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New twist in Acushnet/Callaway battle

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court Friday threw out the jury verdict and ordered a new trial on the patent infringement case brought by Callaway and rescinded the injunction.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

Of drivers and major winners

BOMB: Interesting debate at my club the other day. Two guys were debating the merits of the TaylorMade R9 and Nike SQ Dymo STR8-FIT drivers. By the way each was entrenched in their respective positions you would have thought they were sales reps for the companies. Although the conversation seemed more like two guys trying to show each other how much they knew about equipment, the guy favoring Nike said one thing that caught my ear.

“OK, so what was the last major won with a TaylorMade driver?”

Hmmmmmmm.

With the Masters coming up and with all the hype surrounding the Golfsmith/Sergio Garcia driver promotion, it seemed like a question worth answering. So after stretching the memory banks I came up with Vijay Singh in the PGA. In 2004. That said, 2004 was a very good year for TaylorMade as it had driver wins in three of the four majors.

Over the last five years the driver-wins-in-majors scorecard reveals a fairly spread-out field. Nike leads the way with seven (thank you, Mr. Woods for six of them), followed by Callaway, TaylorMade and … wait for it … Wilson (thank you, Mr., Harrington). Titleist grabbed a pair, and Cobra and Ping each had one.

Now, should Paddy win the Masters, Wilson would jump into the No. 2 spot all by themselves. Which really just proves that using major wins to determine the quality of a driver is an almost useless conversation. Those two guys would have been better off jumping on a launch monitor than on each other.

GOUGE: I know your club. I doubt a launch monitor would have solved the debate over R9 vs. Dymo STR8-FIT. Just take them both out to No. 7 and let them have a wrench-off to see which driver lets them hit the high hook around the corner of the dogleg. I bet it’s a good bar challenge, too.

Determining the best driver based on tour use is relatively ludicrous, of course. And major wins is somewhat laughable, too. But it all begs the question, of course. How does one determine the best driver?

Here’s a three-step process: 1. Find three heads you love to look at from address. 2. Take all three and after a general fitting for loft and shaft flex by a qualified expert, make 4-6 swings with each on a launch monitor, rotating to a different driver after every two hits. 3. If you see a difference on AVERAGE hits (not just your best hits), take a demo model out to the course to how it works in someplace other than Fantasyland.

Don’t have that kind of time, you say? Would rather just order something online? Don’t know where to get fit? Please. Here are ten websites to get you started on the fitting process for your new driver.

Golfsmith.com

EdwinWattsGolf.com

Golftec.com

Callawaygolf.com

Clevelandgolf.com

Cobragolf.com

Nike.com

Ping.com

Taylormadegolf.com

Fittingworks.com

Go. Now. Don’t come back until you’ve finished your assignment.

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Hot List: All precincts reporting

BOMB: For those of you who thought we may have just decided to stay at CordeValle Resort, well, we're not that lucky.

Not that the thought of spending more time in such an idyllic location wasn't tempting. But the reward for a two-week stay out west at the Hot List Summit isn't a vacation. It's the opportunity to have enough time to do a load of laundry, jump-start the battery on your car (yes, mine croaked after not being started for nearly two weeks) and head into the office where the five Hot List judges have been holed up since last Monday deliberating the merits of each product under consideration and assigning each a score in
each of the four categories. In short, with four criteria and more than 250 products to consider, that's more than 1,000 individual debates. By the way, pardsy, I just tallied up the number of cells used on your master Excel spreadsheet -- about 5,600 used. And that grid of data from the Robot Testing we had done? Another 1,200 data points.

So what made the list? You don't really think I'm going to tell you do you? You’ll have to wait for the February 2009 issue along with the rest of the 1.6 million subscribers of Golf Digest. But I can tell you we have spent much of the past year and almost all of the last month diligently researching any tidbit of information that would aid us in our deliberations. You see, the deal about the Hot List is that on the surface what we're trying to do (i.e., evaluate the golf equipment universe) is borderline impossible. And it would be just that if we went about it randomly, with no regard to a detailed process. But we have a process and we stick by that process. What you will see in the magazine and on our website is the result of that process. The mission is to make your search for new equipment simpler. You take it from there.

GOUGE: Yes, I am a little giddy about Excel spreadsheets when it comes to the Hot List. And no, we're probably not going to tell you today what's on the list. But here are some things to consider in anticipation of the list (take a deep breath, it's probably more than you want to know, but the I am the man of 6,000 spreadsheet cells):

1. The grading process: Changed from last year, the new system will respond somewhat to the wishes that we devote more of our evaluation to how the clubs work. 40 percent of a product's score will be in the criterion of Performance (what happens to the ball when you hit it) and 20 percent of the score will be set on the new criterion of Look/Sound/Feel (or the experience of holding and using the club and how closely it resonates with our interpretation of what a golf club should be). So that's 60 percent of the score devoted to the utility of the club. 30 percent is set aside for the criterion of Innovation, which is our evaluation of how the designers advanced the ball in terms of technology, fitting and/or materials, as well as how efficiently a company makes their technology understood. 10 percent, our smallest element, is set aside in Demand. Now, Demand traditionally gets a bad rap in our Hot List evaluations, but we feel it is a way of better understanding how more players feel about a product (sales and consumer satisfaction data are one indication for older products) and how much excitement there is surrounding a new product. That excitement factor has nothing to do with advertising, but rather it's a determination based on our extensive interviews and discussions with a team of veteran retailers. And again, it's only 10 percent. And small companies aren't unduly punished. They don't get a 1 out of 10, for example. In truth, if they have an office and a phone number and a website, they're starting out a lot closer to 5 than they are 1, and any other positives about a particular product, its internet buzz, its tour use, its designer or any other combination of factors, pushes it much closer (and beyond) a passing grade. In other news, we will continue the designations of Gold and Silver, and our grading system for the four Hot List criteria will move to a 5-star system, and away from the somewhat confusing Red/Orange/Yellow + and ++ format of years past.

2. About 1 in four of the products we considered for the Hot List actually made the final list. So if in the past you had a tendency to dismiss products that "only" earned a Silver designation, think again. The Hot List in total stands as the cream of the equipment crop.

3. If you think it's easy to pick our list, consider that among all that Excel spread sheet data is only the smallest of differences detected by the fine, exhaustive work done by the team at Golf Laboratories. By my calculations, the "best" drivers tended to lose about one-and-a-half percent of ballspeed for our four off-center hits (1/2 inch above the center of the face, 1/2 inch below the center of the face, 3/4 inch toward the heel and 3/4 inch toward the toe) and the "worst" drivers lost about two-and-a-half percent of ballspeed on those off-center hits. In real terms, that means the worst drivers on a very average 90 mile-per-hour swing were losing about 5 yards on a mis-hit, and the best were only losing about 3.5 yards on a mishit. Short answer for those not majoring in mechanical engineering or quantum physics: Drivers work, and if you haven't upgraded in a couple years, you're probably the same idiot driving the '84 Escort at 40 miles per hour in front of me this morning on the Merritt Parkway. Troll.

4. So if they're all so close in performance, how do you pick any clubs? Well, of course, it's a lot more than what happens with a robot because robots don't play golf. But our robot does give us some very useful baseline data to compare relative launch angles and spin rates, as we did with last year's Hot List. We really want to understand what players think about a particular design, and our belief is the better a design approaches the ideals of "revolutionary" and "flawlessly efficient," the better shot it has of earning our highest honors.

5. The only other revelation I'll pass on is the huge degree to which many of our players were surprised at some new equipment discovery, and not just the hot new products. Most notable is how some of our elite players with significant clubhead speed came to new understandings or theories about the role of the shaft. Specifically, many were reconsidering the flex of the shaft, going to an R when for years they played an S. But that's exactly what you should expect from the Hot List: The unexpected.

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