Vitoria, Mary

Education
Bedford College (London) (BSc and PhD); University of London (LLB)

Call to the Bar
Lincoln’s Inn (1975); QC (1997); Bencher (2004)

Chambers
Francis Taylor Building

Pupils
Deborah Fosbrook, Jonathan D. C. Turner, John Hornby, Mike Tappin, Charlotte May, Jess Bowhill, Robert Onslow , Emma Himsworth, Phillip Robert.

Cases
Belegging-en Exploitatiemaatschapij Lavender BV v Witten Industrial Diamonds Ltd[1979] FSR 59
Garlock Inc’s Application[1979] FSR 604
Netlon v Bridport-Gundry Ltd [1979] FSR 530
Bestworth Ltd v Wearwell Ltd [1979] FSR 320
Vernon & Co (Pulp Products) Ltd v Universal Pulp Containers Ltd [1980] FSR 179
McCain International v Country Fair Foods[1981] RPC 69
Thermax Ltd v Schott Industrial Glass Ltd[1981] FSR 289
Politechnika Ipari Szovertkezet v Dallas Print Transfers Ltd[1982] FSR 529
RCA Corp v Pollard [1982] FSR 369
Hoover Plc v George Hulme (Stockport) Ltd[1982] FSR 565
RCA Corp v Pollard[1983] FSR 9
Century Electronics Ltd v CVS Enterprises Ltd[1983] FSR 1
Shelley v Cunane[1983] FSR 390
Guilford Kapwood Ltd v Embsay Fabrics Ltd[1983] FSR 567
Independent Television Publications Ltd v Time Out Ltd and Elliott[1984] FSR 64
Imperial Group Plc v Philip Morris Ltd[1984] RPC 293
Phonographic Performance Ltd v Grosvenor Leisure Ltd[1984] FSR 24
PRURIDERM Trade Mark[1985] RPC 187
Harris Patent [1985] RPC 19
Tekdata Ltd’s Application[1985] RPC 201
Geographia Ltd v Penguin Books Ltd [1985] FSR 208
Beecham Group Plc v Gist-Brocades NV[1985] FSR 379
Chelsea Man Menswear Ltd v Chelsea Girl Ltd (No.1)[1985] FSR 567
McDonald’s Hamburgers Ltd v Burgerking (UK) Ltd [1986] FSR 45
ALWAYS Trade Mark [1986] RPC 93
Ogawa Chemical Industries’ Applications[1986] RPC 63
Intera Corp’s Application[1986] RPC 459
CPC (United Kingdom) Ltd v Keenan[1986] FSR 527
McDonald’s Hamburgers Ltd v Burgerking (UK) Ltd [1987] FSR 112
Mothercare (UK) Ltd v Penguin Books[1988] RPC 113
Kakkar v Szelke[1988] FSR 97
Smith Kline & French Laboratories Ltd Cimetidine Patents [1988] RPC 148
Prangley’s Application[1988] RPC 187
Express Newspapers Plc v News (UK) Ltd[1990] FSR 359
Mirage Studios v Counter-Feat Clothing Co Ltd[1991] FSR 145
Shoketsu Kinzoku Kogyo KK’s Patent[1992] FSR 184
C&H Engineering v F Klucznik & Sons Ltd (No.1) [1992] FSR 421
MacMillan Publishers Ltd v Thomas Reed Publications Ltd [1993] FSR 455
Morrison Leahy Music Ltd v Lightbond Ltd[1993] EMLR 144
AL BASSAM Trade Mark [1994] RPC 315
Keays v Dempster[1994] FSR 554
Origins Natural Resources Inc v Origin Clothing Ltd[1995] FSR 280
Hodge Clemco Ltd v Airblast Ltd[1995] FSR 806
AL BASSAM Trade Mark [1995] RPC 511
International Telesis Group Service Mark [1996] RPC 45
Roussel-Uclaf v Hockley International Ltd [1996] RPC 441
Hunt-Wesson Inc’s Trade Mark Application [1996] RPC 233
Cavity Trays Ltd v RMC Panel Products Ltd [1996] RPC 361
ice and Safe Attitude Ltd v Piers Flook[1997] FSR 14
ETERNITY Trade Mark[1997] RPC 155
Azrak-Hamway International Inc’s Licence of Right Application, Re [1997] RPC 134
SWISS MISS Trade Mark [1997] RPC 219
Petra Fischer’s Patent Application[1997] RPC 899
Phonographic Performance Ltd v Maitra [1998] FSR 749
Attorney General v Blake[1998] 1 All E.R. 833
SWISS MISS Trade Mark [1998] RPC 889
Romeike & Curtice Ltd v Newspaper Licensing Agency Ltd [1999] EMLR 142
Performing Right Society Ltd v Boizot [1999] EMLR 359
Pensher Security Door Co Ltd v Sunderland City Council [2000] RPC 249
Julian Higgins Trade Mark Application [2000] RPC 321
French Connection Ltd v Sutton [2000] ETMR 341
Euromarket Designs Inc v Peters [2001] FSR 20
Jones v Tower Hamlets LBC (No.2) [2001] RPC 23
Novello & Co Ltd v Keith Prowse Music Publishing Co Ltd [2004] RPC 48

Further References
H Laddie, P Prescott, M VitoriaThe Modern Law of Copyright(Butterworths, 1980)
M Vitoria (ed) The Patents act 1977 : QMC patent conference papers (Sweet & Maxwell, 1977)

Vitoria, Mary
Facilitator: How did you became interested in patents?
Mary Vitoria QC: Right. I must start very briefly from school. I shall abandon modesty and just say that I was good at all subjects and probably most interested in history but – I thought – I was going to have to earn my living. My father was dead, so I was going to have to earn a living and look after my mother. I went into the sciences part of the school because I thought it was easier then (this is 1960, 1961) to get a job in sciences so I went into sciences, and then did a chemistry degree at Bedford college, which is in Regent’s Park, all women’s college at the time. That was 1961 to 1964. I stayed on and did a Ph.D but by that time I was fed up with being a student so I worked hard and did it in two years.
I finished that in 1966, and then I did postdoctoral research in chemistry at Simon Fraser University in Vancouver, British Columbia, until 1968, came back to London and got a job at the Patent Office. The driver for having the job there was a boyfriend because he preferred me to be in central London rather than on the outskirts doing research. Anyway, I started off working at the Patent Office, I think, in 1968 and they initially put you in a training group, I was there for about six or nine months and then I (was) moved into the sort of chemical group, doing organic compounds generally, but they also got you to do other things like games and toys. I remember to be given Espresso coffee machines, which – when I looked at the patents I never understood what was going on in these things and probably you’ve got an Espresso coffee machine dodgy patent out there dating from the 1960s. Anyway, I got incredibly bored at the Patent Office. I found that the work that they demanded from you I could get done a week’s work in about a day or in a day and a half. Chemical Patents are very easy, it was just to read through and decide. Mostly it was whether the claims were based on the description. They never gave you any background or understanding, I never understood why the claims had to be based on the description. You never understood that that was in relation to infringement or the width of the patent and things like that. You kind of worked in a vacuum for some reason. Anyway, having got bored, I found out that the Patent Office encouraged people to study law because in the higher echelons of the office like the hearing officers they would have law degrees. What they did was either pay for your course or buy your textbooks or something. After about two years at the Patent office, I decided to do a Law degree. I did the London external and I did a first term evening course at Central London Poly, which had rooms over Holborn station and that was mostly barristers lecturing. I thought… well, all they are doing is paraphrasing the textbook and I could do this at home more rapidly and more efficiently, so I never went to any other classes. I just continued studying and I don’t think I read any cases for the long three years of my degree. Anyway, I ended up with an upper second and at that point in time I got so bored with the Patent Office that I moved to the Science Research Council as an administrator, acting as a Secretary for one of their grants committees and again I found that job rather boring.
 
Facilitator: You were amazingly qualified for that job by then.
Mary Vitoria QC: By that time, I was married for about two years, I am still married with the same man but by that time, I had been married for two years and I decided to apply for a job at North London Polytechnic teaching law. Oh, I know, I had not done my finals in the law degree, so I was bit arrogant applying for this job but because I got a Ph.D. in Chemistry, I thought I should probably be all right and luckily I got the job. I was teaching land law and trusts and I think a bit of International law at North London Poly for two years and I began to think – well, I only had an academic view of the law, it would be nice to see what the practical side of things was.
I started – I think in June – cramming to do the Bar exams and I took them in September. I think I had exams in September, I can’t quite remember it but it was the year I moved from North London Poly to Queen Mary College. I got a First in the Bar exam and again that was just home study. The chap at the Council of Legal Education said: where did you study? I said, “I just studied at home”. He said, “Hmm, didn’t say much of our lectures.” Having got the first, I taught for a couple of years at Queen Mary, again on Land Law. I think in the first year, Bill Cornish was doing the evening classes of the LLM and he was doing the Intellectual Property course. He wanted to go off to Australia the following year, so I was deputed to sit in on his courses so I could teach it or half of it at the LSE for the following year. Because of the Patent office background obviously I was the suitable candidate for that. I had got the sort of the barrister’s qualifications but I thought: well, I’m still only an academic lawyer, it would be nice to do pupillage.
I thought it would inform my teaching and I would be a better teacher, better academic if I had done some practice. I chatted to Bill and then he fixed the mid-term pupillage with Robin Jacob when we were over in Francis Taylor building. I think I started pupillage in 1977 and after about three or four weeks I thought, “Oh, this is the life.” And probably after about six or seven weeks or so I thought, well, I would not mind being a barrister. That was in the days when you didn’t have pupillage interviews and things like that. I was very lucky: I got taken on; and apparently, according to Robin, Blanco was very instrumental. I mean, there were great doubts because I was the first woman [at the patent bar] as to whether I would make a go of it. I kept teaching at Queen Mary, I think, full time for the first year of practice and then I went part time for a year and then I gave it up. The clerks and the barristers were quite pleased because they thought “well, she’s got a full back position if she doesn’t make a go of it”. That’s how I ended up in chambers.
Facilitator: All right, so there are lots of things we could follow up on here. Can we start with the last, why were they worried that a woman wouldn’t be able to make it?
Mary Vitoria QC: Well, the reasons given were [that] she will have children and leave, basically. I think it was couched in terms of ‘well the clients will feel she is not aggressive enough or that she is not physically capable of running a long case or that she is more likely to have children and leave, whereas a man just carries on’. I think those were the reasons given, and some of them might have been the barristers own fears but they were sort of placed on to ‘it is the clients fears’ – you could displace the anxiety on to somebody you couldn’t claim and–

Facilitator: And who was in chambers (Francis Taylor Buildings) when you arrived?

Mary Vitoria QC: Blanco was head of chambers. I think this is in order of seniority, and Julian – no, it was Anthony Walton, Julian Jeffs, Kynric Lewis, Robin –Michael was nominally just a little bit senior in call to Robin. So it was Michael [Fysh], Robin [Jacob], Peter Prescott, Hugh Laddie, Mark Platts-Mills, Jeremy Davis, George Hamer and then me.

Facilitator: Tompkin, Geoffrey Tompkin, or Kenneth Johnston?

Mary Vitoria: No, they had left.

Facilitator: Had they already left?

Mary Vitoria: Yes.

Facilitator: And how was pupillage life?

Mary Vitoria: Well, I enjoyed it. I suppose, probably for me, knowing that I had a full-time job, meant that not everything was staked on it as it is for younger people. I mean I didn’t come too early – I was about 33 by the time I joined chambers, so I enjoyed it. It was jolly hard work. I suppose you are always anxious that you are doing the right thing or making the right decisions and so on, but I mean Robin on the whole was very easy to get on with.

Facilitator: Did he delegate lots to you? I mean… doing lots of pleadings.

Mary Vitoria: Yes, a fair amount, yes.

Facilitator: So there was a lot of hands on stuff.

Mary Vitoria: Yes, yes.

Facilitator: Rather than just following somebody around…

Mary Vitoria: Yes, certainly when I joined and for many years afterwards it was very much still the practice that you don’t send pupils into court to do anything on their own. That was maybe due to some agreed standard or something like that. I think probably because most of the clients were commercial clients, it was felt that they won’t sort of trust something to a pupil if they were going to muck it up somehow. Generally speaking there wasn’t hands on experience in court. But yes, you will do some pleadings, you will sit on conferences, discussed it beforehand, etcetera. Generally, pupils were not expected to say much during the conference, and if they did that sometimes was recorded as a vulgar arrogance or insensitivity and held against them when it was time to decide whether they should be taken or not.

Facilitator: What did you do then? – because as you say, by that time you had got a lot of experience, so, if you were in a conference that was about chemistry and a chemical patent, I would have thought it would be pretty hard for you to keep quiet.

Mary Vitoria: Yes, I mean, on the whole, I don’t think we tended to go much into the chemistry of it. It was mostly sort of tactics, and you know, personalities of clients, whether this is going to stand up in court or not rather than going to the sort of nitty-gritty of patent law itself. If I remember correctly, American Cyanamid was in 1975 and I became a tenant in 1978, in the beginning. Robin became silk at around that time, and I think he did very little cross examination and full trials until after he took silk, from what I remember. It was mostly injunction work. [American Cyanamid v Ethicon Ltd [1975] UKHL 1].

Facilitator: One thing that we talked to lots of people about is American Cyanamid and how it transformed the practice from having mini- trials into much quicker proceedings based on the balance of convenience of the case, if that’s the way you want to put it. But there was a degree of concern because these mini trials constituted a lot of the work before American Cyanamid. Do you think that was something that they were worried about in relation to taking you on initially?

Mary Vitoria: No, I don’t think I picked that up. I think there was generally quite a lot of work around. I remember doing devilling in my first year of practice but then not afterwards. I remember Hugh Laddie always saying that this will never last or that it will come to an end but it did last and it got heavier and heavier, so we took on more people.

Facilitator: That’s really interesting. We haven’t heard about that; the sort of stories we have heard so far are about building up IP litigation work over the 1970s and throughout and not much expressions like Laddie’s that this might be just temporary.

Facilitator: One of the questions about life in Francis Taylor Building was the chambers’ tea that became particularly famous in chambers, what was that?

Mary Vitoria: Chambers’ tea, well, we always used to go about 4 ‘o clock, and have tea which was sort of set out in somebody’s room, generally Blanco or Anthony’s, because they had large rooms. People would come back from court, say Robin and Michael, and they would say “someone has given me a really hard time because he was trying to run this argument, what do you think?” And we all sort of discuss it. Sometimes the opposing counsel would also be in chambers. Having given a very favourable opinion to A, B would come in and we would say: “Oh, I can’t talk about it, oh you’ve got a rotten case there” and so [we would] start teasing them. I think [chambers’ tea] was very, very instructive; you would see how people would put arguments and think about cases or the different ways of putting things. It was just very instructive for young barristers to have that kind of environment.