Opinion Piece: The Unified Patent Court could be a game changer for Irish business

May 01, 2023

Intellectual Property (IP) is a core part of any business and particularly is a vital part of the strategic tool-kit for any business that creates value through innovation and constant iterative improvements in products and processes.

Right now, as part of a new patent system in Europe, 17 European countries are on the starting blocks, ready to sprint forward when the new patent system begins on 1 June.

The question is, why is Ireland not lined up to fully and immediately participate in this race?

Instead, we are standing by and watching those 17 countries, which account for 66% of the population of the EU, enjoy a considerable head start on us in this race and make no mistake, in today’s competitive world and global marketplace, this is a race.

Another question is “What impact does delayed lining up at the starting blocks have on the competitiveness of Ireland relative to other countries?” - and what is the ultimate cost of that delay?

For individual Irish businesses, the question is, “What is the lost opportunity for competitiveness of my business?” and “How much is this really costing me in lost competitive advantage?”

What is going on?

A new Court for Patent litigation for businesses in the participating EU member states, (“the Unified Patent Court”) as well as a European patent with unitary effect (“Unitary Patent”) will come into effect on June 1, 2023.

The Unified Patent Court is a single international patent court established to handle infringement and validity disputes for existing European patents and the new Unitary Patents.
When the system launches on June 1, the Unitary Patent will be available to provide patent protection in the participating EU member states, which currently are the following 17 countries: Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, and Sweden.

Other EU member states may participate in the future, including Ireland, Greece, Romania and Slovakia, who have all already indicated their intention to join the new system. However, the timeline for Ireland to join is uncertain, though the Irish Government has indicated its intention to hold a referendum by May 2024.

Why the delay? Why does Ireland need to hold a referendum before we can join the UPC?

The UPC Agreement will, when implemented in Ireland, result in the Irish courts giving 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. Therefore, Ireland cannot join in the system until we hold that referendum and of course, there needs to be a majority vote in favour of joining the new system.

Ireland has always been at the heart of EU systems:

Ireland has been a member of the European Union (EU) since 1973, following a referendum in which 83% of voters supported our joining.

The new Unitary patent system has several benefits including reduced complexity for obtaining patent protection in multiple countries. That reduced complexity results in lower costs for the businesses seeking to put up barriers to market entry to competitors by obtaining and maintaining granted patents for their innovations.

In my opinion, Irish business will be at an obvious disadvantage relative to their counterparts in countries that are in the UPC system. The sooner that we hold a referendum, the better, for supporting innovation and protection of the competitive advantage that Irish innovators seek to create and maintain in the European and global marketplace.

For more guidance on IP strategy including further discussion on the impact of the new Unitary Patent for Irish businesses, we invite you to join our free webinar on May 17th from 2-3pm, please register to book your place: Book here 

HGF Limited is a full-service firm of Patent and Trade Mark attorneys with offices across Europe. For more information, please contact Marie Walsh at mwalsh@hgf.com and www.hgf.com

Marie Walsh
European Patent Attorney
HGF Limited

The views expressed are the Author’s own views.