Louise O'Reilly (Dublin Fingal, Sinn Fein) | Oireachtas source

We welcome the opportunity to speak on this legislation. Sinn Féin will support this legislation and we will await the publication of the wording of the referendum to make a further decision, which is entirely reasonable. I apologise in advance for my alternating and interchangeable pronunciations of the word "patent". We might tack something onto the referendum, so we can make a definitive statement on it, because I find myself drifting between the two.

In 1973 the European Patent Convention was signed, resulting in the establishment of the European Patent Office. Ireland has been a member since 1992. The Minister of State referenced that this came into force on 18 June 2023. We will be the 18th participant, so we have not exactly rushed into this and as a result of delays I believe we have lost some opportunities to bring a court here, and the Government needs to take some responsibility for this. We recently also failed to secure the European Money Laundering Agency. There needs to be some reflection on the part of the Government.

Notwithstanding that, if ratified, we will be the 18th participant. There are 17 ahead of us but still more to follow. The main roles of the UPC and the UPO are to strengthen co-operation between the states of Europe in respect of the protection of inventions, and the European Patent Office states that "such protection may be obtained in those States by a single procedure for the grant of patents and by the establishment of certain standard rules governing patents so granted". The Unified Patent Court is a further reform in this area, which will fundamentally change the system in Europe and Ireland. As stated in the report of the joint committee:

This reform consists of two pillars, i.e., the creation of a European patent with unitary effect (“unitary patent”) and the establishment of the Unified Patent Court (UPC), an entirely new multinational court for pan-European patent litigation.

The Unitary Patent (UP) and the Unified Patent Court (UPC) are the building blocks of the UP system which will supplement and strengthen the existing centralised European patent granting system. They will offer users a cost-effective and procedurally attractive option for broad patent protection and dispute settlement across Europe. The Unitary Patent system is expected to become operational in the first half of 2023. The UPC is a common patent court open for participation of Member States of the European Union and created by the "Agreement on a Unified Patent Court" (UPC Agreement or UPCA), which is provisionally applicable since 19 January 2022.

A single court ruling will be directly applicable in the member states that have ratified the UPC Agreement. The UPC Agreement was signed as an intergovernmental treaty in February 2013 by 25 states (all EU Member States except Spain, Poland, and Croatia).

A unitary patent system is now in place and the unified patent court entered into force on 1 June 2023. The UPC is common to 17 member states and has been signed by seven further states and can be ratified by them at any time. This is a court comprising judges from all participating member states of the EU. It is being set up to decide on the infringement and validity of both unitary patents and classic European patents. The purpose of the Unified Patent Court is to fundamentally reform the patent system in Europe and Ireland and to provide a legal framework. The report states:

A single court ruling will be directly applicable in the member states that have ratified the Unified Patent Court Agreement. This will enable patent holders to enforce their rights and defend patents in one single ruling, providing a cost-effective remedy and protections.

Something we discussed at some length at the enterprise, trade and employment committee was the extent to which there are great advantages for small to medium enterprises in cutting down on bureaucracy, paperwork, and so on. The report states that:

Ireland requires the successful passing of a constitutional referendum to ratify the Unified Patent Court Agreement, as it entails a transfer of jurisdiction in patent litigation from the Irish courts [to the European court].

At present there is no single European patent valid in all Member States. Instead, individual patents must be held in each country where the patent is to be applied. Applications can be made to either the national patent office in each country or by making a single application to the European Patent Office (EPO) [It was illustrated to us clearly how cumbersome that can be.]... European patents are granted by the European Patent Office (EPO) under the 1973 European Patent Convention (EPC). At present most patents currently in force in Ireland have been granted by the EPO, which is a centralised European clearing house for patents. The Intellectual Property Office of Ireland (IPOI), based in Kilkenny, has similar competence. However, most of the activity from a patent perspective tends to go through the EPO ... These patents must subsequently be litigated separately in the national courts of each country, with separate legal representation and costs and with the prospect of different outcomes.

It boggles the mind that in a unified European Union there could be different outcomes in different courts. It is almost impossible for small to medium enterprises to deal with that. The UP and the UPC will create a patent enforcement that works effectively, efficiently and economically for companies and for SMEs. Delay from Government in deciding on the UPC has resulted in us being unable to lobby for the court to have its operations in Ireland. Paris is now the central division of the court of first instance, and Luxembourg the seat of the court of appeal. We await the publication of the referendum wording and look forward to engaging with Government and businesses on this matter.

I will say a word about the referendum. It is important. It will be incredibly technical. I have said we will reserve our position until we see the wording, but it will be very hard to get people excited about it. The Government's current referendums will be held on 8 March. I am not detecting a huge amount of enthusiasm, and I doubt the Minister of State is either. It is not something that has sparked the public imagination. With the greatest of respect to the greatest advertising brains in the world, I do not think this will spark public interest. Notwithstanding that, the opportunity exists to have a respectful and informed debate, which I hope we will have in the run up to the referendum.

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