EquipmentApril 4, 2016

Golf Digest article could hold key to saving the club fitting industry

Lawsuit seen as threat to the widespread, low-cost use of launch monitors
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Golf Digest may have just saved the clubfitting business as we know it.

OK, we’re possibly overstating the case for our own benefit, but a Golf Digest story is a key exhibit in an ongoing patent lawsuit that has industry insiders, clubfitters and golf retail giants on edge.

At first glance, the two patent infringement lawsuits filed last July against two of the leading golf retail and clubfitting brands in the country seem to suggest that anybody doing modern clubfitting might be in trouble, and the result could monumentally impact how easy and affordable it might be to go for a clubfitting on a launch monitor.

The lawsuits were filed by Max Out Golf, which is a clubfitting company established by Mitch Voges, the 1991 U.S. Amateur champion. The lawsuits focus on how Cool Clubs and Worldwide Golf conduct their clubfitting operations and how they might violate Max Out’s clubfitting patents, which date to late 2003. Cool Clubs has 16 clubfitting facilities in the U.S. and abroad, while Worldwide Golf Shops is the parent company behind over 80 retail stores under the names Roger Dunn Golf Shops, Edwin Watts Golf, Golfers Warehouse, The Golf Mart, Uinta Golf and Van’s Golf.

A key exhibit in the defense of the lawsuit is the effort to have the patents invalidated by the U.S. Patent and Trademark Office. The defense contends in documents filed last week that knowledge of club fitting with launch monitors existed prior to the patents in question. That’s where the Golf Digest article from 2001 on clubfitting and launch monitors comes in. The date is important because it precedes the Max Out patents by nearly two years.

In the article, “How I Got Launched,” Golf Digest’s former equipment editor Ed Weathers described a clubfitting with a launch monitor and detailed how a GolfAchiever launch monitor worked.

The Golf Digest story features images from the computer screen used with a GolfAchiever launch monitor “a laser-based analyzer used by some 300 clubfitters and by such top teaching pros as Chuck Cook and Jim Suttie.”

“My fitting was state-of-the-art, its most memorable element a device called a launch monitor,” the story reads “It’s a pricey device that’s just now becoming available to golfers outside the elite ranks. But someday you too will be fitted with a launch monitor. Let me tell you: If you want to hit it longer and straighter, it is the only way to go.

“With the launch monitor, [the fitter] could tell instantly whether I had achieved the high-launch, low-spin, boring ball flight that would maximize my distance off the tee.”

The case is being heard in federal court in the Eastern District of Texas, a court that has been traditionally friendly to patent plaintiffs. The court is located in Marshall, Texas, or what Texas Monthly has suggested may be “the unlikely patent litigation capital of America,” “the intellectual property equivalent of a speed trap” and “the worst thing that ever happened to intellectual property law.” It hears about a quarter of all patent lawsuits. [http://www.texasmonthly.com/politics/patently-unfair/]

Lawyers for the defense filed a request for a stay in the case last week, as well, suggesting that “it would be a waste of time, money, and resources to litigate this case until the pending Patent Office challenges are resolved.” A USPTO preliminary reexamination of the patents rejected their claims last month, and lawyers representing the defense filed a more detailed request for a review on Tuesday, which includes the article from Golf Digest.

The lawsuit has drawn the attention of many of the biggest equipment and retail companies in golf because many are concerned that if the patents are upheld it would either extremely change the cost of fitting or potentially severely impact its availability. It is telling that Worldwide Golf and Cool Clubs are joined on the Inter Partes Review petition by GolfTEC, which has 200 nearly instruction centers worldwide, and Golfsmith, the largest golf specialty retailer in the world.

It is not clear what the ultimate goal of the lawsuits might be, although several insiders believe if the patents are upheld it is likely that every facility using a launch monitor in its clubfitting might owe a licensing fee to Max Out Golf. That fee might be tied to the number of launch monitors used in a facility and it might be charged on a monthly basis, per launch monitor. At $500 a month (a figure several sources contacted by Golf Digest believe to be a reasonable estimate), a large national retailer would be charged $100,000 or more per month just to do clubfittings with a launch monitor.

Mark Timms, founder and CEO of Cool Clubs, has been in the clubfitting business for 25 years. He called the lawsuit “ludicrous.”

“Use of launch monitors is very common in the club fitting business,” Timms said, “but that does not mean we infringe on Max Out’s patents.”

Lawyers representing Max Out Golf did not respond to Golf Digest’s email request for comment. However, in a January filing with the Eastern District, they responded to the defendant’s petition for dismissal of the case this way: “Defendants continue to rely on conclusory statements and unsupported factual allegations that [the patents] are ineligible.

“Defendants over generalize the claims and declare them abstract. ... Furthermore, in their over simplification of the patent claims Defendants ignore claim limitations demonstrating an inventive step.”

Meanwhile, jury selection for the trial is scheduled for January.