The Irish government has recently announced its intention to hold a referendum in 2023 or 2024 on Ireland's participation in the UPC. Although there is concern over the proposed timeframe for holding the referendum with the Irish business and IP communities eager for the UPC to be ratified in Ireland as soon as possible, this is generally seen as a positive step.
As the UPC's exclusivity of jurisdiction in patent matters would take away from the existing full jurisdiction of the Irish courts in such matters, ratifying the UPC would involve an amendment to Ireland's constitution. The Irish Constitution can only be amended if the proposed amendment has been approved by the people of Ireland in a referendum. This gives the people of Ireland the opportunity to decide whether or not the law will change.
The holding of such referenda can be an unsettling prospect particularly when the public is being asked to vote on something as niche as the UPC. However, generally speaking, the Irish public tends to be pragmatic in its approach to referenda and 84% of referenda held in Ireland have been passed. For those previous EU referenda held in Ireland that were not passed, the Irish public took the view that the information provided about the subject of the referendum was incomprehensible and unrelatable such that they could not make an informed decision.
Overall, it is hoped that the pre-referendum information about the benefits to Ireland of ratifying the UPC will be clearly explained to the Irish public and that this should encourage a positive outcome. Ireland also has a pro-EU outlook, being recently ranked highest across all EU member states in optimism about the future of the EU, which will also likely play a positive role in the outcome.
An Irish division to the UPC may provide significant advantages for patent holders. The UK and Ireland both adopt a common law judicial system, based on case law and legal precedent. In contrast, most of mainland Europe follows a civil law system. With the absence of the UK from the UPC, Ireland may become a go-to jurisdiction for patent holders that favour a common law system, especially US-based patent holders for whom the opportunity to hold proceedings in English may be a further advantage.
With an Office in Dublin, Ireland, Finnegan is ideally placed to keep you updated on progress in relation to this important Irish matter. Also, for more news on the UPC in general and our FAQ, see our dedicated page here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
