Tee it Up Again! Fed. Circuit Orders Mulligan in Golf Ball Case

[WSJ_law_blog]

The big golf showdown on everyone’s radar screen on Friday involves Tiger Woods, Padraig Harrington, Vijay Singh, Hunter Mahan and others, all of whom are dueling it out in Minnesota for the PGA Championship, slated to wrap up Sunday.

But fans of both golf and patent-law might find equally compelling the latest in the shootout that’s been going on for years between golf-equipment makers Callaway Golf Co. and Fortune Brands Inc., the maker of Titleist-brand golf equipment, over the best-selling Titleist Pro V1 line of golf balls.

Players who swear by the Pro V1 (including the Law Blog’s brother, a 5-handicapper, who loves the feel it gives him around the green) will be pleased to know that a court injunction against the sale of Pro V1s was lifted earlier Friday by the Federal Circuit. The Federal Circuit also threw out a 2007 jury verdict against the Fortune Brands unit that makes Titleist balls, Acushnet, and ordered a new trial on patent infringement charges brought by rival Callaway Golf Co. Click here for the story from Dow Jones Newswires.

The backstory, for golf and patent geeks, is really pretty fascinating. (For all you could possibly need to know, plus a little more, check out David Dawsey’s blog at golf-patents.com.)

In any event, back in 2007, a jury ruled for Callaway, finding that Acushnet’s Pro V1 ball infringed several patents obtained by Callaway when it bought Top Flite several years ago. Late last year, a federal judge in Delaware, Sue Robinson, granted an injunction to halt the sale of Pro V1s.

However, Acushnet claims that in September of 2008, it modified the design of the ball to avoid infringing Callaway’s patents. So it kept on selling its ball. In March of this year, Callaway sued the company again, alleging that the infringement had continued. At that time, however, Acushnet sued back, alleging Callaway’s Tour i and Tour ix balls violated Acushnet’s patents. (Click here for Dawsey’s post on that.)

Earlier today, however, the Federal Circuit overturned the 2007 jury verdict, saying 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. We don’t have the opinion, nor does Dawsey, for now, but we’d suggest you check Dawsey’s site a little later.

For more on the history of the kerfuffle, and a great synopsis of why and how the Pro V1 took off earlier this decade, click here for WSJ golf writer John Paul Newport’s story from October 2007.