Background

Europe’s new Unitary Patent System was established on 1 June 2023 and provides successful applicants for a Unitary Patent with uniform protection across all participating European countries on a one-stop-shop basis. These patent holders can take actions to enforce or defend their rights in individual member states which have ratified the Agreement on a Unified Patent Court (“UPCA”) availing of a single court ruling that be directly applicable in those member states.

The system is supported by the UPC which will, subject to exceptions during a transitional period, have exclusive jurisdiction over both unitary patents (“UP”) and European patents under the European Patent Convention (save for patents that have been opted out entirely from the UPC’s jurisdiction).

Already 17 of the 24 participating EU Member States have ratified the UPCA, establishing the new Unitary Patent System and the UPC. The remaining EU Member States (including Ireland), which have signed but not yet ratified the UPCA may ratify it at any time.

Status in Ireland

While Ireland has approved the entry into the Unitary Patent System, a constitutional referendum is required to ratify the UPCA as it entails a transfer of jurisdiction in patent litigation from the Irish courts to the UPC.  Currently, patent litigation seeking damages in excess of €75,000 are dealt with by the Irish High Court.  The Irish Commercial Court has a specific sub-division – The Intellectual Property and Technology List – which facilitates the efficient and expeditious resolution of IP and technology disputes, including patent litigation. Ratification would also bring an opportunity for Ireland to establish a local seat of the UPC.

Absent recourse to the UPC at this time, protection can be sought in individual European Patent Convention contracting states by filing a patent application with those states’ national patent offices, for example with the Intellectual Property Office of Ireland, or by making a single application to the European Patent Office.