ireland, have signed up to the single patent system, with 16 of those having ratified or provisionally applied the patent court.

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

The court is set to begin operations at the end of this year, after Germany fully ratifies it. Cyprus, the Czech Republic, Greece, Hungary, Romania, and Slovakia have also signed up but have yet to formally ratify the UPC agreement.

Without a swift decision, Ireland will be left out of talks on the court’s budget and its 90-person judicial bench. Hiring talks are due to begin this week.

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The UPC also needs to decide where to locate a ‘central division’ to handle life sciences patents, which was promised to London before Brexit. 

Milan and Amsterdam are currently vying for that seat, which Ibec says could add as much as €1.25bn to the Irish economy, on top of the up to €1.7bn from the local division. Italy is already one of the EU’s top countries in terms of the number of patent cases heard, while the Netherlands is known for its speedy court hearings.

Ireland’s draw, Ibec says, is the fact that it is an English-speaking country operating under a common law system similar to the US, UK and Australia.

Dublin City Council has expressed an interest in marketing the country as a location for the life sciences seat. But setting up new structures outside of national law is a tricky business.

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

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

“The patent court, like the international criminal court, needs a referendum. I don’t see why that same logic does not apply to Ceta,” he told the Irish Independent.

It is not clear when the patent court vote will be held, but it won’t be a “stand alone” vote, the Tánaiste said this week.

It could be held alongside other referendums or the local and European elections in spring 2024. 

The Programme for Government 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 home.

A referendum on keeping Irish Water in public ownership is also on the cards.

“We will consider the other referenda we have coming up and see how best to fit this one in,” Mr Varadkar said. 

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

“I think it would be unfortunate to tack it on to another referendum, which would prevent proper discussion. It is a very niche technical discussion, and I think that is likely to be lost in a wider debate.”

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