On 13th November 2014 the Irish Government officially announced that it has decided to establish a local division of the Unified Patent Court (UPC) in Ireland.
This is a move which will, once the local division is established, have significant benefits for Irish owners of Unitary Patents, by dramatically reducing the cost and complexity associated with securing grant of a patent and legal proceedings involving those patent rights. The Unitary Patent is expected to come into force in late 2015/2016, allowing the Irish Government time to establish the local division of the UPC, which is dependent on a successful national referendum.
A Unitary Patent, as is the case with an existing European patent, will be prosecuted and granted by the European Patent Office in a single procedure essentially identical to that currently employed to secure grant of an existing European patent. This means that existing users of the system, both applicants and European Patent Attorneys, will be capable of immediately utilising the Unitary Patent system. However unlike existing European patents, once granted the Unitary Patent will, as the name suggests, have unitary effect across the 25 EU members states which have ratified the Agreement on the Unitary Patent System. As a result a decision on the infringement or validity of a Unitary Patent, taken in any division of the UPC (including the Irish local division) will have pan European effect across those 25 member states. This avoids the requirement for a patent owner to separately prosecute infringement actions in multiple European jurisdictions, an undertaking which is often prohibitively costly and time consuming, particularly for small to medium enterprises. However the downside of this pan European effect is that if the patent is deemed invalid before any division of the UPC it is then deemed invalid in all 25 member states.
In addition to the potential cost saving in litigation, a Unitary Patent does not require, unlike an existing European Patent, a translation of part or all of the patent specification into the respective language of each member state in which it has effect, dramatically reducing the cost of obtaining such a Unitary Patent when compared to a conventional European Patent. There will be a transitional period of twelve years during which a Unitary Patent granted in one of the official languages of the European Patent Office (English, French and German) will require a translation into one of the other official languages. At the expiry of the transitional period this requirement will be dropped. However even during the transitional period the Unitary Patent will result in a substantial reduction in cost to secure the grant of a patent, and a potentially even greater cost reduction should the patent have to be enforced in legal proceedings.
Establishing the local division is also positive overall step in fostering innovation and the exploitation of Intellectual Property rights, both in Ireland and across Europe, by reducing the cost and time taken to resolve patent disputes, meaning that enforcing patent rights will be a more realistic proposition for a greater number of patent owners. The local division of the UPC should also make Ireland a more attractive location as a base for international businesses, in particular those involved in R&D, by improving Ireland’s already well established IP focused environment, across both the legal and financial landscapes. The Irish Commercial Court, which was established in 2004, already deals exclusively in commercial cases including most IP related cases, with a streamlined procedure to reduce the waiting lists for such cases, the time and costs in hearing cases, and to ensure that cases are heard by Judges having a particular focus and knowledge of the specialist issued involved in such matters. The local division of the UPC will be a further improvement of the current legal framework, giving greater confidence that patent disputes can be handled locally and expediently while having essentially pan European effect at a greatly reduced cost.
A further benefit to local and international patent owners based in Ireland is the entitlement of European Patent Attorneys (EPA’s), with a suitable qualification, to represent patent owners before the UPC. This will allow certain Irish EPA’s to represent claimants before the Irish local division of the UPC, which will be particularly beneficial to a claimant whose patent has been prosecuted by the same EPA representing that claimant in court proceedings involving their patent. At the same time direct representation by EPA’s will mean that the in depth patent knowledge of EPA’s will be available and utilised during proceedings taken before the UPC. Patent Attorneys have historically been unable to directly represent their clients in legal proceedings involving those client’s patent rights. This increased expertise in such proceedings can only serve to improve the quality of legal decisions affecting patent owners.
The Unitary Patent and Unified Patent Court are expected to be simultaneously established in late 2015 or 2016.