Breaking News: Bomb & Gouge: Golf Digest

The Acushnet/Callaway legal battle over multilayer golf ball technology that dates back to 2006 just got a little more interesting.

On Nov. 10, 2008, Callaway Golf was granted its request for a permanent injunction to stop sales of Acushnet’s Titleist Pro V1 family of golf balls, effective no later than January 1, 2009. The Court also rejected Acushnet’s request to overturn the jury’s December 2007 verdict which found that Callaway Golf’s golf ball patents were valid and infringed by Acushnet’s Titleist Pro V1 family of golf balls.

That has now changed.

According to Acushnet and news reports, a federal appeals court Friday threw out the jury verdict and ordered a new trial on the patent infringement case brought by Callaway and rescinded the injunction.

Callaway had claimed that the technology used in some of Titleist's golf balls, including the Pro V1 and Pro V1x, infringed its patents. A point Titleist has long disputed.

On January 17, 2006, Acushnet, of Titleist is a component, asked the U.S. Patent and Trademark Office to re-examine each of the four asserted patents. “We firmly believe in respecting the valid intellectual property of everyone competing in the golf industry,” Acushnet said in a prepared statement at the time. “However, we have a very strong belief that these patents are invalid.”

The intellectual property in question, referred to in the complaint as "the Sullivan patents," focuses primarily on the construction of a multilayer ball with a solid core and a polyurethane cover. Acushnet says it received its first patent covering this technology on March 3, 1999 while the oldest of the four Callaway patents at issue was not filed until December 12, 1999 and issued on March 15, 2001. The other three patents were filed in 2001. The Callaway patents were acquired in 2003 when the company purchased Top-Flite Golf from bankruptcy. The Pro V1 was introduced at the Invensys Classic on October 12, 2000.

A Dow Jones Newswire story said, "The appeals court said there were genuine issues of fact that needed to be reconsidered by the trial judge in the case. The Federal Circuit also said the jury's verdicts on the Callaway patents were "irreconcilably inconsistent" because jurors found some patents invalid but concluded that other similar patents were valid."

Joe Nauman, executive vice president -- corporate and legal, Acushnet Company, said, "The appeals court ruling is very good news and supports our position that the patents in question are invalid. In addition, we continue to receive favorable rulings from the Patent & Trademark Office that all of these patents are invalid. Today’s appeals court ruling and the continuing

favorable Patent Office rulings reinforce our confidence that we will ultimately prevail in this matter."

Callaway said it had just received the opinion and were in the process of reviewing it.

Stay tuned.

-- E. Michael Johnson

Posted by Sam Weinman

It’s not every week that a former major champion and top 10 player in the world ends one equipment endorsement contract and then signs a new equipment endorsement contract mid-season, but for the second time in the last 30 months, Callaway Golf is the beneficiary of such good fortune.
The company announced Wednesday evening that it has reached an endorsement deal with Ernie Els, a two-time U.S. Open Champion, 2002 British Open champion and the No. 6-ranked player in the world. On Monday, Acushnet Golf announced that Els had been released from his five-year endorsement contract to use Titleist golf clubs and balls and wear FootJoy shoes and gloves. That deal was set to expire at the end of this year. Els’ departure from Titleist and FootJoy marks the second time an Acushnet player left the company mid-season to join Callaway’s team. In September 2004, Phil Mickelson became a Callaway endorsee, weeks after ending a deal with Titleist and FootJoy.
Terms of the Els deal were not disclosed but sources indicate the contract is long term and multi-year. The deal will include ball, clubs, bag and the side and back of the hat. Els currently also has a major endorsement contract with SAP, which has a position on the front of his cap.
Els is playing on the European Tour’s Johnnie Walker Classic in Thailand this week, and he is expected to play the new Callaway FT-5 driver and the Callaway HX Tour 56 golf ball.
It is a strategic boon for Callaway, which has been in the market for a significant player on the international stage for several years. Els is one of the few players to routinely play on several continents, playing frequently on an annual basis in his home country of South Africa, as well as in Asia and in Europe. Els has won 43 times worldwide and 15 times on the PGA Tour. His last victory came in the 2006 South African Open, but his last PGA Tour victory came in 2004.
Nick Raffaele, Callaway’s vice president of sports marketing, said the deal happened very quickly after Acushnet had released Els from his contract. He said that Els specifically had expressed interest in the Callaway golf ball, although Raffaele admitted he was also surprised Els had put the FT-5 driver in the bag so quickly.
“I would say he’s probably only used the club once and that was in the pro-am this week,” said Raffaele, who indicated that because of the sudden nature of the deal, Els will be given time to transition to a full bag of Callaway clubs, including an Odyssey putter. Raffaele said Els will play products that are in the Callaway line, indicating that Els seems to be leaning toward the new X-Forged irons.
It is expected that Els’ next U.S. event will be the Arnold Palmer Invitational presented by MasterCard. Els won the event, played at Bay Hill Club & Lodge, in 1998.