Two-Thirds of In-House Lawyers Remain Uncertain on Unified Patent Court Vote

Two-thirds (66%) of in-house lawyers remain undecided on how they would vote in the forthcoming Unified Patent Court referendum, according to our latest survey.

We polled 240 lawyers from both the public and private sectors at our recent webinar. The results underscore the pervasive uncertainty surrounding the referendum, which was originally planned for June but has been postponed.

Voters will be asked to approve the insertion of a new subsection in the Constitution, allowing the transfer of jurisdiction in patent litigation from the Irish courts to the EU’s Unified Patent Court (UPC). The UPC has been in force in 17 EU member states since June 2023.

Gerard Kelly, Partner and Head of our Intellectual Property team, said: "Our findings suggest that the decision to defer the referendum was the right move. With two-thirds of in-house lawyers still on the fence, it's clear there is a pressing need for more robust discussion on the pros and cons of joining the UPC.

Before Ireland is asked to vote on such a significant legal reform, it is crucial that the electorate is aware of the implications for our national legal system and for businesses operating within it. Engaging in this dialogue is essential to ensure that all stakeholders have a clear understanding of the potential impacts and benefits."

The survey found that nine out of ten businesses (90%) are not fully prepared to handle IP challenges related to artificial intelligence (AI). 31% said they are 'not prepared' while 59% said they are only ‘somewhat prepared’.

Gerard Kelly commented: "The integration of AI into business processes is inevitable and brings with it a number of IP challenges. For example, last year the US District Court determined that an AI-generated artwork could not be protected by copyright, because it was not made by a human. This is consistent with findings in respect of inventions made solely by AI.

Given our legislative requirements it is unlikely that copyright or patent protection will be granted to works or inventions generated solely by AI in Ireland. From a client perspective, we might start to see more disputes in the European courts in respect of AI-generated works and the outputs used from AI models so some care will be needed on how businesses embrace that change.”

This emerging legal uncertainty around AI and copyright aligns with broader enforcement challenges highlighted by the survey. When asked about the type of IP protection hardest to enforce, 32% pointed to copyright protection as the most challenging, followed closely by trademark (26%) and patent protection (22%). Trade secret protection was also noted as difficult by 20% of the surveyed lawyers.

Hazel McDwyer, Intellectual Property Partner, said: "The complexity of enforcing copyright protection is a growing concern for many of our clients. As content becomes increasingly digital, traditional enforcement mechanisms struggle to keep pace and legislation continues to play catch up.

With our clients constantly developing cutting-edge technology, copyright can be one of their key IP rights. We work with clients to ensure that they firstly own the copyright in their content and technology and are then well placed to enforce through a number of mechanisms."

The survey also highlighted the key challenges faced by companies in managing intellectual property (IP). The majority (44%) of respondents identified keeping up with legislative changes as their primary challenge, followed by concerns including protection against infringement (25%), cost management (18%), and international enforcement (13%).

Hazel McDwyer added: “The challenge of keeping pace with legislative change is a common theme we are hearing from clients across all of the firm’s key sectors. The rapid evolution of some technologies has led to a range of new IP related legislation.

It is critical for businesses to ensure they are informed and well-advised in order to protect their intellectual property and maintain their competitive edge. This is particularly the case with the European elections taking place in June, so we can expect further changes in legislative focus in the coming year.”

Read about the survey results on Irish Legal News, the Law Society of Ireland Gazette and the Business Post (partially behind paywall).

For more information and expert advice on IP matters impacting your organisation, contact a member of our Intellectual Property team.