Regular readers of the Golf-Patents blog know that Callaway
and Acushnet are slugging it out regarding golf balls and golf clubs. Click here to brush up on the background of the golf club patent infringement
lawsuit.
The most recent interesting event in the club lawsuit
involves a subpoena being served on the USGA by Acushnet (click APPENDIX A – INSTRUCTIONS
Under Rule 30(b)(6) of the Federal Rules of Civil Procedure, the United States Golf Association (“USGA”) has a duty to designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, to testify relating to the Topics for Examination listed below. The USGA may set forth, for each person designated, the matters on which the person will testify.
TOPICS FOR EXAMINATION
1. Testing by the USGA of the frequency of the golf club head or golf club head striking plate of any club manufactured or provided to the USGA prior to March 14, 2000, or comes from a product line first offered to the public prior to March 14, 2000, where the golf club head or golf club head striking plate evidences a frequency within a range of 2800 Hz to 8500 Hz.
2. The USGA’s decision to develop a test for determining compliance with Rule 4-1e, Appendix II of the USGA Rules of Golf, including but not limited to all non-confidential communications, memoranda, visits, meetings and public forums concerning that decision.
3. The introduction of thin-faced drivers, or drivers with a “spring-like” effect, into the marketplace.
4. The design, development and implementation of tests or methods for measuring compliance with Rule 4-le, Appendix II of the USGA Rules of Golf, including but not limited to (1) the “Procedure for Measuring the Velocity Ratio of a Club Head for Conformance to Rule 4-1(e), Appendix II (Rev. 2, 1999)”; and (2) the Pendulum Test, including but not limited to all non-confidential communications, memoranda, visits, meetings and public forums concerning that decision.
5. All work performed by outside experts or consultants for the USGA relating to tests or methods for measuring compliance with Rule 4-1e, Appendix 11 of the USGA Rules of Golf, including but not limited to (1) the “Procedure for Measuring the Velocity Ratio of a Club Head for Conformance to Rule 4-1(e), Appendix 11 (Rev. 2, 1999)”; and (2) the Pendulum Test.
6. All communications between the USGA and the Royal & Ancient relating to (1) thin-faced clubs, (2) the “spring like” effect of clubs, (3) the coefficient of restitution of club heads or club head striking plates, and/or (4) the frequency of club heads or club head striking plates.
7. All non-confidential communications between the USGA and Callaway regarding (1) thin-faced clubs, (2) the “spring like” effect of clubs, (3) the coefficient of restitution of club heads or club head striking plates, and/or (4) the frequency of the club heads or club head striking plates.
8. All clubs that were tested for conformance with Rule 4-1e, Appendix II of the USGA Rules of Golf that the USGA acquired in a non-confidential manner and which it either acquired prior to March 14, 2000, or was from a product line first sold to the public prior to March 14, 2000.
9. All clubs where the USGA has publicly stated that the club does not conform to Rule 4-1 e, Appendix 11 of the USGA Rules of Golf.
APPENDIX B
I. For each golf club manufactured or provided to the USGA prior to March 14, 2000, or comes from a product line first offered to the public prior to March 14, 2000, all test data and golf clubs tested by the USGA where the club evidences a frequency of the club head or club head striking plate within a range of 2800 Hz to 8500 Hz.
2. All non-confidential documents, whether internal or with third parties, including but not limited to any communications, memoranda, visits, meetings and public forums, relating to the USGA’s decision to develop a test for determining compliance with Rule 4-1e, Appendix II of the USGA Rules of Golf.
3. All non-confidential documents evidencing the introduction of thin-faced drivers, or drivers with a “spring-like” effect, into the marketplace.
4. All non-confidential documents, whether internal or with third parties, including but not limited to any communications, memoranda, visits, meetings and public forums, relating to the design, development and implementation of any test or method for measuring compliance with Rule 4-1e, Appendix II of the USGA Rules of Golf, including but not limited to (1) the “Procedure for Measuring the Velocity Ratio of a Club Head for Conformance to Rule 4-1(e), Appendix II (Rev. 2, 1999)”; and (2) the Pendulum Test.
5. All documents relating to work performed by outside experts or consultants (e.g., Barrie S.H. Royce or David M. Parks) for the USGA relating to any test or method for measuring compliance with Rule 4-1e, Appendix II of the USGA Rules of Golf, including but not limited to (I) the “Procedure for Measuring the Velocity Ratio of a Club Head for Conformance to Rule 4¬1(e), Appendix II (Rev. 2, 1999)”; and (2) the Pendulum Test.
6. All communications between the USGA and the Royal & Ancient relating to (I) thin-faced clubs, (2) the “spring like” effect of clubs, (3) the coefficient of restitution of club heads or club head striking plates, and/or (4) the frequency of club heads or club head striking plates.
7. All non-confidential communications between the USGA and Callaway regarding (1) thin-faced clubs, (2) the “spring like” effect of clubs, (3) the coefficient of restitution of club heads or club head striking plates, and/or (4) the frequency of club heads or club head striking plates.
8. For each club provided to or acquired by the USGA in a non-confidential manner, and which the USGA either acquired prior to March 14, 2000 or was from a product line first sold to the public prior to March 14, 2000, all documents and clubs that were tested to determine if the club conformed with Rule 4-1e, Appendix II of the USGA Rules of Golf
9. All n
on-confidential lists that contain or describe golf clubs that the USGA has determined do not conform with Rule 4-1e, Appendix Il of the USGA Rules of Golf.
I don’t know if the USGA has been in this position before, although I suspect that they have. If not, I hope they handle this issue very carefully or every golf equipment patent infringement lawsuit will include a subpoena to the USGA for every test performed by the USGA, and all data gathered, since the beginning of time. Further, if the USGA turned over all the information requested above they would essentially be giving Acushnet and Callaway leads as to which other club makers may be infringing their patents.
From a golfer’s perspective, this subpoena makes me
mad… after all, why should my USGA membership dollars be wasted
helping any golf equipment manufacturer’s legal actions! From a
lawyer’s perspective, I can appreciate that the USGA has a treasure trove of
information that any equipment company would love to get their hands on.
A cynic could take this further and say… “why should a manufacturer spend millions on an R&D department gathering critical performance data on every club ever made… just orchestrate a lawsuit every few years so you can subpoena the USGA and see what type of information they have gathered.”
Unfortunately for the USGA, I suspect that they will end up flushing tens of thousands of dollars down the drain just formulating a plan and responding to the subpoena. It will take a lot of $15 memberships to offset the costs associated with this one subpoena!
David Dawsey – Monitoring Golf Club Litigation
