An Update on the Titleist ProV1 Patent Infringement Battle

This dispute concerns an invention that, by everyone’s account, revolutionized the game of golf. In a matter of months, wound technology that had dominated the golf ball landscape for almost a hundred years was obsoleted by balls that use the Sullivan inventions at issue here – combining the distance of a solid core ball with the control of a wound ball. Sullivan’s inventions literally were the Holy Grail sought by every golf ball designer for decades. It is difficult to imagine stronger evidence of objective factors establishing non-obviousness of an invention than those presented to this jury.

Facing the daunting task of overturning the eight separate instances in which the jury rejected its obviousness defenses, Acushnet does the only thing it can – ignore all evidence it does not like, and substitute (or invite the Court to substitute) its own judgment and credibility assessments for those of the jury. But one simple fact compels denial of Acushnet’s motions: none of the prior art, alone or in the combinations argued by Acushnet, disclosed, taught, or suggested a multi-layer ionomer ball with a polyurethane outer cover layer having a Shore D hardness of less than 64. Given that Acushnet bore the burden to show by clear and convincing evidence that the four patents in suit were invalid, and given that all inferences are to be drawn in Callaway Golf’s favor, Acushnet cannot carry its burden with this critical gap in the evidence. Aside from ignoring evidence and re-weighing credibility, Acushnet alleges legal error concerning its “off-the-ball” claim construction, but the Court has now seen that Acushnet’s position is at odds with the undisputed evidence from Acushnet’s own witnesses. JMOL in favor of the party bearing burden at trial is only granted in “extreme cases” and this simply is not one of them.

Similarly, Acushnet’s alternate effort to seek a new trial lacks merit. The result at trial was not only just and consistent with the great weight of the evidence, but the bases Acushnet cites to overturn that result would lead to injustice – not remedy it. This is best illustrated by Acushnet assigning error to the Court’s exclusion of interim results from the reexamination proceedings – which exist only because of Acushnet’s own unlawful acts. Likewise, Acushnet seeks a new trial because of an alleged inconsistency in the results but, again, the fault is Acushnet’s. Acushnet failed to ensure the jury was provided with an instruction regarding how independent and dependent claims relate to one another, failed to object to a verdict form that did not explicitly define the relationship between such claims, and, most critically, waived any challenge to the alleged inconsistency by failing to pursue corrective measures when something could have been done – before the jury was dismissed. Prior to dismissing the jury, the Court invited counsel to raise any issues requiring attention. Acushnet’s counsel stood silent. The law does not reward post-trial attempts to capitalize on “errors” which a party strategically decides not to remedy at trial. Moreover, because the jury returned general verdicts concerning the legal issue of obviousness for each of the asserted claims, the Court is authorized by extensive precedent, including from the Third Circuit, to simply allow the verdicts to stand as-is. Thus, Acushnet is entitled to neither reversal of the jury’s verdicts nor a new trial, and its post-trial motions should be denied.

Acushnet also claims the patents are somehow obvious because Callaway Golf stopped practicing the claims during the 2003-2004 time frame. Acushnet’s argument makes no sense under the law and twists the relevant facts. As Tom Kennedy testified at trial, Callaway Golf’s efforts to improve the performance of its golf balls has led to a steady progression of technology. [Kennedy Tr. 1016:10¬17.] One such improvement is Callaway Golf’s patented ability to use reaction injection molding (RIM) when adhering outer cover materials to an inner cover layer. [Id. 954:17-955:10.] This molding process allows Callaway Golf to make remarkably thin outer covers. [Id.] The construction of Callaway Golf s later premium golf balls, such as the FIX Tour, therefore falls outside some of the limitations of the Sullivan patent claims. [See id.; 1013:9-1014:1; 1016:10-17.] Yet, Callaway Golf has not simply “abandoned” Mike Sullivan’s inventions as Acushnet contends. To the contrary, it has built upon Sullivan’s pioneering approach, by continuing to pursue technological improvements that result in thinner covers for its current line of golf balls which puts them slightly outside the asserted claims. Yet, all of C
allaway’s premium golf balls, just like Acushnet’s, have solid cores, ionomer inner covers, and soft polyurethane outer covers.

It took 25 to 40 designers, including Ph.D. polymer chemists, chemical engineers, mechanical engineers, and Ph.D. physicists, three years and over $170 million to design and launch the Rule 35. [Yagley Tr. 1026:17-1027:11; 1048:9-14]

Acushnet also claims it is not clear which patents are important to the success of the product, because Pro V1 sleeves are marked with a lot of patent numbers. But, Acushnet has presented no technical evidence that all, or even any one, of those patents actually covers the Pro V1 – as opposed to covering processes or tools related to the manufacture of the ball. Even if another patent did cover the ball, Acushnet provides no law or evidence that would then require the jury to ignore the overwhelming objective indicia of non-obviousness presented at trial. Thus, Acushnet’s reliance upon the mere marking of its packaging fails to undermine the reasonableness of the jury’s presumed finding that objective indicia strongly support a conclusion that the inventions are not obvious.