The Irish Government has announced that it will hold a referendum on joining the Unified Patent Court (UPC) in June 2024. This news moves Ireland closer to becoming the 18th EU country to join the UPC and unitary patent (UP) system. The news was widely welcomed by the Irish patent profession and organisations like Ibec who have estimated that the value to the Irish economy of joining the UPC could be as much as €1.6bn per year. Additionally, this will be welcome news to those UK-based patent litigation firms that have opened or bolstered their Dublin offices during 2023 to enable their dual-qualified UK/Irish patent litigators to register as UPC Representatives.
The UPC has had a successful first seven months with 217 individual actions filed (some as counterclaims) and over 18,000 requests for UPs. The judges in the UPC’s Court of First Instance have already shown they will scrutinize cases thoroughly and are willing to grant preliminary injunctions on UPs (covering all 17 UPC participating countries). The Court of Appeal has over 20 appeals filed from the early Judgments from the Local, Regional, and Central Divisions.
Importantly, if Ireland does join the UPC and sets up a Dublin local division, it will have judges with experience in common law traditions. This could be important for parties who want to utilize those parts of the UPC’s Rules of Procedure that were drafted to incorporate common law tools like disclosure, use of expert evidence, and cross-examination. These are either not available or rarely used in many of the UPC member states’ national patent courts with a civil law tradition. Such tools – used judiciously and proportionately – could be extremely attractive to potential users of the UPC.
The Irish Government has approved the priority drafting of a Bill to give effect to the proposed constitutional amendment if the results of the referendum are positive. This will hopefully reduce any delay between the referendum and Irish ratification of the UPC Agreement.
Written by Rachel Fetches
IP/Patent Litigation Partner, HGF
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