It Was Only a Matter of Time; Acushnet, Bridgestone, and Callaway Hit with False Patent Marking Lawsuits Related to Golf Ball Patents
I suspect the in-house attorneys at the big golf companies have just been waiting to be named in a false patent marking lawsuit. Recently false patent marking lawsuits have become quite the rage based upon a plaintiff’s hopes of a major payday due to the quantity of products sold containing false patent markings. The typical situation is that a plaintiff identifies products that sell huge quantities of products and then digs around until they identify some products that list patents that are either expired or don’t actually cover the product. Since boatloads of golf balls are sold, I knew that the manufacturers would eventually become the target of the false patent marking plaintiffs. In this situation the plaintiff is Texas Data Co., L.L.C., which is likely a shell company established solely for the purpose of bringing these lawsuits.
So, what’s behind these lawsuits? I will let the plaintiff explain:
13. The marking and false marking statutes exist to give the public notice of patent rights. Congress intended the public to rely onmarking as a ready means of discerning the status of intellectual property embodied in an article of manufacture or design. Federalpatent policy recognizes an important public interest in permitting full and free competition in the use of ideas which are, in reality, apart of the public domain.
14. False patent marking is a serious problem. Acts of false marking deter innovation and stifle competition in the marketplace. If an article that is within the public domain is falsely marked, potential competitors may be dissuaded from entering the same market. False marks may also deter scientific research when an inventor sees a mark and decides to forgo continued research to avoid possible infringement. False marking can cause unnecessary investment in design around or costs incurred to analyze the validity or enforceability of a patent whose number has been marked upon a product with which a competitor would like to compete. Furthermore, false marking misleads the public into believing that a patentee controls the article in question (as well as like articles), externalizes the risk of error in the determination, placing it on the public rather than the manufacturer or seller of the article, and increases the cost to the public of ascertaining whether a patentee in fact controls the intellectual property embodied in an article. In each instance where it is represented that an article is patented, a member of the public desiring to participate in the market for the marked article must incur the cost of determining whether the involved patents are valid and enforceable. Failure to take on the costs of a reasonably competent search for information necessary to interpret each patent,investigation into prior art and other information bearing on thequality of the patents, and analysis thereof can result in a finding of willful infringement, which may treble the damages an infringer would otherwise have to pay. False markings may also create a misleading impression that the falsely marked product is technologically superior to previously available ones, as articles bearing the term “patent” maybe presumed to be novel, useful, and innovative.
15. The false marking statute explicitly permits qui tam actions. By permitting members of the public to sue on behalf of the government, Congress allowed individuals to help control false marking.
16. Plaintiff,on its own behalf and on behalf of the United States, seeks an award of monetary damages of not more than $500 for each of Defendant’s violations of 35 U.S.C. § 292(a), one-half of which shall be paid to the United States pursuant to 35 U.S.C. § 292(b).
Ahh, aren’t we lucky to have such guardians of the public interest!
The following are some highlights of the allegations made against these three golf ball manufacturers.
Allegations Against Acushnet
BACKGROUND
10. This is an action for false patent marking under Title 35, Section 292, of the United States Code, and for personal injuries arising from the use of Titleist Nxt Extreme branded and distributed by Defendant.
11. The Titleist Nxt Extreme product is a product placed into the stream of interstate commerce by Defendant.
12. Defendant has violated 35 U.S.C. § 292(a) by marking unpatented articles with the purpose of deceiving the public. More specifically, Defendant has, with the purpose of deceiving the public marked products with patents that have expired and, therefore, do not and cannot cover the marked products.FACTS
17. Plaintiff incorporates by reference the foregoing paragraphs as if fully set forth herein.
18. Defendant is a large, sophisticated company.
19. Defendant has, or regularly retains, legal counsel.
20. Defendant has experience applying for patents, obtaining patents, and/or litigating in patent infringement lawsuits.
21. Defendant knows that a patent expires; an expired patent cannot protect any product; a patent does not cover any product that is not within the scope of its claims.
22. Each false marking on the products identified in this Complaint is likely to, or at least has the potential to, discourage or deter persons and companies from commercializing competing products.
23. Defendant’s false marking of its products has wrongfully quelled competition with respect to such products thereby causing harm to Plaintiff, the United States, and the public.
24. Defendant has wrongfully and illegally advertised patent monopolies which it does not possess and, as a result, has benefited by maintaining a substantial market share with respect to the products referenced in this Complaint.
25. Defendant marked (or caused to be marked) at least the following products: Titleist Nxt Extreme with the following patent numbers: United States Patent No. 4,779,387 (“the ‘387 Patent”); No. 4,865,326 (“the ‘326 Patent”); No. 4,960,281 (“the ‘281 Patent”); No. 4,988,280 (“the ‘280 Patent”); No. 5,018,742 (“the ‘742 Patent”); No. 5,158,736; No. 5,160,536; No. 5,259,752; No. 5,368,800; No. 5,525,891; No. 5,634,399; No. 5,795,529; No. 6,103,787; No. 6,726,869; No. 6,729,976; No. 6,757,353; No. 6,809,822; No. 6,825,931; No. 6,839,138; and No. 7,156,757.
26. The ‘387 Patent, titled “method and apparatus for automatically buffing a golf ball,” was issued by the United States Patent Office on October 25, 1988, and expired at the latest on February 5, 2008. A copy of the ’387 patent is attached as Exhibit “A”.
27. The ‘326 Patent, titled “optical brightness in golf ball clear coatings,” was issued by the United States Patent Office on September 12, 1989, and expired at the latest on September 24, 2007. A copy of the ‘326 patent is attached as Exhibit “B”.
28. The ‘281 Patent, titled “golf ball,” was issued by the United States Patent Office on October 2, 1990, and expired at the latest on October 17, 2009. A copy of the ‘281 patent is attached as Exhibit “C”.
29. The ‘280 Patent, titled “apparatus for stripping a molded u-shaped article from an injection mold,” was issued by the United States Patent Office on January 29, 1991, and expired at latest on June 26, 2009. A copy of the ‘280 patent is attached as Exhibit “D”.
30. The ‘742 Patent, titled “golf ball clear coating with optical brightness,” was issued by the United States Patent Office on May 28, 1991, and expired at latest on September 12, 2006 as a result of a terminal disclaimer noted on the face the patent. A copy of the ‘742 patent is attached as Exhibit “E”.
31. Because the ‘387, ‘326, ‘281, ‘280, and ‘742 patents expired, at the latest, on October 17, 2009, any product or method once covered by the claims of the five patents are no longer protected by the patent laws of the United States. When the patents expired, their formerly protected property entered the public domain. When a patent expires, all monopoly rights in the patent terminate irrevocably and, therefore, a product marked with an expired patent is not “patented” by such expired patent.
32. Defendant knows that, when a patent expires, all monopoly rights in the patent terminate irrevocably.
33. Defendant knew that the ‘387 patent expired, at the latest, on February 5, 2008.
34. Defendant knew that the ‘326 patent expired, at the latest, on September 24, 2007.
35. Defendant knew that the ‘281 parent expired, at the latest, on October 17, 2009.
36. Defendant knew that the ‘280 parent expired, at the latest, on June 26, 2009.
37. Defendant knew that the ‘742 patent expired, at the latest, on September 12, 2006.
38. Despite the fact that the claims of the five patents are no longer afforded patent protection, Defendant marked (or caused to be marked) at least its Titleist Nxt Extreme with the ’387, ‘326, ‘281, ‘280, and ‘742 patents following their expiration date.
39. Alternatively, because all monopoly rights in the ‘387, ‘326, ‘281, ‘280, and ‘742 patents have terminated, Defendant cannot have any reasonable belief that its Titleist Nxt Extreme products are patented or covered by the five patents.
40. Defendant intended to deceive the public by marking (or causing to be marked) its Titleist Nxt Extreme products with the ‘387, ‘326, ‘281, ‘280, and ‘742 patents.
41. Defendant knew that its Titleist Nxt Extreme products are not covered by the ‘387, ‘326, ‘281, ‘280, nor ‘742 patents.
42. Therefore, Defendant intentionally deceived the public by labeling the Titleist Nxt Extreme product packaging with the ‘387, ‘326, ‘281, ‘280, and ‘742 patents.
43. Defendant intended to deceive the public by marking (or causing to be marked) the Titleist Nxt Extreme product with the ‘387, ‘326, ‘281, ‘280, and ‘742 patents.
Allegations Against Bridgestone
BACKGROUND
2. This is an action for false patent marking under Title 35, Section 292, of the United States Code, and for personal injuries arising from the use of Tour B330, e5+, Tour B330-RX, and Precept Lady iQ Plus branded and distributed by Defendant.
3. The Tour B330 product is a product placed into the stream of interstate commerce by Defendant.
4. The e5+ product is a product placed into the stream of interstate commerce by Defendant.
5. The Tour B330-RX product is a product placed into the stream of interstate commerce by Defendant.
6. The Precept Lady iQ Plus product is a product placed into the stream of interstate commerce by Defendant.
7. Defendant has violated 35 U.S.C. § 292(a) by marking unpatented articles with the purpose of deceiving the public. More specifically, Defendant has, with the purpose of deceiving the public marked products with patents that have expired and, therefore, do not and cannot cover the marked products.FACTS
21. Plaintiff incorporates by reference the foregoing paragraphs as if fully set forth herein.
22. Defendant is a large, sophisticated company.
23. Defendant has, or regularly retains, legal counsel.
24. Defendant has experience applying for patents, obtaining patents, and/or litigating in patent infringement lawsuits.
25. Defendant knows that a patent expires; an expired patent cannot protect any product; a patent does not cover any product that is not within the scope of its claims.
26. Each false marking on the products identified in this Complaint is likely to, or at least has the potential to, discourage or deter persons and companies from commercializing competing products.
27. Defendant’s false marking of its products has wrongfully quelled competition with respect to such products thereby causing harm to Plaintiff, the United States, and the public.
28. Defendant has wrongfully and illegally advertised patent monopolies which it does not possess and, as a result, has benefited by maintaining a substantial market share with respect to the products referenced in this Complaint.
29. Defendant marked (or caused to be marked) at least the following products: Tour B330 with the following patent numbers: United States Patent No. 4,915,389 (“the ‘389 Patent”); No. 5,024,444 (“the ‘444 Patent”); No. 5,252,652; No. 5,789,616; No. 5,857,924; No. 5,874,038; No. 5,902,193; No. 5,906,551; No. 5,908,359; No. 6,053,820; No. 6,123,534; No. 6,624,221; No. 6,634,961; No. 6,833,400; No. 7,278,932; No. 7,335,115; and No. 7,329,194.
30. Defendant marked (or caused to be marked) at least the following products: e5 with the following patent numbers: United States Patent No. 4,915,389 (“the ‘389 Patent”); No. 5,024,444 (“the ‘444 Patent”); No. 5,252,652; No. 5,752,889; No. 5,789,616; No. 5,857,924; No. 5,874,038; No. 5,902,193; No. 5,906,551; No. 6,123,534; No. 6,747,100; No. 6,764,415; No. 6,806,323; No. 6,837,804; No. 5,908,359; No. 6,053,820; and No. 6,123,628.
31. Defendant marked (or caused to be marked) at least the following products: Tour B330-RX with the following patent numbers: United States Patent No. 4,915,389 (“the ‘389 Patent”); No. 5,024,444 (“the ‘444 Patent”); No. 5,252,652; No. 5,789,616; No. 5,857,924; No. 5,874,038; No. 5,902,193; No. 5,906,551; No. 5,908,359; No. 6,053,820; No. 6,123,534; No. 6,592,470; No. 6,624,221; No. 6,634,961; No. 6,663,507; No. 6,786,836; No. 6,833,400; and No. 7,278,932.
32. Defendant marked (or caused to be marked) at least the following products: Precept Lady iQ Plus with the following patent numbers: United States Patent No. 4,613,403 (“the ‘403 Patent”); No. 4,915,389 (“the ‘389 Patent”); No. 5,024,444 (“the ‘444 Patent”); No. 5,252,652; No. 5,695,413; No. 5,789,616; No. 5,874,038; No. 5,902,193; No. 5,906,551; and No. 6,123,534.
33. The ‘403 Patent, titled “method for treating golf ball surface with glow discharge plasma and apparatus therefor,” was issued by the United States Patent Office on September 23, 1986, and expired at the latest on June 13, 2005. A copy of the ’403 patent is attached as Exhibit “A”.
34. The ‘389 Patent, titled “golf balls,” was issued by the United States Patent Office on April 10, 1990, and expired at the latest on November 16, 2008. A copy of the ‘389 patent is attached as Exhibit “B”.
35. The ‘444 Patent, titled “golf ball,” was issued by the United States Patent Office on June 18, 1991, and expired at the latest on November 9, 2009. A copy of the ‘444 patent is attached as Exhibit “C”.
36. Because the ‘403 ‘389 and ‘444 patents expired, at the latest, on November 9, 2009, any product or method once covered by the claims of the three patents are no longer protected by the patent laws of the United States. When the patents expired, their formerly protected property entered the public domain. When a patent expires, all monopoly rights in the patent terminate irrevocably and, therefore, a product marked with an expired patent is not “patented” by such expired patent.
37. Defendant knows that, when a patent expires, all monopoly rights in the patent terminate irrevocably.
38. Defendant knew that the ‘403 patent expired, at the latest, on June 13, 2005.
39. Defendant knew that the ‘389 patent expired, at the latest, on November 16, 2008.
40. Defendant knew that the ‘444 patent expired, at the latest, on November 9, 2009.
41. Despite the fact that the claims of the three patents are no longer afforded patent protection, Defendant marked (or caused to be marked) at least its Tour B330, e5+, Tour B330-RX and Precept Lady iQ Plus with the ‘403, ‘389 and/or ‘444 patents following their expiration date.
42. Alternatively, because all monopoly rights in the ‘403, ‘389 and ‘444 patents have terminated, Defendant cannot have any reasonable belief that its Tour B330, e5+, Tour B330-RX and Precept Lady iQ Plus products are patented or covered by any of the three patents.
43. Defendant intended to deceive the public by marking (or causing to be marked) its Tour B330, e5+, Tour B330 -RX and Precept Lady iQ Plus products with the ‘403, ‘389 and/or ‘444 patents.
44. Defendant knew that its Tour B330, e5+, Tour B330-RX and Precept Lady iQ Plus products are not covered by the ‘403, ‘389 nor ‘444 patents.
45. Therefore, Defendant intentionally deceived the public by labeling the Tour B330, e5+, Tour B330-RX and Precept Lady iQ Plus product packaging with the ‘403, ‘389 and/or ‘444 patents.
46. Defendant intended to deceive the public by marking (or causing to be marked) the Tour B330, e5+, Tour B330-RX and Precept Lady iQ Plus product with the ‘403, ‘389 and/or ‘444 patents.
Allegations Against Callaway
BACKGROUND
2. This is an action for false patent marking under Title 35, Section 292, of the United States Code, and for personal injuries arising from the use of Warbird, HX HOT Bite, Big Bertha Diablo, Tour iX, and Warbird Plus branded and distributed by Defendant.
3. The Warbird product is a product placed into the stream of interstate commerce by Defendant.
4. The HX HOT Bite product is a product placed into the stream of interstate commerce by Defendant.
5. The Big Bertha Diablo product is a product placed into the stream of interstate commerce by Defendant.
6. The Tour iX product is a product placed into the stream of interstate commerce by Defendant.
7. The Warbird Plus product is a product placed into the stream of interstate commerce by Defendant.
8. Defendant has violated 35 U.S.C. § 292(a) by marking unpatented articles with the purpose of deceiving the public. More specifically, Defendant has, with the purpose of deceiving the public:a. marked products with patents that have expired and, therefore, do not and cannot cover the marked products;
b. marked products with patents having a scope which does not cover the marked products;
c. marked products with language indicating that the products are the subject of pending patent applications when no relevant application is pending; and/or
d. used in advertising in connection with unpatented products the word “patent” and/or any word or number importing that the product is patented.FACTS
22. Plaintiff incorporates by reference the foregoing paragraphs as if fully set forth herein.
23. Defendant is a large, sophisticated company.
24. Defendant has, or regularly retains, legal counsel.
25. Defendant has experience applying for patents, obtaining patents, and/or litigating in patent infringement lawsuits.
26. Defendant knows that a patent expires; an expired patent cannot protect any product; a patent does not cover any product that is not within the scope of its claims.
27. Each false marking on the products identified in this Complaint is likely to, or at least has the potential to, discourage or deter persons and companies from commercializing competing products.
28. Defendant’s false marking of its products has wrongfully quelled competition with respect to such products thereby causing harm to Plaintiff, the United States, and the public.
29. Defendant has wrongfully and illegally advertised patent monopolies which it does not possess and, as a result, has benefited by maintaining a substantial market share with respect to the products referenced in this Complaint.
30. Defendant marked (or caused to be marked) at least the following products: Warbird with the following patent numbers: United States Patent No. D434,814; No. D435,701; No. D449,359; No. 4,838,556 (“the ‘556 Patent”); No. 4,852,884 (“the ‘884 Patent”); No. 4,884,814 (“the ‘814 Patent”); No. 4,911,451 (“the ‘451 Patent”); No. 5,009,427; No. 5,018,741; No. 5,044,638; No. 5,060,953; No. 5,120,791; No. 5,273,287; No. 5,300,325; No. 5,306,760; No. 5,312,857; No. 5,324,783; No. 5,328,959; No. 5,360,314; No. 5,368,304; No. 5,397,840; No. 5,409,233; No. 5,409,974; No. 5,459,220; No. 5,470,075; No. 5,482,286; No. 5,494,291; No. 5,503,397; No. 5,507,493; No. 5,542,677; No. 5,569,100; No. 5,580,057; No. 5,580,323; No. 5,588,924; No. 5,591,803; No. 5,688,869; No. 5,722,543; No. 5,733,207; No. 5,770,325; No. 5,772,532; No. 5,827,134; No. 5,885,173; No. 5,902,855; No. 5,971,870; No. 5,971,872; No. 6,001,177; No. 6,033,724; No. 6,100,361; No. 6,149,983; No. 6,179,730; No. 6,191,185; No. 6,193,616; No. 6,224,499; No. 6,239,222; No. 6,245,858; No. 6,258,302; No. 6,267,693; No. 6,271,316; No. 6,277,920; No. 6,312,347; No. 6,315,684; No. 6,325,730; No. 6,331,150; No. 6,340,503; No. 6,350,114; No. 6,350,815; No. 6,368,236; No. 6,376,612; No. 6,394,915; No. 6,395,861; No. 6,407,176; No. 6,413,172; No. 6,441,056; No. 6,464,601; No. 6,485,377; No. 6,492,464; No. 6,494,792; No. 6,537,159; No. 6,551,203; No. 6,565,457; No. 6,573,335; No. 6,582,327; No. 6,602,153; No. 6,612,940; No. 6,639,024; No. 6,652,341; No. 6,736,736; No. 6,739,985; No. 6,743,847; No. 6,800,695; No. 6,814,677; No. 6,846,248; No. 6,881,049; No. 6,890,272; No. 6,939,253; No. 6,964,623; No. 6,979,271; No. 6,986,719; No. 6,991,562; No. 7,0410,11; No. 7,048,651; No. 7,160,211; No. 7,179,178; and No. 7,199,192..
31. Defendant marked (or caused to be marked) at least the following products: HX HOT Bite with the following patent numbers: United States Patent No. D449,359; No. 4,911,451 (“the ‘451 Patent”); No. 5,120,791; No. 5,300,325; No. 5,306,760; No. 5,312,857; No. 5,324,783; No. 5,328,959; No. 5,368,304; No. 5,397,840; No. 5,409,233; No. 5,409,974; No. 5,459,220; No. 5,494,291; No. 5,516,847; No. 5,542,677; No. 5,580,057; No. 5,591,803; No. 5,645,497; No. 5,688,869; No. 5,770,325; No. 5,779,561; No. 5,803,831; No. 5,800,284; No. 5,820,489; No. 5,830,087; No. 5,885,173; No. 5,902,855; No. 5,971,870; No. 5,971,872; No. 6,015,356; No. 6,042,488; No. 6,100,336; No. 6,149,536; No. 6,152,835; No. 6,179,730; No. 6,193,616; No. 6,220,972; No. 6,245,858; No. 6,267,693; No. 6,271,316; No. 6,277,035; No. 6,290,615; No. 6,350,815; No. 6,368,237; No. 6,376,612; No. 6,409,614; No. 6,469,102; No. 6,478,697; No. 6,492,464; No. 6,494,792; No. 6,561,928; No. 6,595,872; No. 6,623,381; No. 6,648,775; No. 6,743,847; No. 6,793,593; No. 6,800,695; No. 6,913,549; No. 6,958,020; No. 6,979,272; No. 7,041,011; No. 7,048,651; No. 7,083,534; No. 7,118,497; No. 7,128,666; No. 7,156,755; No. 7,175,543; No. 7,198,577; No. 7,198,578; and No. 7,199,192.
32. Defendant marked (or caused to be marked) at least the following products: Big Bertha Diablo with the following patent numbers: United States Patent No. D449,359; No. 4,911,451 (“the ‘451 Patent”); No. 5,120,791; No. 5,300,325; No. 5,306,760; No. 5,312,857; No. 5,324,783; No. 5,328,959; No. 5,360,314; No. 5,368,304; No. 5,397,840; No. 5,409,233; No. 5,409,974; No. 5,459,220; No. 5,470,075; No. 5,494,291; No. 5,542,677; No. 5,580,057; No. 5,580,323; No. 5,588,924; No. 5,591,803; No. 5,688,869; No. 5,722,543; No. 5,733,207; No. 5,770,325; No. 5,827,134; No. 5,885,173; No. 5,902,855; No. 5,971,870; No. 5,971,872; No. 6,001,177; No. 6,033,724; No. 6,100,336; No. 6,100,361; No. 6,149,983; No. 6,179,730; No. 6,191,185; No. 6,193,616; No. 6,239,222; No. 6,245,858; No. 6,258,302; No. 6,267,693; No. 6,271,316; No. 6,277,920; No. 6,290,615; No. 6,312,347; No. 6,315,684; No. 6,325,730; No. 6,340,503; No. 6,350,114; No. 6,350,815; No. 6,368,236; No. 6,376,612; No. 6,394,915; No. 6,395,861; No. 6,407,176; No. 6,413,172; No. 6,441,056; No. 6,461,253; No. 6,485,377; No. 6,492,464; No. 6,494,792; No. 6,565,457; No. 6,573,335; No. 6,612,940; No. 6,736,736; No. 6,739,985; No. 6,743,847; No. 6,800,695; No. 6,881,049; No. 6,958,020; No. 6,979,272; No. 7,048,651; No. 7,083,534; No. 7,118,497; No. 7,128,666; No. 7,160,211; No. 7,198,577; No. 7,198,578; and No. 7,199,192.
33. Defendant marked (or caused to be marked) at least the following products: Tour iX with the following patent numbers: United States Patent No. D449,359; No. 4,838,556 (“the ‘556 Patent”); No. 4,852,884 (“the ‘884 Patent”); No. 5,018,740; No. 5,116,060; No. 5,150,906; No. 5,409,233; No. 5,409,974; No. 5,459,220; No. 5,494,291; No. 5,770,325; No. 5,779,562; No. 5,803,831; No. 5,820,488; No. 5,885,173; No. 5,976,443; No. 5,984,806; No. 6,015,356; No. 6,057,403; No. 6,083,119; No. 6,100,361; No. 6,117,025; No. 6,120,393; No. 6,142,887; No. 6,149,983; No. 6,179,730; No. 6,191,185; No. 6,193,618; No. 6,210,293; No. 6,213,894; No. 6,213,895; No. 6,244,977; No. 6,245,859; No. 6,270,429; No. 6,277,034; No. 6,277,920; No. 6,287,217; No. 6,290,614; No. 6,290,615; No. 6,29,9550; No. 6,309,312; No. 6,319,153; No. 6,376,612; No. 6,379,266; No. 6,379,269; No. 6,394,913; No. 6,394,914; No. 6,394,915; No. 6,406,384; No. 6,413,172; No. 6,422,953; No. 6,422,954; No. 6,425,833; No. 6,431,999; No. 6,432,000; No. 6,435,983; No. 6,435,985; No. 6,435,987; No. 6,436,327; No. 6,440,012; No. 6,441,056; No. 6,443,858; No. 6,450,898; No. 6,458,047; No. 6,461,253; No. 6,468,168; No. 6,478,697; No. 6,482,109; No. 6,495,633; No. 6,503,156; No. 6,506,130; No. 6,520,871; No. 6,533,566; No. 6,548,618; No. 6,561,924; No. 6,561,927; No. 6,562,912; No. 6,569,034; No. 6,585,607; No. 6,585,608; No. 6,592,472; No. 6,595,872; No. 6,595,873; No. 6,612,939; No. 6,612,940; No. 6,612,941; No. 6,616,551; No. 6,623,381; No. 6,634,962; No. 8,838,184; No. 6,638,185; No. 6,639,024; No. 6,648,775; No. 6,648,777; No. 6,663,508; No. 6,663,509; No. 6,667,001; No. 6,716,954; No. 6,739,985; No. 6,755,634; No. 6,767,294; No. 6,769,900; No. 6,776,731; No. 6,787,626; No. 6,790,149; No. 6,793,593; No. 6,837,805; No. 6,855,073; No. 6,855,077; No. 6,872,154; No. 6,872,782; No. 6,8810,49; No. 6,896,629; No. 6,902,499; No. 6,905,424; No. 6,905,427; No. 6,905,648; No. 6,913,549; No. 6,929,568; No. 6,932,721; No. 6,951,519; No. 6,958,020; No. 6,969,477; No. 6,974,854; No. 6,979,272; No. 6,986,721; No. 6,991,562; No. 6,992,163; No. 7,026,430; No. 7,041,011; No. 7,048,651; No. 7,060,777; No. 7,066,843; No. 7,074,138; No. 7,083,534; No. 7,147,578; No. 7,118,497; No. 7,121,961; No. 7,128,666; No. 7,134,974; No. 7,160,207; No. 7,160,210; No. 7,182,701; No. 7,198,577; No. 7,198,578; No. 7,199,192; No. 7,208,562; and No. 7,244,196.
34. Defendant marked (or caused to be marked) at least the following products: Warbird Plus with the following patent numbers: United States Patent No. D449,358; No. 4,911,451 (“the ‘451 Patent”); No. 5,120,791; No. 5,300,325; No. 5,306,760; No. 5,312,857; No. 5,324,783; No. 5,328,959; No. 5,360,314; No. 5,368,304; No. 5,397,840; No. 5,409,233; No. 5,409,974; No. 5,459,220; No. 5,470,075; No. 5,494,291; No. 5,542,677; No. 5,580,057; No. 5,580,323; No. 5,588,924; No. 5,591,803; No. 5,688,869; No. 5,722,543; No. 5,733,207; No. 5,770,325; No. 5,827,134; No. 5,885,173; No. 5,902,855; No. 5,971,870; No. 5,971,872; No. 6,001,177; No. 6,033,724; No. 6,100,336; No. 6,100,361; No. 6,149,983; No. 6,179,730; No. 6,191,185; No. 6,193,616; No. 6,239,222; No. 6,245,858; No. 6,258,302; No. 6,267,693; No. 6,271,316; No. 6,277,920; No. 6,290,615; No. 6,312,347; No. 6,315,684; No. 6,325,730; No. 6,340,503; No. 6,350,114; No. 6,350,815; No. 6,368,236; No. 6,376,612; No. 6,394,915; No. 6,395,861; No. 6,407,176; No. 6,413,172; No. 6,441,056; No. 6,461,253; No. 6,485,377; No. 6,492,464; No. 6,494,792; No. 6,565,457; No. 6,573,335; No. 6,612,940; No. 6,639,024; No. 6,736,736; No. 6,739,985; No. 6,743,847; No. 6,800,695; No. 6,881,049; No. 6,958,020; No. 6,979,272; No. 7,048,651; No. 7,083,534; No. 7,118,497; No. 7,128,666; No. 7,160,211; No. 7,198,577; No. 7,198,578; andNo. 7,199,192.
35. The ‘556 Patent, titled “golf ball core by addition of dispersing agents,” was issued by the United States Patent Office on June 13, 1989, and expired at the latest on December 24, 2007. A copy of the ’556 patent is attached as Exhibit A.
36. The ‘884 Patent, titled “use of metal carbamate accelerator in peroxide-cured golf ball center formulation,” was issued by the United States Patent Office on August 1, 1989, and expired at the latest on December 24, 2007. A copy of the ‘884 patent is attached as Exhibit B.
37. The ‘814 Patent, titled “golf ball,” was issued by the United States Patent Office on December 5, 1989, and expired at the latest on January 15, 2008. A copy of the ‘814 patent is attached as Exhibit C.
38. The ‘451 Patent, titled “golf ball cover of neutralized poly(ethylene-acrylic acid) copolymer,” was issued by the United States Patent Office on March 27, 1990, and expired at the latest on March 29, 2009. A copy of the ‘451 patent is attached as Exhibit D.
39. Because the ‘556, ‘884, ‘814, and ‘451 patents expired, at the latest, on March 29, 2009, any product or method once covered by the claims of the three patents are no longer protected by the patent laws of the United States. When the patents expired, their formerly protected property entered the public domain. When a patent expires, all monopoly rights in the patent terminate irrevocably and, therefore, a product marked with an expired patent is not “patented” by such expired patent.
40. Defendant knows that, when a patent expires, all monopoly rights in the patent terminate irrevocably.
41. Defendant knew that the ‘556 patent expired, at the latest, on December 24, 2007.
42. Defendant knew that the ‘884 patent expired, at the latest, on December 24, 2007.
43. Defendant knew that the ‘814 patent expired, at the latest, on January 15, 2008.
44. Defendant knew that the ‘451 patent expired, at the latest, on March 29, 2009.
45. Despite the fact that the claims of the four patents are no longer afforded patent protection, Defendant marked (or caused to be marked) at least its Warbird, HX HOT Bite, Big Bertha Diablo, Tour iX, and Warbird Plus with the ‘556, ‘884, ‘814, and/or ‘451 patents following their expiration date.
46. Alternatively, because all monopoly rights in the ‘556, ‘884, ‘814, and ‘451 patents have terminated, Defendant cannot have any reasonable belief that its Warbird, HX HOT Bite, Big Bertha Diablo, Tour iX, and Warbird Plus products are patented or covered by any of the four patents.
47. Defendant intended to deceive the public by marking (or causing to be marked) its Warbird, HX HOT Bite, Big Bertha Diablo, Tour iX, and Warbird Plus products with the ‘556, ‘884, ‘814, and/or ‘451 patents.
48. Defendant knew that its Warbird, HX HOT Bite, Big Bertha Diablo, Tour iX, and
Warbird Plus products are not covered by the ‘556, ‘884, ‘814, nor ‘451 patents.
49. Therefore, Defendant intentionally deceived the public by labeling the Warbird, HX HOT Bite, Big Bertha Diablo, Tour iX, and Warbird Plus product packaging with the ‘556, ‘884, ‘814, and/or ‘451 patents.
50. Defendant intended to deceive the public by marking (or causing to be marked) the Warbird, HX HOT Bite, Big Bertha Diablo, Tour iX, and Warbird Plus product with the ‘556, ‘884, ‘814, and/or ‘451 patents.
Well, I predict that Texas Data is going to be disappointed, and if they aren’t then I am going to be disappointed that I didn’t jump on board this treasure hunt months ago!
Dave Dawsey – The IP Golf Guy