02 December 2008

My Memories of Sir Hugh Laddie

I was on my way to a conference when I heard of Sir Hugh's death and could manage only a short announcement. But, I had to say more because I was really sorry to learn of his death. I can't say I knew him at all well but I did see enough of him to like and respect him. Here's why.

VISA Trade Mark Application
I first met Hugh Laddie in 1983 when I was legal advisor to VISA International for Europe, the Middle East and Africa.  My employer had instructed Lloyd Wise (now part of Marks & Clerk) to apply to register VISA as a trade mark for travellers cheques and payment cards. In those days, trade marks could be registered in the UK for goods but not services (see Aristoc v Rysta [1945] RPC 65). In the USA it was possible to register "service marks" for services but service marks were unknown here. The examiner smelt a rat and refused the application on the grounds that our application was tantamount to an application to register a trade mark for a service. We appealed and Lloyd Wise briefed Hugh Laddie to represent us before the Registrar. Although trade mark registrations were handled centrally from San Mateo, I attended the hearing as I was the local in-house lawyer. 

I think the hearing officer was Mr Egan.Hugh Laddie's instructing agent clearly held him in awe. He spoke admiringly of the inventor of Anton Piller orders (search orders as we call them now) and explained how they were known as "Laddie orders" in some parts of the world. He had done all that before he had even taken silk.   When I met the great man I was surprised how ordinary he looked. Not particularly tall or imposing in the way that some counsel looked. The hearing was nothing like any court or tribunal hearing that I had ever attended. It was very informal. There were only four of us - Mr Egan, the agent, Hugh Laddie and me. I knew how much was on his brief and I was surprised that he or rather his clerk in FTB could justify it.   However, I changed my mind very quickly once he got started. I had read the Act and the cases and thought I knew the point well but was amazed at the arguments he could conjure. Clearly a very bright man.

After the hearing he had a little chat with me.   I told him that I had been called to the Bar. He replied "Well why aren't you in practice? You really should come to the patent bar."   I am not sure that he meant it but I took him at his word and, many years later, here I am. I came by a different route from most IP barristers. It's not been easy. It's still not easy. In fact it is harder now than it has ever been to carve a living. But I am very glad I followed his prompting. IP is the most interesting area of the law and I have enjoyed myself.   I owe a lot to Sir Hugh just for that.

The Only Time I was against Hugh Laddie
I was instructed by a large firm of solicitors in Leeds (now part of a legal conglomerate) which was acting for a well known toy and games manufacturer to advise on a claim for breach of confidence that had recently been launched on legal aid. The claimant ("plaintiff" as he or she would have been called in those days) had submitted an idea for a game which had not been acknowledged. Low and behold the games manufacturer had launched a game with all the features of the unsolicited proposal. Imagine my surprise when I looked at the pleadings and found that they had been signed by Hugh Laddie. They were, incidentally, beautifully settled. What impressed me most was that the statement of claim was accompanies by a separate set of particulars of breaches rather like particulars of infringement in a patent claim under RSC Order 104 even though the Rules did not require it of other IP claims.  I learned that trick and it went down a treat among the sort of Manchester solictors who turn up to LES dinner meetings.  Another thank you for teaching me that trick.

Fortunately, we had an audit trail and could point to the author of our game and show that she knew nothing of Hugh Laddie's client or his unsolicited suggestion.   I was curious to find out more about my client's business and found that it employed a host of people to devise new games. They seemed to have come up with just about everything under the sun. And I learned just how far the odds were stacked against private inventors and other members of the public who make unsolicited suggestions to established businesses. One of the bits of advice that I give at every IP clinic and every inventors' club is to make the invention yourself. Don't just do the rounds of the manufacturers. They are unlikely to be interested. And if one actually takes up your suggestion don't expect gravy for life. They are looking out for their shareholders - not you - and at least some of those shareholders will want to weasel out of paying royalties if they possibly can.   One of the things I said at Sheffield this evening.

The Patent Bar Dinner
Hugh Laddie became chair of the Patent Bar Association (as the IP Bar Association was then called) and he gave a speech to the Association's dinner in Middle Temple just before his elevation to the Bench. Three generations of patent judges were there: Sir Douglas Falconer, Sir William Aldous and Sir Robin Jacob.  Taking a maritime analogy, Hugh Laddie compared Sir Douglas to a majestic galleon in full sail, Sir William to a sturdy battle cruiser and Sir Robin to a rubber dinghy with an outboard motor. Sir Robin was very disgruntled afterwards.

On the Bench
I was driving through France in June 2005 when Alex Khan texted me to say that Sir Hugh had resigned.  I had never heard of such a thing. I stopped the car at the first service station and called all my friends in England to find out whether it was true and if so why. I got the answer to the first question soon enough but I have never received an answer to the second. I think it was a great pity that he went when he did.   He gave some very bold judgments such as Series 5, Arsenal, Cala Homes and Zeno Davidoff which to my mind made a lot of sense even though they were reversed or just not followed. Lord Denning did the same thing.   His judgments stuck because he became Master of the Rolls. Who knows how far Sir Hugh would have changed the law had he stayed on the bench.

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