Neale Richmond (Dublin Rathdown, Fine Gael) | Oireachtas source

I thank all of the Senators for their contributions to what is a lively and important debate. I accept the more general political comment that this is a very technical piece of work. It is going to be difficult to engage with people. I do not hide from that for an instant but it will require frank and open engagement, and clear and honest facts.

I have been involved in quite a number of referendums, long before I even joined a political party or got involved in politics. I got involved in campaigning for referendums through ordinary citizens' advocacy groups, particularly on European referendums. I certainly played a part in a number of European referendums that did not get through. I remember the last European referendum I was involved in - and I was part of a political party, I think I was a councillor at the time - was on the fiscal stability treaty in 2012. Following the results of the referendum and the post-referendum analysis, the key issues that played on the minds of voters were remarkable, and we are all talking about that at the moment and reflecting on it. It was remarkable, and it goes to the tone of the campaign by those who opposed it, that the two biggest issues that raised concerns were conscription into an EU army and abortion. This was to do with the fiscal stability treaty, or the fiscal compact treaty. The text of the treaty and what it was doing had absolutely nothing to do with those areas. It just goes to show the importance of debating a referendum on its clear merits and addressing the facts as they are exactly relevant, and perhaps not being brought into a wider policy discussion that may be parallel but that does not actually impact.

As I said from the outset, this is a really important referendum. It is really important not just for industry or SMEs but for the people who will benefit from these patents that will lead to inventions that will make their lives better. This may be from a personal health point of view, or it may be an invention that will make their working lives better. It will absolutely be of economic benefit to the State, and I do not think we should shy away from this, as it is one of the biggest selling points. It will drive increased tax revenues. It will create new jobs that we rely on societally in order to ensure that we have a country and a State that is fit for purpose.

I will try my best to address some of the specific questions but Senators might be so kind as to allow me respond directly via email to some of the slightly more technical matters, or we might just sit down and have a cup of coffee. It might be easier to do that rather than doing it on the floor of the Chamber.

Senators Keogan and Garvey both made very clear advocacy for the location of the court.There will be a court located in Ireland. Kilkenny is the location of the Intellectual Property Office of Ireland, as Senator Keogan said. Senator Garvey also mentioned Clare. Those are two fine locations with a clear judicial history and relevance to this matter. It is a decision that will be taken by the Minister for Justice and the Courts Service if the referendum is passed. Everything will be considered and we welcome feedback and insight.

Senator Gavan raised two matters. I stated earlier that there is no giving away of sovereignty involved. The status quo will remain. If we vote to join in this referendum, we will give other options to inventors to patent the work they are doing here in Ireland across 17 member states and potentially across as many as 24. If inventors choose not to do so and just patent their work in this jurisdiction, that right still remains. Rather than giving away sovereignty, this is allowing us to have access to a further plane to provide protections for those inventions.

I will deviate from the topic matter to refer to the EU platform workers directive. I appreciate the Commencement matter that Senator Gavan introduced three weeks ago. The debate was held last Monday afternoon in Brussels. I made a public contribution, spoke firmly in favour of the directive and gave Ireland's backing to it. We voted in favour of it, and I specifically referenced the organisation of platform workers who have been on the Irish streets to protest the terms and conditions they are simply not being afforded. We have previously discussed the issue in this House but I fundamentally believe that their workers' rights are at risk. That needs to be addressed. This directive would address part of that, but let us be honest and state that it is not a panacea. It requires more domestic action. Much of it is down to enforcement rather than legislation. As we have discussed previously, however, I am committed to pursuing that as a legal and policy matter. We have already started preparations on this directive. It is going to be legislatively onerous for Ireland. Much of what is in the terms of the directive is already in place in this country, which is why we are able to support it so easily. It will, however, place a legislative burden, for want of a better term, on officials in my Department, but they have already started the work. We will more than happily take insight from the Senator, the trade union movement and the companies in question.

Senator Higgins and I have not engaged since I left this House. It is great to be engaging with her again. I miss our trips to Strasbourg for the Conference on the Future of Europe. Those were different times. The Senator raised a number of questions that I will endeavour to answer as well as possible but with her indulgence, we might respond to her directly and provide public answers because they are technical and, to be frank, difficult questions. Some of her questions were ideological and I will be able to respond to those.

The court of appeal of the UPC will be in Luxembourg. The Senator asked about the development of the patent court going forward. Because we have not ratified, my officials only have observer status at the administrative committee meetings. We can only have influence if we join. We either sit on the sidelines as it continues on its path or we join and influence it. We had a lot of influence prior to signing the treaty in 2013, as did all member states, but until we ratify it, we do not join it. That is understandable. You do not let someone join a club and influence the decisions of the club if they are not a part of it. I fundamentally believe that is why it is much better to be part of the court from the outset.

The Senator also asked about compulsory licences. There is a bit of work to be done in that regard. I will be able to come back to her directly on that issue, as I will on forum shopping, which is a real concern. If this referendum is successful, I hope it will attract business to Ireland. I hope this will encourage researchers, academics and inventors either to come to Ireland or to stay in Ireland. We do not want them to be doing that as some sort of convenience. It is a real investment in their work and, in turn, in the State's attractiveness.

There are two other points to make before I talk about TRIPS and the wider issues. The Unified Patent Court is a court common to participating EU member states. In the same way any national court must respect EU law, the UPC must apply a uniform interpretation of EU law. Similarly, any judgments of the European Court of Justice are binding on the UPC. The UPC will have to refer questions to the European Court of Justice on the interpretation of EU law, particularly in respect of the regulation of the unitary patent. The European Court of Justice will not act as an appeal court of the UPC.

Large companies for which research and development constitutes a significant investment, such as those in the pharmaceutical, medtech and other IP-intensive industries, already have a high awareness of the IP system and recognise the values of intellectual properties. The SME sector in particular needs greater IP awareness, to be quite frank. We are not doing enough outreach to SMEs. A couple of weeks ago, I spent some time in Tipperary with Senator Ahearn. We visited the local enterprise office. We also visited a particular company and I cannot give its name because the work it is doing is so sensitive. It is a very small company of just two individuals. They had been working in medtech for a large multinational corporation but have gone out on their own to develop medical technologies that will be absolutely life-changing for people. We want to give them opportunities. What they are inventing will be patented in the next six to 12 months and we want it patented here. We want it to be protected here. We want them getting rewards and we want their work to be recognised. We also want that technology to be developed here for the most wide use possible. Over 99% of Irish enterprises are categorised as SMEs and studies by the EU Intellectual Property Office, to which the Senator referred, have shown that SMEs which have filed at least one IP application are 21% more likely to experience subsequent growth. Similarly, SMEs that own intellectual property have 20% higher revenue per employee than companies that do not. They also pay wages that are, on average, 19% higher.

I will move to the Senator's point about forum shopping. A potential infringer who wants to start an independent revocation action or an action for a declaration of non-infringement does not have a choice and must go to the central division, which is in Munich, Paris or Milan, depending on the field of technology of the patent. For this reason, certain critics have referenced forum shopping. However, the effect of the so-called forum shopping within the UPC shall be very limited and does not outweigh the disadvantages of the current patent litigation in Europe. There are two important reasons. A local or regional division of the UPC shall not be composed of solely national judges. It must have at least one from the member state where it is resident but the other two can come from any other participating nation. On the contrary, local divisions with fewer than 50 cases per year will only have one national judge and as I said, two judges from other contracting member states. The mechanism of multinational panels by itself shall contribute to a large extent to constituent and qualitative case law at all local or regional divisions.

The UPC system only has one court of appeal, as I said, in Luxembourg. That means that all cases initiated at the court of first instance and that are subject to appeal end up in the same court of appeal. It is impossible to forum shop in that regard because all cases go to the same court of appeal. The role of the court of appeal will be important to correct any risks of local or regional divisions having too much national influence, if that makes sense in response to the Senator's concern.

The Senator can correct me but her final point could be described as relating to more of an ideological debate. We had that at the height of the Covid-19 pandemic in relation to the TRIPS waiver and compulsory licensing. We debated the issue at length in this House and in the Dáil. It comes down to the ideology and ethics behind patents. Why do we protect patents? Why do we ensure those people who own patents can protect them? It is in order to encourage people to develop technology, treatments or drugs in the first place. The products are sold commercially but one could ask that if there was not that commercial element, would those people develop those patents in the first place? That is an area on which the Senator and I simply disagree. We have disagreed many times in the past but that does not make us colleagues any the less. We can work together to see where there is common ground. The Senator and I have been on the same side of referendums over the past decade. However, crucial to consideration of the Unified Patent Court and the policy that surrounds it, and this is where I return to my original point, is the separation of general policy and the specifics of the question we want to put to the people. We want people to know that we have an existing system whereby someone can register a patent that will be protected solely in the Irish system but his or her work can be copied or done in any other EU member state without any recourse. We want to give people the option of expanding that by making Ireland the 18th member of the UPC.If you develop a new drug and register an Irish patent with this court, it will be protected across all 18 member states. This goes to the collective strength of co-operation at an EU level that we see in many different fields. This is one. As I said, I do not have the fine detail to answer all the Senator's questions. I will take the text of this debate and refer to the Senator by email. I will then follow up or if the Senator wishes to make specific submissions to my office, we will of course engage.

I would like to think I covered all the other specific questions. I sincerely thank all the Senators who made contributions and hope we can see this referendum take place. It is good that it will take place on 7 June because people will be thinking with an EU focus as the European elections are being held on the same day.

This provides a great opportunity for many people on this Stage. It is obviously something we should move forward with, but with the humility to know that any campaign has to be open, transparent, clear and based on facts.