The second installment in this series on the Unified Patent Court (UPC) examined the structure of the UPC. This third installment looks to Ireland as an archetypal contracting member state of the UPC.
As Europe moves towards the implementation of a unitary patent system, the Irish government has announced that a local division of UPC is to be established in Ireland. In order to ratify the UPC Agreement under Irish law, Article 29 of the Irish Constitution will have to be amended to recognise the transfer of Court jurisdiction from the Irish Courts in respect of European patents. While a number of other constitutional referendums in Ireland are being held in May 2015, there has been no date set yet for the referendum on the UPC. It is important to note that the UPC will not have any competence with regard to national patents granted under Irish patent law. Thus, the Irish Courts will retain exclusive jurisdiction in determining the validity of Irish patents.
Infringement cases involving European patents can be brought before the local division of the UPC here if either the actual or threatened infringement has occurred in Ireland or may occur; or if the defendant has its residence or place of business here. Under the existing system where European patents are validated in one or more member states of the EPC, patentees may have to contest parallel litigation cases in multiple jurisdictions. Under the proposed UPC system, only one litigation case needs to be taken, the outcome of which has effect in all of the UPC member states. However, given that multiple local and regional divisions of the UPC are being set up, and the likelihood that patent infringement will not be limited to one member state, this may provide potential litigants with the opportunity of ‘forum shopping.’ That is, claimants will have a choice as to where to commence infringement proceedings where infringement occurs in multiple jurisdictions. For example, some local or regional divisions of the UPC may be perceived to be more patentee friendly than others. Accordingly, judicial make-up, experience, attitudes, cost, and language, among other factors, will have a key bearing on the choice of Court.
The Irish local division will typically have three legally qualified judges including one Irish national, and may also have an extra technically qualified judge added on the request of one of the parties. The panel of three judges is likely to be headed by an Irish judge rapporteur who is expected to be influential given that he/she will be responsible for managing the Court procedures. Thus, Irish judicial practice may have a key bearing on the UPC Court procedures in Ireland. The language of the Court proceedings in Ireland will be English.
Patent litigation cases in Ireland are presently entered in the Commercial Court, which was set up in 2004, and specialises in commercial litigation having a claim value of more than 1 million Euros and any intellectual property cases. Accordingly, Commercial Court judges have become experienced at handling patent disputes. Irish High Court judges who hear patent cases can be expected to have significant commercial expertise and experience in dealing with complex litigation. Under Irish patent law, a scientific assessor can be designated to assist a High Court judge on technical aspects of a case, and arising from this, judges have gained experience of handling technically complex cases. The accumulated experience of Irish judges in handling patent disputes will hopefully be reflected in the local division of the UPC here.
The decision to host a local division of the UPC in Ireland is welcome news for SMEs and multinationals based in Ireland. Such companies will be able to enforce their European patents against potential infringers and to defend patent actions taken against them in a Court in Ireland, thus reducing costs and attracting more IP activity in Ireland. Accordingly, the potential for patent litigation being conducted in Ireland is likely to increase.