Published May 14, 2024

The Irish Government has confirmed its decision to defer the date for the referendum for the ratification of the agreement on a Unified Patent Court (UPC), which was due to be held on 7 June 2024 to coincide with the European and Local elections. No alternative date for the vote has been confirmed by the Government who have cited the need for greater public discourse and engagement on the matter.  

The Unitary Patent Package 

The Unitary Patent Package (UPP) established by the participating EU Member States comprises two elements: the Unitary Patent and the Unified Patent Court. This new system started on 1 June 2023. The UPP represents the most radical change to patent law in Europe for over 40 years: it is a single patent and a single court covering up to 24 Member States (currently 17 participating Member States), with a combined population of about 400 million. The establishment of a single court makes it possible to obtain a single decision preventing the sale of goods and the use of patented processes across all participating Member States. 

The UPC is a supranational court that has jurisdiction over all participating EU Member States in one action. The UPC has jurisdiction over new Unitary Patents, as well as traditional European patents. It is comprised of specialized patent judges and applies its own autonomous substantive and procedural law. The stated intention is that Judgments at first instance will be given within slightly over one year of the start of the action.

Is Ireland a member of the UPC?

Over a decade ago, Ireland signed the Agreement on a Unified Patent Court (UPC Agreement). However, in order to complete the ratification process a referendum was required, pursuant to Article 29 of the Irish Constitution, to activate the transfer of jurisdiction in patent litigation from the Irish Courts to an international court (the UPC). 

The referendum had been scheduled for 1 June 2024 to coincide with the European and Local elections.   

Why has it been deferred?

The Irish Government on April 16, 2024, announced that the date for the referendum was to be deferred citing the need for more time “for public discourse and engagement on the matter to help inform the debate”. 

The Minister for Enterprise, Trade and Employment Peter Burke TD stated that [t]he June elections will give rise to diverse issues and campaigns involving local and European candidates, which may crowd out a debate on the Patent Court. Feedback suggests that many people are unfamiliar with the Patent Court and there is not a significant level of awareness among the electorate ahead of the proposed referendum.” 

He continued “[w]e need to have a broader discussion around the importance of Unitary Patents, the jurisdictional matters relating to the Court, and the economic benefits that joining the UPC would bring.  However, I believe considered debate around these subjects would be in danger of being lost among the other issues that will dominate the campaigns over the coming seven weeks.”

The government has not yet commented on a revised date for the referendum. Simon Harris, the Taoiseach, has stated “ terms of the actual timeframe to have a referendum campaign to allow the Electoral Commission to do its job, I think it’s important that we reflect on that and get that right in terms of the timing.”

While the government has stated that they are committed to Ireland participating in the UPC and have recognized the benefits for the economy that Ireland’s participation would bring, the likelihood is that the ratification of the UPC Agreement is a long way off. 

Our best estimate, taking into account a likely General Election at the start of 2025, is that the earliest Ireland may hold the UPC referendum would be in 2026.  

Michael Finn

Written by Michael Finn

Partner, Bird & Bird

Erika O'Donnell

Written by Erika O’Donnell

Senior Associate, Bird & Bird

Bird & bird

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