Acushnet (Titleist) patent-infringement case takes on start-up brands

**mvmac** · May 21, 2015

http://www.golfdigest.com/blogs/the-loop/2015/04/acushnet-patent-infringement-c.html

Quote:

Acushnet, the parent company of golf ball behemoth Titleist, is saying more than a dozen different balls from an array of small startup companies are infringing on its patents for dimple patterns.

So it’s suing them.

The lawsuit claims Acushnet has been “seriously damaged” by the alleged infringements, but the ultimate question may be whether the mere presence of this lawsuit might seriously damage the existence of these small brands.

Many offer low-priced versions of multilayer, urethane-cover golf balls. That’s the kind of construction typically played by tour players and a segment that now accounts for more than 40 percent of the U.S. golf ball market, according to figures from golf research firm Golf Datatech.

Filed April 6 in the U.S. District Court of Massachusetts in Boston, the lawsuit names 17 different balls from ten different companies. Among the companies listed are Rife (V-Motion), I Need the Ball (The Ball), Vice Golf (Pro) and Kick X (Tour-Z). According to the lawsuit, the dimple patterns on these balls are all the same: 318 dimples arranged in what the lawsuit terms “a triangluar dipyramid shape.”

It is not unusual for golf balls or golf clubs from several different brands or companies to be manufactured by the same vendor in Taiwan. This lawsuit does not name the specific vendor, focusing rather on the companies named in the suit that are selling the balls in the U.S. But through interviews and research of shipping records Golf Digest has learned that the unnamed vendor is Foremost Golf Manufacturing. Based in Taipei, Foremost’s website states that it is the largest golf ball manufacturer in Taiwan, producing 10 million balls monthly. It has more than a dozen balls in its own name on the current USGA conforming list.

In a recent email, Foremost’s Gavin Lee told Golf Digest the company has “several hundred” balls in its current catalog. “We work with the R&D; [department] with each of our customers,” he wrote, indicating that Foremost is the second-largest manufacturer of golf balls in the world behind Acushnet. “Every creation is a custom design.”

While no Titleist ball on the USGA’s conforming list utilizes a 318-dimple pattern, the patents in question cover a broad area of ball and dimple design that include patterns that range from 250 to 370 dimples.

Even for the largest companies, the golf ball business can be heavily litigious. A lawsuit between Acushnet and Callaway that began in 2006 went on for six years, and dealt with infinitesimal matters including the process of measuring cover material hardness. That one suit likely cost more in legal fees than any of these small brands sell in golf balls in any one year. To be sure, none of the companies named in this latest Acushnet lawsuit has that kind of legal stockpile or endurance.

Still, while several of these companies have declined comment, at least one has come out swinging.

“We understand why they are targeting us as we are a longer premium ball and one of the fastest growing brands on the market,” said Bob Koch, chief executive officer of Kick X Golf.

Another is I Need the Ball, whose latest ball the INTB 2.0 is offered on its website for $35 a dozen. The ball named in the Acushnet lawsuit is no longer available on its website. Said company co-founder Glen Sutton, “This is not going to end us. ... It stinks that they would go after the little guys.”

**SavvySwede** · May 21, 2015

Quote:

Originally Posted by mvmac

http://www.golfdigest.com/blogs/the-loop/2015/04/acushnet-patent-infringement-c.html

Quote:

While no Titleist ball on the USGA’s conforming list utilizes a 318-dimple pattern, the patents in question cover a broad area of ball and dimple design that include patterns that range from 250 to 370 dimples.

Sounds like Titleist just patented everything they could to try and keep the monopoly going.

**newtogolf** · May 22, 2015

Sounds like Titleist just patented everything they could to try and keep the monopoly going.

Between Titleist and Callaway I think they own almost every patent related to golf balls today.

**mvmac** · May 22, 2015

Between Titleist and Callaway I think they own almost every patent related to golf balls today.

I think Bridgestone is in that mix as well.

**billchao** · May 22, 2015

Unfortunately, this is just how businesses seem to work in all sorts of industries. Even if their claims aren't legitimate, a large company can bury smaller companies with these lawsuits and the cost alone is enough to persuade some of them to give up.

**RayG** · May 22, 2015

Well, that might explain 3UP going out of business... at least the ball business.

**newtogolf** · May 22, 2015

Unfortunately, this is just how businesses seem to work in all sorts of industries. Even if their claims aren't legitimate, a large company can bury smaller companies with these lawsuits and the cost alone is enough to persuade some of them to give up.

There are only lawsuits if companies try to circumvent the patents or avoid licensing them. I'm pretty certain that Titleist, Callaway and possible Bridgestone license the rights to their patented technology, you just have to pay for them.

**Ernest Jones** · May 22, 2015

There are only lawsuits if companies try to circumvent the patents or avoid licensing them. I'm pretty certain that Titleist, Callaway and possible Bridgestone license the rights to their patented technology, you just have to pay for them.

I think what @billchao is saying is that some companies will file suits that have no merit and no chance of winning because they know that they can stretch out the process to the point where the smaller company simply can't afford the lawsuit, even if they know they've got a good chance to win. It's like "buying the pot" in a poker game.

**newtogolf** · May 22, 2015

I think what @billchao is saying is that some companies will file suits that have no merit and no chance of winning because they know that they can stretch out the process to the point where the smaller company simply can't afford the lawsuit, even if they know they've got a good chance to win. It's like "buying the pot" in a poker game.

I understood what he meant, it's possible Achushnet filed a baseless lawsuit, but it's more likely they notified the defending companies they were in violation of their patents and the companies chose to ignore the letters so Acushnet had no choice but to take them to court.

**imsys0042** · May 22, 2015

I notice that the Snell ball is not on the list in the blog, and I think that's significant here. Someone as deep in the R&D; and knowing what the current state of patents are probably would avoid this kind of problem. I don't know the owners/people involved in the other companies, however this kind of stuff really gets on my nerves after awhile. It's worse in the Tech business (my industry) though. Patents are a mess though. You have to go to court to get one nullified if it shouldn't have been given in the first place.

To someone not in the golf business I could take this as one of two things:

1 - Titleist/Achushnet is trying to squash the little guys who can't fight back. They did take on Callaway for years however. The bigger companies have more staff and that might give them the resources to understand what would infringe and what would not.

2 - The smaller brands are infringing on their patents and they cannot agree with Titleist. Logically (not legally) there are only so many ways to make a golf ball. Compression, Cover material (thickness, method and softness) and number of pieces are three things that come to mind. We used to have fewer players in the market. With more, are we running out of ways to make golf balls?

One thing about patents and the ability to enforce them. At some point a "thing" becomes so common that it cannot be held by a single person or company. Not that golf balls are there yet. However look at the "swipe to unlock" patent that Apple held, or has. What we have there is something that was originally innovative in that few devices were touch based. Now most phones and other devices are touch based. Does Apple have the right to force others to come up with something else because it's so common to swipe now?

My feeling on that is no. Patents are generally in force for 20 years. 20 years is a long time in technology and it hurts innovation to not allow them to use swiping for unlocking phones. It also hurts (in the sense that they cannot get features that they want) the public because other manufacturers cannot use something that becomes basic.

My gut tells me that this case is a combo of 1 and 2 above. Titleist needs to be defensive with it's market position, at the same time the way that the patent system is structured, the other companies may very well be infringing. Probably a licensing model?

**acerimusdux** · May 22, 2015

Sounds like Titleist just patented everything they could to try and keep the monopoly going.

Well the idea of putting dimples on the ball was invented in 1905, so that's obviously no longer protected. And you can't just have patents on certain numbers of dimples, for example. That sentence about 250-370 dimples suggested to me as well a patent that might be overly broad.

But there must be something Titleist sees in the pattern actually used, the way the dimples are arranged (in a " triangluar dipyramid shape "), which they think they can show is in violation. They aren't just suing every manufacturer within a broad range. It seems the balls involved all use one very specific dimple pattern, and are all made by Foremost Golf. So the suit itself actually seems very narrow.

**newtogolf** · May 22, 2015

I notice that the Snell ball is not on the list in the blog, and I think that's significant here. Someone as deep in the R&D; and knowing what the current state of patents are probably would avoid this kind of problem. I don't know the owners/people involved in the other companies, however this kind of stuff really gets on my nerves after awhile. It's worse in the Tech business (my industry) though. Patents are a mess though. You have to go to court to get one nullified if it shouldn't have been given in the first place.

To someone not in the golf business I could take this as one of two things:

1 - Titleist/Achushnet is trying to squash the little guys who can't fight back. They did take on Callaway for years however. The bigger companies have more staff and that might give them the resources to understand what would infringe and what would not.

2 - The smaller brands are infringing on their patents and they cannot agree with Titleist. Logically (not legally) there are only so many ways to make a golf ball. Compression, Cover material (thickness, method and softness) and number of pieces are three things that come to mind. We used to have fewer players in the market. With more, are we running out of ways to make golf balls?

One thing about patents and the ability to enforce them. At some point a "thing" becomes so common that it cannot be held by a single person or company. Not that golf balls are there yet. However look at the "swipe to unlock" patent that Apple held, or has. What we have there is something that was originally innovative in that few devices were touch based. Now most phones and other devices are touch based. Does Apple have the right to force others to come up with something else because it's so common to swipe now?

My feeling on that is no. Patents are generally in force for 20 years. 20 years is a long time in technology and it hurts innovation to not allow them to use swiping for unlocking phones. It also hurts (in the sense that they cannot get features that they want) the public because other manufacturers cannot use something that becomes basic.

My gut tells me that this case is a combo of 1 and 2 above. Titleist needs to be defensive with it's market position, at the same time the way that the patent system is structured, the other companies may very well be infringing. Probably a licensing model?

I'm pretty sure Callaway had the major patents for golf balls that were part of their acquisition of Spalding as they filed litigation against Titleist and their Pro V1 golf balls. Callaway won the litigation but then sold the patent rights along with the Top Flite business in 2012. I believe Callaway gained a license to Titleist's adjustable hosel technology as part of the settlement.

**imsys0042** · May 22, 2015

I'm pretty sure Callaway had the major patents for golf balls that were part of their acquisition of Spalding as they filed litigation against Titleist and their Pro V1 golf balls. Callaway won the litigation but then sold the patent rights along with the Top Flite business in 2012. I believe Callaway gained a license to Titleist's adjustable hosel technology as part of the settlement.

I wasn't aware that Callaway sued Titlelist. I thought it was the other way around, interesting.

Shame so many older brands became shells of their former selves.

**newtogolf** · May 22, 2015

Quote:

Originally Posted by imsys0042

I wasn't aware that Callaway sued Titlelist. I thought it was the other way around, interesting.

Shame so many older brands became shells of their former selves.

Quote:

CARLSBAD, California (AP) — Callaway Golf said it has won a court order permanently halting sales of Acushnet Co.'s Titleist Pro V1 golf balls, which Callaway argued infringed on patents that it holds.

Acushnet said it will appeal the ruling, and has converted production of the golf balls so that they are outside the patents in question.

Callaway said late Monday that the U.S. District Court in Wilmington, Delaware, has granted the company's request for a permanent injunction on sales of Acushnet's current line of the Titleist Pro V1 balls, effective no later than Jan. 1. At Callaway's request, professional golfers will be allowed to use the balls through the end of this year.

The court also rejected a request from Acushnet to overturn a jury's December 2007 ruling in favor of Callaway in the patent dispute.

"We strongly disagree with the judge's ruling, and will file an appeal and seek relief from the injunction," Joe Nauman, an executive vice president with Acushnet, said in a news release late Monday.

Nauman said the ruling "will not have any impact on our ability to supply our customers with Pro V1 golf balls," because Acushnet in September converted production of existing Pro V1 models "so that they are outside of the patents in question."

He also said Acushnet plans to introduce new Titleist Pro V1 products early next year "that are also outside the scope of the patents in question."

Acushnet said it does not expect the ruling to have a "material adverse impact" on its financial results.

Callaway sued in June 2007 over the Titleist Pro V1 line of golf balls, introduced in 2000. Callaway argued its patents involve technological breakthroughs in producing multilayer, solid core balls that the company argued resulted "in performance that had previously eluded the industry" and revolutionized the game.

Acushnet argued that the Titleist Pro V1 is based on more than 70 of its own patents.

**billchao** · May 22, 2015

There are only lawsuits if companies try to circumvent the patents or avoid licensing them.

Of course companies can also file for patents on things they have absolutely no intention of developing and a lot of patents are granted for rather ambiguous things that cover a broad range of things, but I'm not looking to take this thread OT.

I wasn't speculating on this particular case, just making a general statement about wealthy companies and their ability to use litigation as a weapon.

I think what @billchao is saying is that some companies will file suits that have no merit and no chance of winning because they know that they can stretch out the process to the point where the smaller company simply can't afford the lawsuit, even if they know they've got a good chance to win. It's like "buying the pot" in a poker game.

Yea, this exactly. Good analogy, too.

**InTheRough** · May 22, 2015

Well the idea of putting dimples on the ball was invented in 1905, so that's obviously no longer protected. And you can't just have patents on certain numbers of dimples, for example. That sentence about 250-370 dimples suggested to me as well a patent that might be overly broad.

But there must be something Titleist sees in the pattern actually used, the way the dimples are arranged (in a "triangluar dipyramid shape"), which they think they can show is in violation. They aren't just suing every manufacturer within a broad range. It seems the balls involved all use one very specific dimple pattern, and are all made by Foremost Golf. So the suit itself actually seems very narrow.

the article says that the pattern of dimples on the golf ball are the same as the proV1x. It also states that the golf ball companies that are being sued used the same Taiwanese manufacturer as Titleist. More than likely means that the smaller companies asked the manufacturer for help with the molds and the manufacturer just used the Titleist mold for all of the balls.

It sucks for the smaller companies like 3up (i've heard very good things about their ball) which has already packed up shop because of the lawsuit but at the end of the day they are responsible for the product that they produce and Titleist has every right to defend their patents. They have invested a lot of money into R&D; and don't want to just give their competitive advantage away. This is a brutal way to do things but i bet Titleist is also hoping that this lawsuit dissuades any other company from copying their design in the future.

**newtogolf** · May 22, 2015

the article says that the pattern of dimples on the golf ball are the same as the proV1x. It also states that the golf ball companies that are being sued used the same Taiwanese manufacturer as Titleist. More than likely means that the smaller companies asked the manufacturer for help with the molds and the manufacturer just used the Titleist mold for all of the balls.

It sucks for the smaller companies like 3up (i've heard very good things about their ball) which has already packed up shop because of the lawsuit but at the end of the day they are responsible for the product that they produce and Titleist has every right to defend their patents. They have invested a lot of money into R&D; and don't want to just give their competitive advantage away. This is a brutal way to do things but i bet Titleist is also hoping that this lawsuit dissuades any other company from copying their design in the future.

I'm sure 3up could negotiate a deal with Titleist to license the dimple pattern patent. The problem is with the license fees included in 3ups costs, they likely won't be able to undercut the price of Pro V1's as they had been.

**imsys0042** · May 22, 2015

@newtogolf - thanks for posting that. That is very interesting indeed. I don't know if it's ingenious that a number of companies have produced good balls despite the patent issues, or that they have to add that to their cost and work around it.

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