Currently, Ireland is not a member of the Unified Patent Court (UPC), although the country is a long-standing member of the European Union. As we have already reported, the UPC is a new court that deals with the infringement and validity of European patents and unitary patents, which are patents that have effect across all participating EU member states. The UPC became operational on 1 June 2023, after years of preparation and ratification by the member states.
Ireland is one of the EU countries that has not yet ratified the UPC Agreement (UPCA), the treaty establishing the UPC. Ireland’s ratification is subject to a constitutional referendum, which under current plans is likely to be held in June 2024, as reported in the Irish Independent newspaper, to coincide with the European Parliament elections. A referendum is necessary as some national powers will be transferred to the European court.
The uncertainty about the impact of Brexit on the UPC has been one of the main reasons for the delay. The UK was initially a signatory of the UPCA but withdrew from the agreement after leaving the EU.
The Irish government is also intending to set up a so-called “local division” of the UPC in Dublin. An Irish local division would provide a useful means of access to the UPC system for patent holders coming from the US, UK, and other English-speaking jurisdictions. It is expected that there will be “forum shopping” between the different local divisions in European countries respect for patent infringement actions is to be expected and a Dublin local division would provide Ireland with a powerful advantage in attracting such litigants.
The UPC borrows aspects from both the common law and civil law legal systems. It would be expected that, as a common law jurisdiction, Ireland would offer a more familiar route into the UPC for those patent holders based in common law jurisdictions such as the US and the UK.
Many UPC cases have been filed in German, which has also caused the administrative authorities of the UPC a challenge, as there is a limited pool of judges able to hear the proceedings. The court is apparently encouraging parties to submit pleadings and argue cases in English – particularly where they are seeking urgent preliminary measures – as English is the only language common to all divisions of the court. Pleading in English means that urgent cases can be heard by the standing judge, who may be located in another country than the one where the application is made.
At Sonnenberg Harrison, we have extensive experience in advising clients on litigation and can file pleadings in German and French, as well as in English. We also have experience in filing validations of European applications in Ireland as well as working for Irish companies. Feel free to get in touch if you have any questions.
