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For a moment last year, Justice Hugh Laddie transformed thehigh-toned aura of his small courtroom in London’s Royal Court of Justice intothe tumult of a pro soccer game. While testimony was presented concerning theArsenal Football Club’s distinctive crimson scarf in a trademark case, JusticeLaddie took matters into his own hands. He snatched the scarf and waved it overhis head, imitating the antics of soccer fans after a dazzling goal or crucialtriumph by their team. Laddie’s gesture may have startled those inattendance that day, but his ruling in Arsenal Football Club v. Matthew Reedjolted England’s powerful soccer and IP establishments. Laddie rejectedArsenal’s claim that souvenir knockoffs violated its registered trademark. The judge, a former IP attorney, ruled that since there wasno indication that the knockoffs were sold as official Arsenal merchandise,they were decorative and not infringing. The soccer team has appealed thedecision to the European Court of Justice. It wasn’t the first time that Laddie, 56, one of themost colorful and provocative judges on the European IP scene, has shaken theIP establishment or shaped IP law. In November 2000, Laddie took a shot at Big Pharma in LillyIcos LLC v. Pfizer. He found that Pfizer’s U.K. patent on the use of a keyingredient in the popular drug Viagra was invalid because it was obvious. Theruling, which was upheld by the English Court of Appeal, has created a genericmarket for Viagra in the United Kingdom. Laddie’s most publicized ruling came a year later, in ZinoDavidoff SA v. A&G Imports Ltd., when he found that trademarked goodsthat are bought outside the European Economic area can be imported back intoEurope without the express permission of the trademark owner. The practice,called parallel importing, allows companies to buy and sell normallyhigh-priced goods, like Davidoff colognes, at much lower prices. Laddie heldthat the trademark holder’s consent to parallel imports into the EuropeanEconomic area could be assumed, because the owners didn’t impose specificrestrictions in import contracts. On appeal, the European Court of Justice asserted that atrademark owner’s consent must be “unequivocally demonstrated.” The reversal didn’t faze Laddie, who isn’t ashamed to engagein what U.S. lawyers call “judicial activism.” “I was critical of legislation that put in a rule thatI thought was crazy. The ECJ was right on the law to say that my way didn’twork,” Laddie said recently, in an interview in his chambers. “I’m apassionate believer in competition and free trade,” Laddie added, lookingup from behind the stacks of paper and files that crowd his desk. “Ibelieve in the free flow of goods, even if they’re bearing a trademark.” The ECJ will be looking at two other Laddie rulings soon. In Glaxo Wellcome v. Dowelhurst Laddie again addressed parallelimportation — this time within the European Community. Traditionally, in Europe,parallel importers buy pharmaceuticals and repackage and relabel them for salewithin Europe. Glaxo objected to this process. Laddie ruled that parallel importationwithin the European Community should only be stopped if the quality of thepharmaceuticals is at risk. For instance, in the event that the drugs wereimpaired, the marks would be damaged and would no longer serve as goodindicators of origin and quality. The ECJ will also review Laddie’s ruling in BritishHorseracing Board v. William Hill, which involved the interpretation of theCopyright and Rights in Databases Regulations, a law that confers legalprotection to databases. In this case, Laddie came to the defense of theproperty owner. Laddie found that if a database owner could show substantialinvestment in obtaining the contents of a database, he or she couldindefinitely restrain any unauthorized reuse of a substantial part of thedatabase. The rulings in these cases will play a vital part in thedevelopment of European IP law, either by creating new law or by clarifyingestablished principles. Laddie, along with Robin Jacob and Nicolas Pomfrey, sits onthe Patent Court section of the U.K.’s High Court, which is akin to the United States’district court system. Laddie took his seat on the bench in 1994, Jacob in1993, and Pomfrey in 1997. In its previous incarnation the Patent Court was headed byjudges who weren’t IP specialists. Cases moved slowly through the system, andthe IP bar tended to forum-shop throughout Europe for a faster alternative. Laddie wasn’t interested in being a potted plant. He becamea judge in order to “reinvigorate [the] Patent Court,” says BillMoodie, the head of the IP/IT department at London’s Herbert Smith, who had alot of dealings with Laddie in the late 1970s and the 1980s. When Laddie became the senior judge of the Patents Court inOctober 1997, he spearheaded a series of reforms designed to streamline thecourt’s process, including cutting down on the amount of documentary discoveryin cases and instituting case management conferences. Many IP practitioners view Laddie and Jacob as a pair unitedby their combination of intellectual and oratorical skills. “[They] standout in their generation of attorneys,” says Mark Stephen, a partner atLondon-based Finer Stephens Innocent who specializes in IP and media law. Of the two, Laddie is more likely to break new ground.Stuart Lockyear, a partner at Davenport & Lyons, points out that it is Laddiewho generally “takes delight in giving decisions that come from adifferent angle.” Jacob and Laddie met in 1969, when both were practicing at 8New Square, a “chambers,” or “set,” of lawyers thatspecializes in IP law. Unlike lawyers in a traditional firm, lawyers in a setshare expenses, but not earnings, so they can be on opposite sides of the samecase. “[The set] was a very liberal, wide-ranginggroup,” recalls Laddie, who initially studied medicine at Cambridge butswitched to law when he realized he “would have killed people” if heever became a doctor. “The set considered its job to always questionthings,” he said. “We were always inquiring and never taking thingsfor granted.” That rationale helped put Laddie on the path to one of hismost well-known cases as a private practitioner, Anton Piller KG v.Manufacturing Processes Ltd., which in 1976 led England’s Court of Appealto create “Anton Piller,” or civil search, orders. Prior to the ruling, the only searches allowed in Britainwere those done pursuant to police warrants. Piller opened the civil court’sdoor to parties seeking orders allowing the search of records, products andhard disks. In Piller, Laddie’s clients believed that thedefendant had been running a video piracy business from his home. “Theplaintiffs asked me if there was any process we could use to get inside thehouse. I said, ‘Let’s see if we can make one,’” recalled Laddie. “ Pillerwas actually the fourth case in which I had gotten such an order. The trialcourt in Piller was worried, so it sent the case to the Court of Appealand we got it upheld.” In 1986, Laddie was named Queens Counsel, an honor bestowedon only about 10 percent of the nation’s 7,000 barristers. The designation putsprospective clients on notice that a barrister is essentially the cream of thecrop. Laddie’s workload increased accordingly. But his love of the job didn’tdiminish. “As an advocate, I tended to be more flamboyant andpassionate than most,” he said. “I was noisier than I should’ve been.I couldn’t imagine work that could give you more intellectual pleasure, and –let’s face it — if you win, the roar of approval.” After a few years, however, Laddie was burned out. “Iwas tired. I worked ridiculous hours, and on holidays. I always had work withme,” recalls Laddie, who laments that his focus on work caused him to beless involved in the upbringing of his three children, all now in their20s. Laddie was relieved in 1994, when he received an invitationto a judgeship on the High Court. At the time he remarked that he planned to”be quiet and listen” as a judge. Others knew he was bound to breakthat promise. “The expectation upon Laddie’s taking the bench [was]that he would have huge trouble forgetting he’s no longer an advocate,”maintains Tony Willoughby of London’s Willoughby & Partners, a leadinglight of the U.K. IP bar, who has known Laddie since the mid�’70s. Henotes that it didn’t take long before Laddie gained a reputation for being tooquick to judge the veracity of witnesses, coming down hard when he concludesthat a witness is lying. Laddie showed his harsh side last fall in Allason v.Random House U.K. Ltd., a case brought by author Roland Allason, whoalleged that he had not been paid for ghostwriting the book “The EnigmaSpy.” In dismissing Allason’s claim, Laddie called him a “profoundlydishonest man.” But he didn’t stop there, adding, “I have come to theclearest possible conclusion that Mr. Allason has told me untruth after untruthin the pursuit of his claim.” Laddie took the rare step of sending his trial notes to theDirector of Public Prosecutions, the U.K. equivalent of a district attorney, sothat the office could consider taking action against Allason. So far no chargeshave been brought. Brian Cordery, a solicitor at the London office of Bristows,doesn’t think Laddie jumps to conclusions. “He has a careful, balancedview of witnesses, and as he becomes more senior he is becoming more judiciousat listening to both sides,” he says. “That said, Laddie knows acrook when he sees one.” Others say Laddie is too much like judges on the Continent,who engage in fact-finding. “Laddie has taken a more Continental approach,taking control of hearings. And he may be too proactive in the view ofsome,” Moodie maintains. “There is a concern that Laddie doesn’talways leave it to the parties.” Laddie makes it clear that he thinks cross-examination isoverrated. “The idea that you have to have cross-examination and discoveryis steeped in the English legal training, and people come to feel that nojustice can be done without discovery and cross,” he says. “In mostcases where you have cross, you can tell who is going to win before the witnesseven goes into the witness stand.” One denizen of the London IP bar who declined to be namednotes that “the losing client and their attorney may feel that they’vebeen given a beating and that Laddie’s mind was made up before they walked intocourt.” Notwithstanding Laddie’s occasionally abrasive approach andaggressive rulings, the IP bar sees him as an asset to the bench, someone withthe background to bring the Patent Court into the 21st century. But he will always have his detractors. “Some feel thatLaddie has taken a personal view on how he thinks the law should be rather thanjust applying the law,” Moodie says. “Davidoff is an example of this. Many see the ECJ’sopinion as expressing black-letter law, whether or not it was desirableeconomically or politically. Laddie thought consumers should have a fair runand he came up with a ruling that did that.” Laddie, for his part, prides himself on his independent andcontentious nature. “At the end of the day, it’s important to not let thelaw become a mindless body of rules,” he says. “You have to try toensure that justice is done and that what is sought to be accomplished by thelaw actually is.” Although Laddie relishes the chance to establish precedent,he doesn’t go looking for the opportunity. “There is a misconception that judges write opinions tograb the limelight,” he says. “We don’t pick the cases that come ourway.” But he does make the most of them.

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