Diarmuid Wilson (Fianna Fail)
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The motion regarding the statement for the information of voters in relation to the Forty-first Amendment of the Constitution (Agreement on a Unified Patent Court) Bill 2024 will be debated in conjunction with the Second Stage of the Bill, but will not be moved until the Fifth Stage is concluded.

Neale Richmond (Dublin Rathdown, Fine Gael)
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I welcome the opportunity to introduce the Forty-first Amendment of the Constitution (Agreement on a Unified Patent Court) Bill 2024 to the House. In line with Article 46 of the Constitution, the Bill sets out a proposal for an amendment to the Constitution and, if passed by both Houses of the Oireachtas, a proposal will be submitted by referendum to the decision of the people.

This proposal has received widespread support and we are able to consider it here today thanks to the positive cross-party engagement received during the presentation to the Dáil and the Members’ assistance in progressing the Bill thus far. I look forward to hearing the views of Members of this House on the matter. Before I go through the Bill, I will first give some background and context to it. The primary purpose of patents is to encourage innovation and to protect the rights of inventors. By granting patents, the State gives inventors exclusive rights to their inventions for a limited period. During this time, inventors have the legal authority to control who can use, make, sell or distribute their inventions. Patents therefore play a crucial role in fostering innovation, advancing technology and promoting economic development by providing inventors with the incentive and protection they need to bring new ideas and inventions to market.

There are currently a range of patent options available to inventors in Ireland depending on the jurisdictions in which they want to protect their intellectual property. In summary, these are Ireland's national system, the national system of another country and the European Patent Convention. We also have the patent co-operation treaty. This referendum is about providing a further additional option to Irish inventors who wish to protect their intellectual property beyond Ireland. This option addresses a key difficulty cited by patent owners using the international systems I have just mentioned, namely the high cost of protecting the patent against infringements and other legal challenges. Many patent owners only patent their inventions in a handful of countries due to the high costs involved in registering in each country. This makes inventions less valuable as the lack of protection in other countries makes copying them easier.

The Agreement on a Unified Patent Court creates a new type of patent that is protected across the participating member states. Inventors will be able to receive a judgment from a local division of the Unified Patent Court, UPC, and this will protect their property in participating member states. Ireland has been involved in developing this new system right from the start. The Agreement on a Unified Patent Court was signed in Brussels on 19 February 2013, during the Irish Presidency of the Council of the European Union, by the then Minister for enterprise, Deputy Richard Bruton. It is therefore time for Ireland to join the new system now that significant hurdles that were beyond our control have been overcome. The first hurdle was that two internal constitutional challenges arose in Germany with regard to the voting system in the Bundestag. One essential requirement of the agreement was that there must be at least 13 ratifications and that these must include Germany, France and Italy. Germany only filed its ratification in early 2023, enabling the UPC's entry into force on 1 June 2023. The second hurdle was that the UK withdrew its ratification due to Brexit. It had originally been agreed that London would host a central division of the court. This gave rise to a problem, which was resolved when the UPC administrative committee announced an appropriate remedy to the Brexit issue in June 2023, with Milan replacing London.

I will now turn to the Bill, which is short. Section 1 provides that the text set out in both the Irish and English languages in the Schedule will be inserted as a new Article 29.4.11°. The proposed new subsection will permit the State to ratify the Agreement on a Unified Patent Court, which Ireland signed up to on 19 February 2013. Section 2 is a standard form provision providing that the Bill may be cited as the Forty-first Amendment of the Constitution (Agreement on a Unified Patent Court) Act 2024.

If the referendum is successful, Ireland will become the 18th participating member and so the unitary patent will also have protection in Ireland. Subsequently, the Government will propose legislation establishing a local division of the UPC and providing for its functioning and administration. The court will be established in Ireland after enactment of this legislation, meaning that we can offer inventors a further option which will be accessible, cost-effective and more efficient for broad patent protection.

The unitary patent is a legal title that provides uniform protection across all participating countries on a one-stop-shop basis. It enables a single approach to patent registration and litigation across currently 17, and potentially up to 24, participating EU member states with a combined population of approximately 400 million people. The significant reduction in patent registration costs and annual renewal fees should encourage patent owners to protect their patents in more countries and reduce the risk of patents being infringed. The local division of the court will be a specialist court that will decide private party litigation with direct effect in the participating member states.

If Ireland does not ratify the agreement, a unitary patent will not be valid in Ireland. If Irish inventors want unitary patents for their inventions, they will have to register a unitary patent abroad to protect their invention in the 17 participating countries. They would also to pay separately to register it in Ireland, along with annual fees, meaning extra costs for Irish inventors. Having done all this, if they wanted to take a case to protect their unitary patent legal rights, they would also have to travel abroad to a participating country in and incur various legal and travel costs and encounter language challenges and other inconveniences.

Why is this referendum important? I will go through some of the reasons. First, it is important for the competitiveness of our small businesses. Second, it is important for our overall national competitiveness. Third, it will enhance the science and research and development agenda. With regard to its impact on small businesses, the overall reform is arguably much more important to SMEs than it is to larger businesses, including multinationals. Larger businesses can more generally afford the expense of patent protections and litigation in different jurisdictions. SMEs have far fewer financial resources. Having a specialised local UPC in Ireland will mean that patent owners can enforce their rights on home ground. Small businesses and researchers would be much more keenly affected by costs if they had to travel to other member states for patent cases and engage legal professionals in other jurisdictions.

We want to ensure that we put in place measures that will continue to support business growth and innovation while also reducing both administrative and financial burdens. Before this new unitary system was operational, the patent renewal system was quite fragmented. There are different levels of annual renewal fees, individual national legal requirements and payment transactions in different currencies. The cost savings for inventors under the new unitary patent system are significant. It is estimated that it will cost less than €4,700 to maintain a unitary patent for an average of ten years, down from €30,000 today on a comparative basis, if this agreement is validated in all 24 member states.

If we want to help small businesses grow and scale, we need to build and maintain a level playing field for our Irish businesses competing with businesses elsewhere in Europe. Other countries’ small businesses will have access to the unitary patent system and so should ours. Enterprise Ireland-backed companies saw great export growth to the eurozone in 2022, with the eurozone now representing 25% of all exports by Enterprise Ireland-backed companies. Exports to the eurozone increased by 28%, reaching a value of over €7.9 billion. A streamlined, easier and cheaper Europe-wide patent protection will help Irish businesses to export to a greater number of countries across Europe, which is a key focus of the Government’s export strategy, particularly post Brexit. A unitary patent covering most of the Single Market would be of immense value to an innovative SME or start-up with scalable potential.

Participating in the UPC is also strategically important for our national competitiveness because we are increasingly trying to attract and develop research and development activities here in Ireland. We know that foreign-owned firms have a strong impact on the Irish economy by contributing substantially to Ireland’s exports, to jobs, to expenditure in the Irish economy and to Exchequer funds. Our participation will enhance Ireland’s reputation as a high-tech economy with strong intellectual property protections. This will boost our attractiveness to foreign multinational companies already established here and those making decisions on where to invest.

As I said, 17 countries have already ratified the treaty. These include Austria, Belgium, Denmark, Finland, Netherlands and Sweden. These countries are our direct competitors when it comes to attracting foreign companies. Competition for foreign investment in Europe is intense. We must keep upping our game as regards our value proposition. We want to ensure that Ireland remains well positioned to sustain our success in attracting foreign direct investment. Intellectual property protections are one of the factors that investors cite when making investment decisions. Our participation in the UPC represents an opportunity for Ireland to enhance the credibility of our messages to inward investors. If Ireland does not ratify the agreement, there will be a real risk of reputational and operational damage to Ireland’s innovation economy, particularly as non-participation may be perceived as a legal and structural weakness.

Perhaps less obvious but equally important is the work of our researchers in the higher education sector. The European Patent Office patent index 2022 reports that five of the top ten Irish applicants for European patents were from Irish universities. The main fields for patent applications from Ireland were medical technology, computer technology, pharmaceuticals, electrical machinery, apparatus and energy and biotechnology. The number of applications is increasing. Ireland is now ranked eighth in the number of European patent applications per million of inhabitants. Establishing a local UPC would demonstrate that Ireland is an intellectual property-friendly location for undertaking research and development in its higher education and research system. It will also help to attract researchers and inventors to Ireland.

Often with referendums, people can have concerns regarding sovereignty. I have no doubt that there will be commentators trying to muddy the waters by claiming that a "Yes" vote will diminish Ireland’s sovereignty as we participate in this court. Let us state some facts about this. The UPC will not replace existing patent protection schemes, but, rather, it will provide another option for our inventors. Irish national patents will still be dealt with in Irish courts. Unitary patents are new and the UPC will have exclusive competence in respect of unitary patents only. In other words, we have never had jurisdiction over these patents and therefore are not losing or reducing Ireland's sovereignty. Indeed, the referendum will permit a local division of the court to be established in Ireland. Why then do we need a referendum? If an Irish inventor was unhappy with how his or her patent was being used without their permission in another participating member state, he or she could seek protection through the local division of the court in Ireland, whose judgement will have direct effect in that other member state. This is to the benefit of Irish inventors.

I will conclude here because I know there are a number of Senators to come in. I have a bit more to say. I might get to it when summing up, if that is okay. I stress that we need to join this court. It is important that we do so. I humbly seek the permission of the House to put this question to the people on 7 June. I genuinely look forward to hearing the opinions and feedback of Senators. We have already had good discussions at the joint committee and in the Dáil.

Garret Ahearn (Fine Gael)
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I will not need five minutes. I only need a minute or so. In fact, my voice is nearly gone so I will only need a second or two. I welcome the Minister of State and his departmental staff to the Seanad. He outlined the Bill very well. It will have the support of the Minister of State's party in the Seanad. He also outlined the benefits it would bring and what it would mean for companies if the referendum on 7 June is successful in terms of the ease of applying for a patent and having it accessible not just to Ireland but to 17 and potentially 24 countries around the EU. If we do not vote for it in the referendum, it will mean that if companies apply for a patent in Ireland it will be confined to this country and if they want to get a patent in other countries they will have to do it individually in every single country. As the Minister of State articulated very well, that would have an impact on small to medium size businesses more than any others.

We as a party pride ourselves on supporting enterprise and businesses to the best of our ability. Nowadays, in a modern Ireland, businesses are not alone competing within their own country but right across the world, especially within the European Union. By having this referendum, which I hope will pass, it would support businesses in every village and town in Ireland if they have a good idea and they want a patent and to expand and do well on the back of it. We must do anything that we as a Government can do in that regard. The Minister of State and the Department are doing everything they can to try and make things as easy as possible for businesses to succeed. It will be important to deliver this key measure for certain businesses on 7 June. The referendum will certainly have my support.

Diarmuid Wilson (Fianna Fail)
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Before I call on Senator Keogan, I welcome to the Public Gallery the young ladies and gentlemen from Navan Youthreach who are here with their tutor and Dave Cullen, one of our ushers. Youthreach is a programme with which I am very familiar because I worked in Cavan Youthreach, which is not too far away from Navan, for almost 30 years. We were one of the first Youthreach programmes in the country, so I am very familiar with the excellent work that is carried out by Youthreach training centres throughout the country. I hope our visitors enjoy their day. I once again welcome them to the Houses of the Oireachtas.

Sharon Keogan (Independent)
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I welcome the proposed forty-first amendment of the Constitution. I also welcome protective and cost-effective provision for industry and innovation to establish the UPC. Embracing the spirit of Article 46 of the Constitution, this amendment seeks to introduce an amendment to the Constitution, subject to the approval of both Houses of the Oireachtas, followed by a referendum to allow the people to have their say to introduce this patent court.

Traditional European patents under the European Patent Convention are often regarded as costly to acquire and uphold. Patent owners face challenges due to the substantial expenses incurred in safeguarding their patents against infringements and legal disputes. This is especially challenging for small and medium enterprises and sole traders.

It is worth noting that the Intellectual Property Office of Ireland is based in Kilkenny. If the amendment to the Constitution is passed, the establishment of the court and the related premises in Kilkenny should be strongly considered also. Opportunities to decentralise courts, in particular niche courts such as this, should be strongly considered. The establishment of the UPC is a strong step in advancing legal protections outside of this jurisdiction.

The Agreement on a Unified Patent Court was signed during the Irish Presidency of the EU in 2013. It paves the way for a specialised court designed to handle private party litigations across participating EU member states. This initiative forms part of the broader unitary patent system, offering uniform protection in multiple countries through a streamlined registration process resulting in substantial cost efficiencies and reduced administrative burdens. It is my hope that this amendment will succeed because it will result in Ireland becoming the 18th participating member facilitating patent protection under the unitary patent system.

By ratifying the agreement, Ireland would stand to benefit from hosting a local division of the UPC, ensuring accessible, cost-effective options for patent protection and dispute resolutions. The cost-saving and operational efficiencies under the new system are substantial. They promote innovation and business growth while fostering a level playing field for Irish enterprises seeking to compete in Europe.

The strategy implications of Ireland's participation in the UPC extend beyond economic advantages. It would underscore our commitment to fostering research, development and innovation, and it would bolster our reputation as a favourable destination for high-tech investment, as we align ourselves with key competitors in attracting foreign business. Our involvement in the court would reinforce Ireland's attractiveness as an IP-friendly hub conducive to growth and technological advancements.

Furthermore, the establishment of a local UPC would enhance support for researchers within our higher education sector. This would reaffirm our dedication to nurturing a conducive environment for scientific advancement and technology breakthroughs. By aligning with the pervading patent protection mechanisms, Ireland could position itself as a preferred destination for IP innovation and research initiatives.

While sovereignty concerns may arise in discussions around the UPC, it is essential to emphasise that ratifying this agreement does not compromise Ireland's autonomy, rather it fortifies our leader framework for patent protection and promotes a favourable ecosystem for innovation and entrepreneurship. By seamlessly integrating the unified patent system with existing patent schemes, companies can tailor their IP strategies to suit their unique needs, fostering a dynamic landscape for intellectual property management.

The delayed implementation of the UPC witnessed various hurdles, including international challenges in Germany and the UK's withdrawal of ratification post Brexit. With the recent ratification by Germany in early 2023, the UPC came into force on 1 June 2023. It is now operational and poised to deliver effective patent protection to innovators across the EU.

I urge the Government and those who will spearhead the "Yes" campaign on this matter to be cautious and not to assume that Ireland will have a successful referendum. This is a potential challenge that the Government will face, in particular as it aims to run this referendum on the same day as the European and local elections. Rather than articulating the tangible benefits of a regrettably unpopular Government that does not stand to do well in these elections, a careful, considered campaign must be put in place to ensure that there is resounding support, information, and understanding provided to the electorate.

I will lend my support to seeking the success of this referendum. I hope the Government rises to the challenge of success. I also hope there is strong support for this transformative initiative that holds the potential to shape our innovation landscape for years to come. It would be a real shame if a protest vote against the Government were to result in a repeat of the rejection rates of the referendums on family and care. A clear, concise and lengthy campaign would contrast strongly with the referendums we held recently. I suggest this approach in the hope of this amendment succeeding.

I applaud the work of the Joint Committee on Enterprise, Trade and Employment. I look forward to an informative and engaging campaign.

Róisín Garvey (Green Party)
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Gabhaim buíochas leis an Aire Stáit as teacht isteach. I thank the Minister of State for the work done on this Bill. Ours is a small country but it has always been a country of innovators and original thinkers. We always come out on top. The Government has done so much in the context of investing in digital hubs. I meet small business owners and inventors. This Bill is about protecting inventors in order that they can get patents that will not cost them an arm and a leg. Up to now, the cost of acquiring a patent has been prohibitive.Up to this amendment to this Bill, it has been costly and complicated and you have to go to every country individually. This is a big win for the great minds, innovators and original thinkers of this country, and it is full of them. We have many in Clare and, I am sure, in Dublin. We have sown the seeds as a Government to create spaces, with these hubs, for these innovations to take place.

It would be good to look at having a local division of the court in Ireland. I suggest Clare; it is a great county. We have great fibre broadband. The west is awake. All our hubs are full and busy with good innovators. We have a huge amount of SMEs. I think 80% of our jobs are in SMEs. Nearly every week somebody contacts me about a new idea and a new thing they want to get patented.

I thank the Minister of State for his work. We have work to do to get this referendum across the line. The word "referendum" does not sit well with most people at the moment. It is on the day of the local and European elections. Nobody seems to be against us in this instance. There are no curve balls or debate based on falsehoods, which there was in the last referendum debate, though it was not all falsehoods. We like to have healthy debates based on honesty. I hope everybody in the House will continue to do that and not sow the seeds of doubt where they are not needed. We need this to be passed. We need to protect our small and brilliant innovators.

Alice-Mary Higgins (Independent)
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I pushed strongly for "Yes" and "Yes" on the last referendums and was deeply disappointed with the results. It is probably one of the biggest votes for inequality since the citizenship referendum. I do not believe that was the intention of all those who voted "No" but that is the effect. The care proposal was disappointing but I look to everything on balance. I weigh up my positions. I will be honest and say that regarding the patent court, I am currently weighing up and considering my view. I have a number of questions and concerns so I am hopeful this Second Stage debate is a chance to have those addressed and looked at. Many of my concerns relate to policy. The economic case is well made but I am looking to the wider piece of policy, checks and balances and freedoms. I hope to get assurances that satisfy me on many of them. Then I will look at wider concerns about how intellectual property rights have been playing out in recent years.

I seek clarity on the relationship between the UPC and the European Court of Justice. This is a separate piece but a concern I still have about arbitration courts, the investor-state dispute mechanism and so forth is they do not recognise, effectively, the European Court of Justice. I understand EU law has primacy in the UPC system but I wonder how that plays out and is given effect. I understand questions may be referred by the UPC to the European Court of Justice for ruling and that previous rulings of the European Court of Justice may have set precedent. However, it is not clear whether, moving forward, there are mechanisms to appeal to the European Court of Justice. This matters because the problem with the investor court system that was proposed is not simply the big picture of fines for states and corporations, which are not relevant to this context; it is also around the make-up of those courts because they were narrowly focused on a particular area of law. They did not have the advantage national courts, the European Court of Justice and others have, which is that they look to law in the round. They are not simply looking to contract law or tort law but are looking to balance that against environmental or human rights law, for example, the Charter of Fundamental Rights, and other aspects of our law at European or national level.

Decisions on patents being looked at in the round are important because there are points when intellectual property rights are up against human rights and environmental considerations, and we have seen those points recently. In that context, I want to know what assurance there is on where the European Court of Justice fits in. Is there a loss in relation to our national courts and in terms of ensuring matters are balanced in the round? These things need to be teased out. It is a relatively new structure. There is an argument to say that Ireland should be part of it and by being part of it we get to affect how the UPC works and its development. In that context, I would want to know what kind of voice Ireland would be in its development. I have been speaking to a number of people quite widely on this. The balance is often whether we are better to be in it or to be separate. If we have concerns, do we address them internally or by staying out of it until it is developed further? The question of the European Court of Justice is fundamental to how it works.

The Minister of State mentioned judges who are legally qualified and those who are technically qualified. Will he elaborate on the difference between legally qualified and technically qualified judges? Could we end up with judges with expertise in one area of law and not in a wider spectrum of law? That was another concern about the investor court system. I recognise this is different but I am looking to unpack those areas.

Another question I have is in the context of the appalling failure of European and wealthier countries in relation to trade-related aspects of intellectual property rights, TRIPS, during the Covid pandemic. The quote from Mike Ryan of the World Health Organization in the Oxfam report "Everyone for Themselves" is: “We failed because of the greed of the North. We failed because of the greed of the pharmaceutical industry." There is a huge issue with the prioritisation of intellectual property rights over human rights concerns about access to a global vaccine. Right now, starting on 16 March and going to 31 March, official negotiations are happening on the pandemic accord. I understand the European Union is potentially scuppering the entire accord - this is our global attempt to learn from the Covid pandemic - simply because of the prioritisation of protection of intellectual property for a few companies. Pathogen access and a benefit-sharing system seem to be where the EU is blocking it. I would appreciate if the Minister of State would indicate where Ireland is on that because it gives us a sense of where Ireland might be if similar dilemmas arose in the patent court. It is the idea the Commission may be willing to not deliver a treaty rather than compromise profiteering in intellectual property.

The tools we have at the moment - inadequate tools - include compulsory licensing. How might something like compulsory licensing be impacted by the courts? How will compulsory licences operate within the unitary patent system? Will a contracting state retain the ability to contract compulsory licences at national state level? That is where a licence is granted to say something needs to be made available despite property rights. Health is a crisis; climate is the next coming crisis. If we see the same guarding of intellectual property rights relating to climate we have seen in health, many across the global south, for example, will face doom.If EU law has primacy within the patent system, is there scope for questions to be referred to the CJEU for preliminary ruling, and what is that relationship going to be, particularly if issues arise over human rights implications or, say, the fundamental rights charter relating to patents? Many of the arguments in favour of UPC have used economic rationales, and while these are important, there are other significant issues with regard to how they affect access to patent-protected technologies, including access to medical technology. It is important in an everyday context.

For example, the Minister of State mentioned and we have heard a lot about SMEs. It would be very useful if we could have a breakdown as to how many SMEs are registering patents versus the amount of patents being registered by large corporations. It seems the marketability to large corporations and then the convenience to small business is the pitch. I simply got figures for the European Patent Office, EPO, for 2019. It was interesting that 25% of those were for medical technology and pharmaceuticals. Again, those are patents in the areas where access had been blocked. This is why I believe talking about the pandemic treaty is relevant in this context. What we may see as well is the question of the forum shopping. Perhaps the Minister could comment on that, and the danger whereby, as he said, if a decision is made in one country that will be binding in Ireland, where a lot of companies are headquartered at the moment. Is it going to affect our ability to respond in a humane and appropriate way to future health crises or international processes, either through compulsory licensing or other measures or is there a risk that Ireland would become the forum that is shopped with, and we become a convenient forum for lots of major companies to get a UPC patent, and in that way we become complicit in the blocking of access to technologies in a much wider sphere?

I am sorry there is not more time. I have more questions but I think this needs to be teased out. It is significant. We should not downplay it, and I simply think that while convenience or cost-saving are important things, when we make a change to our law we need to be very careful and considerate.

Paul Gavan (Sinn Fein)
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Well said.

Diarmuid Wilson (Fianna Fail)
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I thank Senator Higgins. Before I call on Senator Gavan, I welcome students and teachers from Meelick National School, who are here as guests of Deputy Alan Dillon, and Gorey Youthreach, who are guests of Deputy Paul Kehoe. They are all very welcome to Seanad Éireann and Leinster House, and I hope they enjoy their visit to Dublin and the Houses of the Oireachtas. I hope they enjoy the remainder of this debate for the period they are here. I call Senator Paul Gavan.

Paul Gavan (Sinn Fein)
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As always, the Minister of State is very welcome. The purpose of the Unified Patent Court is to fundamentally reform the patent system in Europe and Ireland, and to provide a legal framework. A single court ruling will be directly applicable in the member states that have ratified the Unified Patent Court agreement. This will enable patent holders to enforce their rights and defend patents in one single ruling, providing a cost-effective remedy and protections. Ireland reguires the successful passing of a constitutional referendum to ratify the Unified Patent Court agreement, as it entails a transfer of jurisdiction in patent litigation from the Irish courts to an international court.

At present, there is no single European patent valid in all member states. Instead, individual patents must be held in each country where the patent is to be applied. Applications can be made to either the national patent office in each country or by making a single application to the EPO. European patents are granted by the European Patent Office under the UPC. At present, most patents currently in force in Ireland have been granted by the EPO, which is a centralised European clearing house for patents. The Intellectual Property Office of Ireland, based in Kilkenny, has similar competence. However, most of the activity from a patent perspective tends to go through the EPO. These patents must subsequently be litigated separately in the national courts of each country, with separate legal representation and costs and with the prospect of different outcomes. Therefore, the main selling point of the UP and UPC is that it will create a patent enforcement that works effectively, efficiently and economically for companies and SMEs.

Sinn Féin understands the need for the UPC from a business perspective but there are concerns about how this will be put to the people. It will be a very technical and boring referendum topic and it will be difficult to engage with the public on this one. This referendum poses a significant question to the State and to its people. That question is the loss of sovereignty. What is the price we are willing to pay for this loss of sovereignty from the Irish judicial system? The Government must be clear with the people, with this House and with the country regarding the impact of this referendum on Irish sovereignty.

There is no doubt about the benefits the UPC brings for businesses, SMEs and entrepreneurs in particular but any handover of judicial powers to a European court must be fully explained, fully necessary, and wholly justified. As the saying goes: “Is the juice worth the squeeze?” That is the question for these Houses in debating this legislation. Are the benefits to business and the economy worth the transfer of sovereignty? These are significant constitutional questions, and has been recently proved, something being just good enough is not good enough when it comes to constitutional change.

I welcome the engaged debate on this Bill today, and I will be sure to reflect on the Minister of State’s contribution, those of my colleagues in the Seanad, and the contributions in the Dáil on whether amendments are necessary on Committee and Report Stages.

Before I finish, I also want to acknowledge that we have seen some progress with regard to the EU directive on platform work. We had a good engagement on that topic two or three weeks back, and I appreciate the work the Minister of State has done in that regard. I urge the Government now to engage with this fully in making sure we have legislation that is fit for purpose, and a transposition of that directive that really defends those very vulnerable workers we see each and every day on their Deliveroo bikes and so on, being paid an absolute pittance and being subjected to scandalous treatment in terms of bogus self-employment. I look forward to further work and co-operation from the Minister of State in that regard. We are very much interested in what he is going to say in response, so I thank him for his time today.

Neale Richmond (Dublin Rathdown, Fine Gael)
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I thank all of the Senators for their contributions to what is a lively and important debate. I accept the more general political comment that this is a very technical piece of work. It is going to be difficult to engage with people. I do not hide from that for an instant but it will require frank and open engagement, and clear and honest facts.

I have been involved in quite a number of referendums, long before I even joined a political party or got involved in politics. I got involved in campaigning for referendums through ordinary citizens' advocacy groups, particularly on European referendums. I certainly played a part in a number of European referendums that did not get through. I remember the last European referendum I was involved in - and I was part of a political party, I think I was a councillor at the time - was on the fiscal stability treaty in 2012. Following the results of the referendum and the post-referendum analysis, the key issues that played on the minds of voters were remarkable, and we are all talking about that at the moment and reflecting on it. It was remarkable, and it goes to the tone of the campaign by those who opposed it, that the two biggest issues that raised concerns were conscription into an EU army and abortion. This was to do with the fiscal stability treaty, or the fiscal compact treaty. The text of the treaty and what it was doing had absolutely nothing to do with those areas. It just goes to show the importance of debating a referendum on its clear merits and addressing the facts as they are exactly relevant, and perhaps not being brought into a wider policy discussion that may be parallel but that does not actually impact.

As I said from the outset, this is a really important referendum. It is really important not just for industry or SMEs but for the people who will benefit from these patents that will lead to inventions that will make their lives better. This may be from a personal health point of view, or it may be an invention that will make their working lives better. It will absolutely be of economic benefit to the State, and I do not think we should shy away from this, as it is one of the biggest selling points. It will drive increased tax revenues. It will create new jobs that we rely on societally in order to ensure that we have a country and a State that is fit for purpose.

I will try my best to address some of the specific questions but Senators might be so kind as to allow me respond directly via email to some of the slightly more technical matters, or we might just sit down and have a cup of coffee. It might be easier to do that rather than doing it on the floor of the Chamber.

Senators Keogan and Garvey both made very clear advocacy for the location of the court.There will be a court located in Ireland. Kilkenny is the location of the Intellectual Property Office of Ireland, as Senator Keogan said. Senator Garvey also mentioned Clare. Those are two fine locations with a clear judicial history and relevance to this matter. It is a decision that will be taken by the Minister for Justice and the Courts Service if the referendum is passed. Everything will be considered and we welcome feedback and insight.

Senator Gavan raised two matters. I stated earlier that there is no giving away of sovereignty involved. The status quo will remain. If we vote to join in this referendum, we will give other options to inventors to patent the work they are doing here in Ireland across 17 member states and potentially across as many as 24. If inventors choose not to do so and just patent their work in this jurisdiction, that right still remains. Rather than giving away sovereignty, this is allowing us to have access to a further plane to provide protections for those inventions.

I will deviate from the topic matter to refer to the EU platform workers directive. I appreciate the Commencement matter that Senator Gavan introduced three weeks ago. The debate was held last Monday afternoon in Brussels. I made a public contribution, spoke firmly in favour of the directive and gave Ireland's backing to it. We voted in favour of it, and I specifically referenced the organisation of platform workers who have been on the Irish streets to protest the terms and conditions they are simply not being afforded. We have previously discussed the issue in this House but I fundamentally believe that their workers' rights are at risk. That needs to be addressed. This directive would address part of that, but let us be honest and state that it is not a panacea. It requires more domestic action. Much of it is down to enforcement rather than legislation. As we have discussed previously, however, I am committed to pursuing that as a legal and policy matter. We have already started preparations on this directive. It is going to be legislatively onerous for Ireland. Much of what is in the terms of the directive is already in place in this country, which is why we are able to support it so easily. It will, however, place a legislative burden, for want of a better term, on officials in my Department, but they have already started the work. We will more than happily take insight from the Senator, the trade union movement and the companies in question.

Senator Higgins and I have not engaged since I left this House. It is great to be engaging with her again. I miss our trips to Strasbourg for the Conference on the Future of Europe. Those were different times. The Senator raised a number of questions that I will endeavour to answer as well as possible but with her indulgence, we might respond to her directly and provide public answers because they are technical and, to be frank, difficult questions. Some of her questions were ideological and I will be able to respond to those.

The court of appeal of the UPC will be in Luxembourg. The Senator asked about the development of the patent court going forward. Because we have not ratified, my officials only have observer status at the administrative committee meetings. We can only have influence if we join. We either sit on the sidelines as it continues on its path or we join and influence it. We had a lot of influence prior to signing the treaty in 2013, as did all member states, but until we ratify it, we do not join it. That is understandable. You do not let someone join a club and influence the decisions of the club if they are not a part of it. I fundamentally believe that is why it is much better to be part of the court from the outset.

The Senator also asked about compulsory licences. There is a bit of work to be done in that regard. I will be able to come back to her directly on that issue, as I will on forum shopping, which is a real concern. If this referendum is successful, I hope it will attract business to Ireland. I hope this will encourage researchers, academics and inventors either to come to Ireland or to stay in Ireland. We do not want them to be doing that as some sort of convenience. It is a real investment in their work and, in turn, in the State's attractiveness.

There are two other points to make before I talk about TRIPS and the wider issues. The Unified Patent Court is a court common to participating EU member states. In the same way any national court must respect EU law, the UPC must apply a uniform interpretation of EU law. Similarly, any judgments of the European Court of Justice are binding on the UPC. The UPC will have to refer questions to the European Court of Justice on the interpretation of EU law, particularly in respect of the regulation of the unitary patent. The European Court of Justice will not act as an appeal court of the UPC.

Large companies for which research and development constitutes a significant investment, such as those in the pharmaceutical, medtech and other IP-intensive industries, already have a high awareness of the IP system and recognise the values of intellectual properties. The SME sector in particular needs greater IP awareness, to be quite frank. We are not doing enough outreach to SMEs. A couple of weeks ago, I spent some time in Tipperary with Senator Ahearn. We visited the local enterprise office. We also visited a particular company and I cannot give its name because the work it is doing is so sensitive. It is a very small company of just two individuals. They had been working in medtech for a large multinational corporation but have gone out on their own to develop medical technologies that will be absolutely life-changing for people. We want to give them opportunities. What they are inventing will be patented in the next six to 12 months and we want it patented here. We want it to be protected here. We want them getting rewards and we want their work to be recognised. We also want that technology to be developed here for the most wide use possible. Over 99% of Irish enterprises are categorised as SMEs and studies by the EU Intellectual Property Office, to which the Senator referred, have shown that SMEs which have filed at least one IP application are 21% more likely to experience subsequent growth. Similarly, SMEs that own intellectual property have 20% higher revenue per employee than companies that do not. They also pay wages that are, on average, 19% higher.

I will move to the Senator's point about forum shopping. A potential infringer who wants to start an independent revocation action or an action for a declaration of non-infringement does not have a choice and must go to the central division, which is in Munich, Paris or Milan, depending on the field of technology of the patent. For this reason, certain critics have referenced forum shopping. However, the effect of the so-called forum shopping within the UPC shall be very limited and does not outweigh the disadvantages of the current patent litigation in Europe. There are two important reasons. A local or regional division of the UPC shall not be composed of solely national judges. It must have at least one from the member state where it is resident but the other two can come from any other participating nation. On the contrary, local divisions with fewer than 50 cases per year will only have one national judge and as I said, two judges from other contracting member states. The mechanism of multinational panels by itself shall contribute to a large extent to constituent and qualitative case law at all local or regional divisions.

The UPC system only has one court of appeal, as I said, in Luxembourg. That means that all cases initiated at the court of first instance and that are subject to appeal end up in the same court of appeal. It is impossible to forum shop in that regard because all cases go to the same court of appeal. The role of the court of appeal will be important to correct any risks of local or regional divisions having too much national influence, if that makes sense in response to the Senator's concern.

The Senator can correct me but her final point could be described as relating to more of an ideological debate. We had that at the height of the Covid-19 pandemic in relation to the TRIPS waiver and compulsory licensing. We debated the issue at length in this House and in the Dáil. It comes down to the ideology and ethics behind patents. Why do we protect patents? Why do we ensure those people who own patents can protect them? It is in order to encourage people to develop technology, treatments or drugs in the first place. The products are sold commercially but one could ask that if there was not that commercial element, would those people develop those patents in the first place? That is an area on which the Senator and I simply disagree. We have disagreed many times in the past but that does not make us colleagues any the less. We can work together to see where there is common ground. The Senator and I have been on the same side of referendums over the past decade. However, crucial to consideration of the Unified Patent Court and the policy that surrounds it, and this is where I return to my original point, is the separation of general policy and the specifics of the question we want to put to the people. We want people to know that we have an existing system whereby someone can register a patent that will be protected solely in the Irish system but his or her work can be copied or done in any other EU member state without any recourse. We want to give people the option of expanding that by making Ireland the 18th member of the UPC.If you develop a new drug and register an Irish patent with this court, it will be protected across all 18 member states. This goes to the collective strength of co-operation at an EU level that we see in many different fields. This is one. As I said, I do not have the fine detail to answer all the Senator's questions. I will take the text of this debate and refer to the Senator by email. I will then follow up or if the Senator wishes to make specific submissions to my office, we will of course engage.

I would like to think I covered all the other specific questions. I sincerely thank all the Senators who made contributions and hope we can see this referendum take place. It is good that it will take place on 7 June because people will be thinking with an EU focus as the European elections are being held on the same day.

This provides a great opportunity for many people on this Stage. It is obviously something we should move forward with, but with the humility to know that any campaign has to be open, transparent, clear and based on facts.

Diarmuid Wilson (Fianna Fail)
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When is it proposed to take Committee Stage?

Neale Richmond (Dublin Rathdown, Fine Gael)
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Next Tuesday.

Sharon Keogan (Independent)
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I do not believe we are sitting next Tuesday.

Diarmuid Wilson (Fianna Fail)
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The House has not adjourned yet. That has not been decided yet.

Sharon Keogan (Independent)
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I see.

Diarmuid Wilson (Fianna Fail)
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When is it proposed to take Committee Stage?

Neale Richmond (Dublin Rathdown, Fine Gael)
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Next Tuesday.

Diarmuid Wilson (Fianna Fail)
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Is that agreed? Agreed.