Wilson, Alastair
Education
Pembroke College (Cambridge)
Call to the Bar
Middle Temple (1968); QC (1987); Recorder (1996)
Chambers
3 Pump Court
Pupils
Michael Hicks; Graham Shipley; Christine Fellner
Cases
Merchandising Corporation v Harpbond [1971] 2 All ER 657
Polydor Ltd v Harlequin Record Shops Ltd[1980] FSR 362
Therm-a-Stor Ltd v Weatherseal Windows Ltd [1981] FSR 579
Hoover Plc v George Hulme (Stockport) Ltd [1982] FSR 565
Nachf’s Application [1983] RPC 87
Express Newspapers Plc v Liverpool Daily Post & Echo Plc[1985] FSR 306
British Leyland v Armstrong Patents[1986]AC 577
Island Trading Co v Anchor Brewing Co[1989] RPC 287
Ford Motor Co. Ltd.’s Design Applications [1994] RPC 545
Designer Guild Limited v Russell Williams (Textiles) Limited (Trading As Washington Dc)[2000] UKHL 58
LucasFilm Ltd & Ors v Ainsworth & Anor[2011]UKSC 39
Facilitator: And could you say something more about how you became a patent barrister.
Wilson: Well, I did maths at Pembroke for a year, before realising I didn’t really understand it. I wasn’t terribly interested in it either. It was different from how it had been at school. And when I saw what the lawyers were doing, from looking at their exam papers, it looked an awful lot more interesting than anything the mathematicians were doing. So after a year of maths, I got permission to change to law. My father was a barrister though he didn’t practice and so the law was sort of in my blood I suppose. And it looked jolly interesting. So I studied law. And I suppose at some time, I was talking to Colin Budd and he suggested that with my maths and something of an interest in science and practical matters I ought to have a word with some patent barristers, notably his father. And my father would’ve said pretty much the same thing because he knew Pat Graham. So I went to see both of them. I’d always been interested in science. I remember reading New Scientist regularly and things like that. I’d got a fairly practical bent I suppose. And so it seemed like a good thing to do. And it was actually. There was a lot more patent work in those days than there is now. For me anyway. It was nearly all patent work when I started.
Facilitator: Were you doing extension cases?
Wilson: Extension cases, yes. Raph Lunzer used to do quite a lot of extension cases, particularly for Beecham’s the drug people, as they then were. The main thing was patent oppositions in the Patent Office. A huge number of patent oppositions. It was a jolly good jurisdiction. The Patent Office dealt with oppositions quite slowly, but in a way that enabled people to grapple with the issues quite well. Evidence went backwards and forwards on paper quite a lot, and they were very tolerant about introducing more evidence until everybody reckoned that they had said everything they could. There would then be a hearing. Sometimes with cross examination but not necessarily. The heavy ones would involve some cross examination but it was very rare for a hearing to last more than a day. Sometimes they lasted two or three days, but they’d nearly always get through a hearing in a day. They’d consider the issues very thoroughly and a pretty good decision would come out at the opposition stage.
When the 1977 Patents Act came in, it was thought that the Patent Office jurisdiction was so good that it shouldn’t be confined to an opposition period. As it had been before, you either had to oppose the thing before it was granted or you had a short opportunity to do so after the grant of the patent. You could then oppose it belatedly, as it was called, but you had to do it within 18 months. If you didn’t start the proceedings within the 18 months, that was it. The patent could then only be attacked in court. A lot of these oppositions, or belated oppositions, were filed because people thought it was a relatively cheap way of disposing of the issue and I think, generally speaking, people respected the decisions. So when the 1977 Patents Act came along it was thought that the thing to do was to extend the belated opposition period throughout the life of the patent. So you could now deal with things in the Patent Office at any time. The paradoxical result was that everybody thought, well, we don’t need to do it straightaway. We’ll wait. And they never in fact did it for lots of patents because they turned out not to matter. When people had a deadline of a year plus 18 months, even though they didn’t know whether the patent was going to be important or not, they thought it was worth opposing it just to get it out of the way.
But once the deadline went all this business went and then of course when the patent became important, litigation generally threatened and everything moved to the High Court anyway because there was an infringement action. So this whole Patent Office jurisdiction really fell away. I mean, it still exists and sometimes people do things in the Patent Office encouraging people to do it. It’s happening a bit more often now with new procedures. But it was a pity when all that went because there was a lot of business, particularly for juniors. But patent agents used to do quite a lot if they weren’t for anything important. Juniors used to do the ones which were slightly more important or where there were patent agents who weren’t confident of their advocacy skills. And then the really important ones had Silks involved, and some of them were very important.
Wilson: I knew Colin Budd at Cambridge because we were contemporaries at Pembroke and when he knew that I did maths and law, he suggested that I should go to see Bernard Budd, his father, who was now the Head of some Chambers that specialised in patent law and he thought that might be interesting. So I went to see Bernard Budd who said that they’d got a vacancy in the Chambers, quite a lot of vacancy in fact, because they’d been hit by a lot of incidents. Later on, Bert Martin, the clerk, explained to me what had happened. They’d had two senior QCs. There was Stanley Levy, who was a very well respected chemist who practised mainly in the Patent Office and did very heavy oppositions. He had died in the Patent Office one day. He was big earner. And at about the same time, R.G. Lloyd had retired because of the sudden withdrawal of a massive tax concession which he’d had advance notice of. So in order to preserve his tax position, he retired in a hurry. Of the two best earning juniors, a fellow called Peter Hayward went off to be an academic in Oxford and Max Mosley retired to divert himself fulltime with building racing cars. So according to Bert, this resulted in a drop in income in Chambers of about 90%. They were really seriously underemployed, or he was because his income was tied to the income of the barristers in those days, and he got a percentage. So his earnings dropped by 90%. Anyway–
Facilitator: And how was Pump Court? How many rooms were there?
Wilson: How many rooms? Well, in those days it was a typical set of barristers’ Chambers. It was one floor with three rooms on each side of the corridor. One had been divided into two. One was the clerks’ room and some of the rooms were shared. By that time, Bernard Budd was the Head of Chambers. He had been in the Indian Civil Service before he joined. There was Dick Terry, who had been in the Hong Kong government service. He was a chemist. There was Gilbert Jamieson. He had worked for ICI in their Patents Department. He’d been in Chambers before actually. He had been sacked for some kind of hanky-panky with the secretary. But Bernard Budd was more tolerant to having him back. Nice old man, Gilbert Jamieson. I shared a room with him for some years. He didn’t do an enormous amount of work, but he was a nice man. There was Raph Lunzer who had studied metallurgy and had worked in the Patent Office as an examiner. There was John Martyn with a ‘y’. He had been a ballroom dancing instructor at Fred Astaire’s Ballroom in Los Angeles and had also worked for an oil company, oil prospecting in South America, before he became a barrister. And the only person with no proper experience of life at all was me. There were a nice lot of people actually, all of them.
OTHER PATENT CHAMBERS (1970s)
Facilitator: And which other Chambers were doing patent work at that time?
Wilson: At that time, 3 Pump Court were by no means the top set. Especially since the loss of Stanley Levy and R.G. Lloyd. There was Francis Taylor Buildings in which Blanco White was the most prominent barrister. There was 6 Pump Court across the way from us. By that time, Falconer was in charge as the Head of Chambers there. Guy Aldous had retired shortly before. Probably for the same tax reasons as R.G. Lloyd. And there was Queen Elizabeth Buildings and with Pat Graham. Though he was shortly to be appointed to the Bench.
Actually, I went to see Pat Graham because he knew my father. He was Director of a company my father worked for. I went to see him and I dare say that if I’d not been persuaded by Bernard, and not had to say yes before he withdrew his offer, I might have joined Queen Elizabeth Buildings. I’d probably be a judge by now if I had.
Facilitator: Was there any reason why, after having been based in the Temple for many decades, patent work moved here and to Gray’s Inn?
Wilson: We moved because it was cheaper. Maybe the others did as well. Facilities seemed to be better at Gray’s Inn and Lincoln’s Inn and it was a bit cheaper when we moved. Middle Temple started putting its prices up very high. I remember coming up Middle Temple lane once and there was an empty skip outside of Middle Temple Hall which was completely full of empty champagne bottles. That was just about the time they were putting the rent up. Again.
PUPILS
Facilitator: And who were your pupils?
Wilson: Michael Hicks was one of my pupils. I think Graham Shipley was one of my pupils, although he may not have been. Christine Fellner probably was for a while.
Wilson: I can say lots about Raph, although probably not all it fit for publication. Raph was very clever and I liked him a lot actually. We got on well. We used to have a lot of discussions about recherché subjects, particularly Jewish subjects which he was pretty interested in. He taught me a lot about all of that and about history. He was really methodically interested in science. He also used to read History Today, which he used to leave lying around on his desk. That was interesting. He was quite wealthy. He had money from The Gestetner Company. Not a company one hears of much these days. His father had done some clever property development up Chancery Lane during the War. He’d bought an office block for £5000 or something. Probably people thought it didn’t have much future.
So he was pretty wealthy, Raph. And he had a rather good practice actually. Particularly for some specific tasks. Beecham’s particularly, were one of his good clients and Faithful, Owen & Fraser , a firm of solicitors who don’t exist anymore. It was a little niche practice in Holborn. They instructed him a lot. He used to do a lot of opposition work, some litigation and some of those extension cases. For some reason Whitford didn’t like him. I’ve never understood why but I think Raph was sometimes given to making rather laboured jokes which weren’t terribly funny. He wasn’t witty but he could tell a bad joke badly. And he somehow annoyed Whitford. So Whitford was quite nasty to him. Whitford could be nasty. He was nasty to Bernard Budd as well. I think that harmed Raph’s practice, but I’ve never quite understood why it happened.
Facilitator: And the Fleet Street Reports?
Wilson: Oh, the Fleet Street Reports, of course, yes. Well, that was Raph’s big thing. Sometime before I joined the Chambers, Raph had got more and more irritated by the fact that the RPCs took so long to be published. So he took it upon himself to contact the shorthand writers, get copies of recent judgments and then type them up. Originally I think, the earliest editions were probably on foolscap sheets. I’ve got a set upstairs. He published weekly and to emphasise the fact that this was a news thing, he called it Fleet Street Patent Law Reports. They were quite successful actually and the Patent Office must have liked what he did because they made him the editor of the RPCs (Report of Patent Cases) as well. So he was editing both the Fleet Street’s and the RPCs. He still was when I joined Chambers. While I was his pupil, there were one or two meetings with Michael Fysh who came around to see Raph. Raph was quite friendly with Michael Fysh, and I don’t think Raph had a great deal of time for anybody else in Chambers. He thought most of them were a bit thick. Either that or he wasn’t terribly interested in them. So rather than passing on the editorship of the Fleet Streets and the RPCs to somebody else in Chambers when he got too busy to do it, he passed it over to young Michael Fysh, which was a pity because it left Chambers and they were quite prestigious really. And of course they got more prestigious as time went on.
Facilitator: And Kerly was also in Chambers, I think Lloyd was doing Kerly on Trade marks?
Wilson: Well, Lloyd edited Kerly on Trade marks. Bert Martin had a story to tell about that. Bert Martin was our clerk. He didn’t like Lord Lloyd. I think he got on with him well enough when he was in Chambers but Lord Lloyd had left Chambers in a way that caused Bert Martin a great deal of distress. Anyway, Bert Martin didn’t like Lord Lloyd very much and he said that Lord Lloyd had been sacked from editing Kerly because he hadn’t done a very good job on the previous edition, and the book then went out of Chambers. That may be true, but I don’t know.
Facilitator: I think it (Kerly) went to Blanco White, maybe?
Wilson: Did it go to Blanco White? I thought it went across the road to 6 Pump Court. I can’t remember. Anyway, the reason Bert Martin didn’t like Lord Lloyd after he left, R.G. Lloyd as he was, was because R. G. Lloyd had written to all his solicitor clients saying, “I’m about to retire but don’t worry. My cases can continue to be handled by my nephew who is in Chambers somewhere else.” So all his caseload was taken out of Chambers and went off to his nephew which was pretty bad luck for Bert Martin because he would have liked to have distributed the work amongst Chambers, hardly surprisingly.
Facilitator: My last question concerns the move of Chambers from 3 Pump Court. Had you already become Head of Chambers by the time you moved from 3 Pump Court?
Wilson: Well, Raph was Head of Chambers until he went off to the Munich Patent Office.
Facilitator: Do you know why he left?
Wilson: Why did he go to the Patent office? I think Raph’s practice was beginning to collapse. I don’t know why. But he didn’t get Silk and I did and I think that was probably pretty unpleasant for him. So he went off and became a judge at the Munich Patent Office. And also it was good job being a judge in the Patent Office. So it wasn’t a demotion in any sense.
Facilitator: I think it was very well paid.
Wilson: He was well paid. Decent pension, which unfortunately he didn’t collect, or not for very long anyway, poor chap. And I think perhaps he was just bored with practice at the Bar.
Facilitator: And you became Head of Chambers?
Wilson: Yes. There weren’t many of us to be head of, but yes I did.
Facilitator: Were you still in Pump Court?
Wilson: Yes, I was Head of Chambers in Pump Court for a while. Then we moved up to 19 Old Buildings, which was a nice place to be. Much smaller. Then three people died in pretty quick succession, which left us with very few people. Graham Shipley, Brian Reid, and Christine Fellner all died within a year of each other, which gutted us. There were just three or four of us left. It just wasn’t enough to justify the clerking and the accommodation and there was no way any pupil could be persuaded to join us because we were such a tiny rump of people. Fortunately, Hogarth Chambers were generous enough to take us all on, including the clerks.
Facilitator: And what was the origin of these Chambers?
Wilson: These Chambers were themselves merged from a Chancery set and a Patent set. Rather more of a patent set. I think Amédée Turner and Whitford, I think, were in these Chambers at one time. Christopher Morcom still is, of course. Anyway, this was already a merged set of two sets at least and so we joined them and were the third set to join in.
Wilson: British Leyland was a very strange case. Going back a stage, while I was a pupil the whole subject of industrial copyright was only just developing. Nobody thought it would be quite as extensive as it turned out to be. But it became clearer and clearer that copyright in ordinary working drawings of even very mundane objects could be enforced against the objects themselves. It was said that the object was a three dimensional reproduction of the drawing. The Copyright Act also said, for historical reasons, that any infringing object sold by the defendant is deemed to have been the property of the copyright owner. So the copyright owner didn’t just get loss of profits by way of damages when the defendant sold an infringing article, the defendant could also say, “That was my property. You sold it for £100. You owe me that £100.” And that was the law. So if you were caught infringing by selling concrete objects indirectly made from somebody’s potty little manufacturing drawings, you’d have to pay the full sale price of the goods.
So as this branch of the law developed, British Leyland had the bright idea that it could be used against people who made spare parts for their cars. British Leyland, like most car manufacturers in that time, perhaps still, sold their cars at not very high profit margins and they made a lot of profit on spare parts for them. So it was extremely irritating for them to see other people popping up selling spare parts much cheaper. And this had been going on for years, obviously. Then they decided that the thing to do was to make use of industrial copyright against them. So they sued lots of manufacturers of silencer systems. They started on silencer systems but they were going to like move on to everything else as well. They thought they’d make an example of silencer systems manufacturers first because so many silencer systems were sold. And one by one the silencer system manufacturers caved in. British Leyland said, “Well, we won’t enforce the conversion damages aspect. All we really want is just a reasonable royalty and you take a license and we’ll be happy”, which is what nearly all the silencer manufacturers did.
The Armstrong Patents Company had been, I suppose, extremely badly advised by me and Bernard Budd that somehow there must be some defence to this action because it’s just absurd that British Leyland could monopolise their parts in that way using silly little drawings like the ones they’d got. But I think everybody else thought that was completely ridiculous, which is why they all caved in. We also had some European law defences which, with the benefit of hindsight, we can now see they would probably have failed. But at the time they seemed to have a certain amount of mileage. Anyway, the matter came to court and there was a massive argument about whether we had copied or not because nobody quite knew what copying meant in those days. We said that there were some small differences between theirs and ours, but actually it was pretty clear that we had copied in any reasonable sense. The judge said we were pirates though the Court of Appeal said: “It’s not quite as simple as that. You’re not pirates. You’re just ordinary businessmen doing a businessman’s job but unfortunately for you, you’re also infringing copyright.” Then it went to the House of Lords and the House of Lords did exactly what Bernard and I had said they might do in the first place, which was to invent a defence. Which was kind of them.
There was one rather interesting point to it. Some of the judges in the House of Lords were not entirely sympathetic to our point of view. They couldn’t really see why we had to copy British Leyland’s silencers. They thought, if you wanted a copy all you needed to do was put a British Leyland car up on a ramp, look at the bottom of the car and design your own silencer system instead of taking a British Leyland one and passing it through a copying machine and copying it. But fortunately, we’d thought of that point at the trial, and we’d got into the evidence an admission by a British Leyland designer that it would be extremely foolish to work from the bottom of a car for quite an interesting reason. Along the bottom of a car all sorts of pipes go backwards and forwards, there are wiring looms and above all there’s a petrol pipe that goes from the petrol tank in the back to the carburettor in the front. And it’s jolly important to ensure that the silencer system follows a route which is a good distance from the petrol feed pipe because the heat of the silencer system could at the very least vaporise the petrol in the petrol supply pipe and stop the petrol from reaching the carburettor. So you have to be jolly careful to ensure that the silencer system is well away from the petrol pipe. If you put a car up on a ramp and look underneath it you can easily design a pipe which would miss the petrol pipe but what you don’t know is whether next week British Leyland decide to change the route of the petrol pipe and have it going some way which is still clear of their silencer system but might nevertheless be pretty close to the silencer system you’ve made. So if you did work from the bottom of the car, you would run the risk of cars blowing up later if the petrol pipe route has been changed by British Leyland. The only safe thing to do is to make sure you copy the run of the British Leyland pipe, because then you can be sure it won’t be anywhere near the petrol pipe. Anyway, that was in the evidence and we had our thumb in that particular part of the transcript throughout the hearing in the House of Lords. Somebody at last asked the question, why did you have to copy? Why didn’t you just design your own? We pulled this bit of evidence out and he seemed pretty convinced by that. I was rather pleased with that little detail because it had been sitting there in the evidence for quite some time waiting to be exploited. It really did make a difference.
Facilitator: And did you take Silk after that case?
Wilson: Yes, we had a leader on that one, but he was brought into deal with the European questions. So we did have a QC, but I can’t remember who it was now. But when we got into the House of Lords, the House of Lords said we don’t want to hear the European questions yet we just want to deal with copyright, and if we have to, then we’ll listen to the European questions. So I opened on the copyright law point.
The hearing went on for a long time. It was the longest hearing in the House of Lords there’d ever been. Although only a few months or a year later it was succeeded by another one which took even longer. We went through an awful lot of material with them and went backwards and forwards with them over the law of copyright. I think we came within an ace of persuading them that the whole industrial copyright thing was nonsense, that copyright didn’t cover the engineering details that went into a drawing. All it covered was the sort of quasi-artistic work of drawing something up. So if you photocopy or trace from an industrial drawing, then obviously that’s infringement. But if you make the object depicted, you aren’t taking anything that copyright was ever intended to protect. That was our thesis and I think we came close to persuading them of that. But they decided they were bound by a previous decision called LB Plastics v Swish. Which was a pity because they could’ve overruled that and I think it would’ve made more sense to the law.
Anyway, that’s all water under the bridge. Besides it was a jolly interesting case. We were very pleased to win that. It was a huge triumph. I’d never have got Silk without it.
Facilitator: And how did your practice change after taking Silk?
Wilson: The answer to that is that I got a lot less work and got paid an awful lot more for doing it.
Facilitator: Did they still have the rule that you had to take a junior?
Wilson: I think that had already gone by the time I took Silk. We didn’t have to have a junior, though it was still the norm to have a junior and that would usually be Michael or Graham in my Chambers.
Facilitator: American Cyanamid was another significant case. In retrospect what are your feelings about that case?
Wilson: It had a baleful effect on the development of the law. In fact, when it first came out I wrote an article for the New Law Journal saying that it was silly. One of the few articles I’ve ever written. I think Hugh Laddie was absolutely right in Stage Five or something when he said that in order to judge the balance of convenience you may need to consider the merits. I think that there are cases where the court can be pretty certain what the result is going to be at a trial and in such cases there is no reason why they shouldn’t give some weight to their certainty. There are other cases where it’s completely up in the air, and in those cases you can’t give much weight to your certainty. But given that the basic principle is that you’re trying to take the course which minimises the risk of injustice, then the risk of injustice is twofold. There’s the risk of injustice to a claimant if he’s right but he doesn’t get his injunction when he should’ve done. Then there’s the risk of injustice to a defendant if he’s right but he’s injuncted wrongly. So you’ve got to balance up those risks and decide which one is the bigger, and grant or refuse an injunction accordingly. And if in balancing up those risks you’re not allowed to consider the actual chances of success, then you’re not truly balancing up the risks. If a defendant has only one chance in a hundred of beating off the claimant’s claim that reduces the risk of injustice to the defendant by a factor of a hundred. If on the other hand it’s pretty obvious that the defendant is going to win but not absolutely certain, then the risk of injustice to the defendant if he’s injuncted is far, far greater. American Cyanamid said you must ignore all that. You can’t take account of the merits. All you can look at is the so-called balance of convenience. Then you spend an awful lot of time arguing about considerations which are actually pretty imponderable anyway.
Facilitator: And what was the effect of that case in terms of practice?
Wilson: The effect of it was pretty baleful because before American Cyanamid the evidence in interlocutory injunctions cases concentrated on the merits of the case, and a few paragraphs at the end would deal with some balance of convenience points giving them, to my mind, appropriate weight. The merits were explored in some detail. So interlocutory injunction applications, it’s fair to say, probably cost a bit more because the evidence on the merits needed to be fairly detailed. Though these days the evidence is far more detailed on the balance of convenience. But because the merits were explored in some detail, the judgment the court gave also explored the merits in considerable detail and as often as not resolved the case because the parties respected what the judge said.
If Whitford looked at a couple of packets of cornflakes and, having considered all the evidence put in front of him, said that one was not confusingly similar to the other, in all probability both parties would respect that and the matter would go no further. That saved everybody a lot of money.
These days the balance of convenience is invoked, nobody looks at the merits, an injunction may or may not be granted and then there’s a full scale trial, which is far, far more expensive even than the old interlocutory injunction application. So I think the interlocutory injunction procedures in the old days were actually good for everybody because you got a quick, efficient and pretty convincing decision on the merits which made trials unnecessary, except in cases where for one reason or another the decision wasn’t entirely convincing.
So I think that had a pretty unfortunate effect on the law because a lot of the law was developed in interlocutory injunction cases. And since there were so many of them, a lot more law got developed a lot more quickly than having to wait for a massive state trial costing millions to decide these issues.
