Michael Finn

Michael Finn, partner and head of country for Ireland at Bird & Bird, told Irish Legal News that Irish businesses “can and do already avail of the UPC”, which was formally established in 2023.

“For innovative Irish businesses who hold unitary patents in their portfolio, the UPC provides a ‘one-stop-shop’ solution to registering and enforcing their patents across the territory of the UPC,” he said.

“The ratification of the UPC agreement by Ireland will expressly add Ireland to that territory.

“Overall, the UPC aims to reduce the cost of maintaining patents, which in turn increases competitiveness and enhances innovation.”

A constitutional referendum is necessary for Ireland to ratify the UPC agreement.

A referendum was originally expected to be held in June 2024 but was indefinitely postponed after the government’s defeat in the family and care referendums in March that year.

The government has recently begun consulting with business groups on a potential new referendum date, according to media reports.

Mr Finn said: “The rules of the UPC were designed to bring together both civil and common law principles.

“However, the UPC does not yet have a divisional court that from a common law tradition, so an Irish division could be very attractive to patentees — especially Irish businesses — due to our common law roots, and native English-speaking judges.”

He added: “The timing is, of course, a matter for the government.

“However, the longer we go without ratifying the UPC agreement, the further the UPC case law will develop without any influence from the common law traditions.”

The UPC agreement is currently in force in 18 EU member states: Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Romania, Slovenia and Sweden.

The agreement has been signed but not ratified by seven further states: Cyprus, Czechia, Greece, Hungary, Ireland, Poland and Slovakia.

The UK played a leading role in the creation of the UPC but withdrew from the agreement in 2020 in light of Brexit. While the UPC is independent of the EU and the UK could rejoin, it is thought to be politically unlikely.