Seanad debates

Thursday, 21 March 2024

An Bille um an Aonú Leasú is Daichead ar an mBunreacht (An Comhaontú maidir le Cúirt Aontaithe um Paitinní), 2024: An Dara Céim - Forty-first Amendment of the Constitution (Agreement on a Unified Patent Court) Bill 2024: Second Stage


9:30 am

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent) | Oireachtas source

I pushed strongly for "Yes" and "Yes" on the last referendums and was deeply disappointed with the results. It is probably one of the biggest votes for inequality since the citizenship referendum. I do not believe that was the intention of all those who voted "No" but that is the effect. The care proposal was disappointing but I look to everything on balance. I weigh up my positions. I will be honest and say that regarding the patent court, I am currently weighing up and considering my view. I have a number of questions and concerns so I am hopeful this Second Stage debate is a chance to have those addressed and looked at. Many of my concerns relate to policy. The economic case is well made but I am looking to the wider piece of policy, checks and balances and freedoms. I hope to get assurances that satisfy me on many of them. Then I will look at wider concerns about how intellectual property rights have been playing out in recent years.

I seek clarity on the relationship between the UPC and the European Court of Justice. This is a separate piece but a concern I still have about arbitration courts, the investor-state dispute mechanism and so forth is they do not recognise, effectively, the European Court of Justice. I understand EU law has primacy in the UPC system but I wonder how that plays out and is given effect. I understand questions may be referred by the UPC to the European Court of Justice for ruling and that previous rulings of the European Court of Justice may have set precedent. However, it is not clear whether, moving forward, there are mechanisms to appeal to the European Court of Justice. This matters because the problem with the investor court system that was proposed is not simply the big picture of fines for states and corporations, which are not relevant to this context; it is also around the make-up of those courts because they were narrowly focused on a particular area of law. They did not have the advantage national courts, the European Court of Justice and others have, which is that they look to law in the round. They are not simply looking to contract law or tort law but are looking to balance that against environmental or human rights law, for example, the Charter of Fundamental Rights, and other aspects of our law at European or national level.

Decisions on patents being looked at in the round are important because there are points when intellectual property rights are up against human rights and environmental considerations, and we have seen those points recently. In that context, I want to know what assurance there is on where the European Court of Justice fits in. Is there a loss in relation to our national courts and in terms of ensuring matters are balanced in the round? These things need to be teased out. It is a relatively new structure. There is an argument to say that Ireland should be part of it and by being part of it we get to affect how the UPC works and its development. In that context, I would want to know what kind of voice Ireland would be in its development. I have been speaking to a number of people quite widely on this. The balance is often whether we are better to be in it or to be separate. If we have concerns, do we address them internally or by staying out of it until it is developed further? The question of the European Court of Justice is fundamental to how it works.

The Minister of State mentioned judges who are legally qualified and those who are technically qualified. Will he elaborate on the difference between legally qualified and technically qualified judges? Could we end up with judges with expertise in one area of law and not in a wider spectrum of law? That was another concern about the investor court system. I recognise this is different but I am looking to unpack those areas.

Another question I have is in the context of the appalling failure of European and wealthier countries in relation to trade-related aspects of intellectual property rights, TRIPS, during the Covid pandemic. The quote from Mike Ryan of the World Health Organization in the Oxfam report "Everyone for Themselves" is: “We failed because of the greed of the North. We failed because of the greed of the pharmaceutical industry." There is a huge issue with the prioritisation of intellectual property rights over human rights concerns about access to a global vaccine. Right now, starting on 16 March and going to 31 March, official negotiations are happening on the pandemic accord. I understand the European Union is potentially scuppering the entire accord - this is our global attempt to learn from the Covid pandemic - simply because of the prioritisation of protection of intellectual property for a few companies. Pathogen access and a benefit-sharing system seem to be where the EU is blocking it. I would appreciate if the Minister of State would indicate where Ireland is on that because it gives us a sense of where Ireland might be if similar dilemmas arose in the patent court. It is the idea the Commission may be willing to not deliver a treaty rather than compromise profiteering in intellectual property.

The tools we have at the moment - inadequate tools - include compulsory licensing. How might something like compulsory licensing be impacted by the courts? How will compulsory licences operate within the unitary patent system? Will a contracting state retain the ability to contract compulsory licences at national state level? That is where a licence is granted to say something needs to be made available despite property rights. Health is a crisis; climate is the next coming crisis. If we see the same guarding of intellectual property rights relating to climate we have seen in health, many across the global south, for example, will face doom.If EU law has primacy within the patent system, is there scope for questions to be referred to the CJEU for preliminary ruling, and what is that relationship going to be, particularly if issues arise over human rights implications or, say, the fundamental rights charter relating to patents? Many of the arguments in favour of UPC have used economic rationales, and while these are important, there are other significant issues with regard to how they affect access to patent-protected technologies, including access to medical technology. It is important in an everyday context.

For example, the Minister of State mentioned and we have heard a lot about SMEs. It would be very useful if we could have a breakdown as to how many SMEs are registering patents versus the amount of patents being registered by large corporations. It seems the marketability to large corporations and then the convenience to small business is the pitch. I simply got figures for the European Patent Office, EPO, for 2019. It was interesting that 25% of those were for medical technology and pharmaceuticals. Again, those are patents in the areas where access had been blocked. This is why I believe talking about the pandemic treaty is relevant in this context. What we may see as well is the question of the forum shopping. Perhaps the Minister could comment on that, and the danger whereby, as he said, if a decision is made in one country that will be binding in Ireland, where a lot of companies are headquartered at the moment. Is it going to affect our ability to respond in a humane and appropriate way to future health crises or international processes, either through compulsory licensing or other measures or is there a risk that Ireland would become the forum that is shopped with, and we become a convenient forum for lots of major companies to get a UPC patent, and in that way we become complicit in the blocking of access to technologies in a much wider sphere?

I am sorry there is not more time. I have more questions but I think this needs to be teased out. It is significant. We should not downplay it, and I simply think that while convenience or cost-saving are important things, when we make a change to our law we need to be very careful and considerate.


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