Context: Patent judges in different parts of Europe were and remain interested in serving on the Unified Patent Court (UPC). They are even prepared to commute by plane, which ip fray believes the UPC should avoid as far as possible in light of climate change policies (May 28, 2024 ip fray article).
What’s new: Surprisingly, Judge Françoise Barutel is retiring from the UPC’s Court of Appeal as of September 8, 2024 for unspecified personal reasons. The UPC made the official announcement yesterday (a public holiday in many of its contracting states). On September 9, 2024, Emmanuel Gougé will take her seat. In the meantime, he will retire from Pinsent Masons.
Direct impact: Mr. Gougé has bar admissions both in France and the UK, which means that he will be in a particularly strong position to hear and decide English-language appeals, of which there will be plenty.
Wider ramifications: A sample of one does not make a statistic. There could be any number of reasons for Judge Barutel’s personal decision, so for the time being there is no reason to suspect, much less assume, that the UPC has internal problems. The appointment of a patent litigator from private practice is surprising and may be internally controversial, even more so when considering that he goes straight to the Court of Appeal as opposed to first serving on the Court of First Instance.
Pinsent Masons will presumably deactivate Mr. Gougé’s attorney profile in September. For future reference, this is how his professional focus is presently described:
“Emmanuel Gougé is a renowned counsel and litigator in IP law, with a strong focus on patents, trade secrets and trademarks. Emmanuel has been involved in a range of multi-jurisdictional IP matters. His practice focuses mainly on electronics, automotive, aerospace, life sciences, and medical devices. Emmanuel has been involved in a wide range of cross-border litigations and has played an instrumental role in advising clients on multi-jurisdictional matters.”
He’s been with Pinsent Masons since 2011. In 1994, he was admitted to the Paris Bar, and in 1998, he became a solicitor in England and Wales. He’s presently heading Pinsent Masons’s French IP practice.
In 1991, he participated in a joint French-German Master of German and Business Law program by Panthéon-Assas University – Paris II and Ludwig-Maximilian University, Munich. That, too, is noteworthy with a view to the UPC.
It could be that Mr. Gougé has reached a point in his career where the difference in income between private practice and a judgeship on the UPC’s court of Appeal is not much of a consideration, and he opted for an interesting new position. In the U.S. and the UK, unlike such countries as Germany, judges are typically recruited from lawyers in private practice.
A revolving door between the bench and the private sector would raise issues. But there is no particular reason to assume that Mr. Gougé would return to Pinsent Masons after a few years.
It is, however, possible that certain judges on the UPC’s Court of First Instance (Central and Local Divisions) feel they should have been promoted instead of appointing a patent litigator from private practice straight to the Court of Appeal. For political reasons, the choice would probably have been limited to French candidates anyway.