The Irish Government has announced that a constitutional referendum will be held alongside the European election in June on Ireland’s participation in the Unified Patent Court (‘UPC’). Ireland signed the agreement establishing the UPC in February 2013, but must hold a referendum to amend its constitutional arrangements to fully participate in the new court.

As we have discussed previously, the Unitary Patent Court is a new European court for conducting litigation involving infringement and revocation actions for European patents. The Unitary Patent system entered into force on 1 June 2023, taking effect for the 17 participating EU member states who had ratified the UPC Agreement. Ireland is one of seven signatory states who have signed the agreement but not yet ratified, alongside Cyprus, the Czech Republic, Greece, Hungary, Romania and Slovakia. 

While the Irish Association of Patent and Trade Mark Attorneys and representative business groups have stressed the significant advantages of Ireland’s participation in the UPC, it remains uncertain whether the referendum will pass. Speaking to the Dáil Éireann (the lower house of the Irish parliament) last year, the Tánaiste Micheál Martin (Deputy head of the government) acknowledged concerns about whether the voting population “understand the complexities relating to the Unified Patent Court”. While constitutional referendums have been a relatively common occurrence in Ireland since the Constitution entered into force in 1937, around a quarter of proposals for reform have been rejected by voters. For example, in 2008 Irish voters initially rejected a referendum on ratifying the EU Treaty of Lisbon. Government research following that unsuccessful referendum found that the most common reason for voters rejecting the referendum was a lack of knowledge, information or understanding of the issue. It may be a challenge for the public to understand the UPC referendum, given that it will be competing for attention with the European Parliament elections and earlier constitutional referendums in March relating to the definition of family and removing reference to a woman’s “duties in the home”. 

On the assumption that the referendum passes, the Government has committed to establish a local division of the UPC in Dublin. A local division in Dublin would be an attractive location for Unitary Patent litigation for international businesses, given Ireland would be the only participating UPC member state with an English language common law background. A local division is also forecast to contribute as much as €1.6 billion to GDP growth per annum, creating jobs and benefitting SMEs.