The Verdict: Callaway Golf v. Acushnet Golf Ball Patent Infringement Litigation
After 7 days of trial the verdict is in and the jury has ruled that 8 out of 9 of Callaway’s patent claims are valid!
Acushnet already stipulated that it did infringe the claims of the patents; therefore the issue for the jury was whether or not the claims are valid. Unfortunately for Acushnet, patents are presumed valid and the burden of proof required to establish invalidity is high. In fact, the jury was instructed that Acushnet has the burden of proving that each one of the asserted claims of the patents-in-suit is invalid by “clear and convincing evidence.” Clear and convincing evidence is evidence that produces an abiding conviction that the truth of a fact is highly probably. Click HERE to review the instructions that were read to the jury.
Click HERE to review the actual jury verdict sheet. However, I have reproduced each claim at issue below, along with the question posed to the jury as well as the jury’s response. Enjoy.
PATENT 1:
Has Acushnet proven, by clear and convincing evidence, that any of the following claims of USPN 6210293 titled “Multi-Layer Golf Ball” (the ‘293 patent) is invalid due to obviousness? “Yes” is a finding for Acushnet. “No” is a finding for Callaway.
Claim 1
Claim 4
Claim 5
PATENT 2:
Has Acushnet proven, by clear and convincing evidence, that any of the following claims of USPN 6503156 titled “Golf Ball Having Multi-Layer Cover With Unique Outer Cover Characteristics” (the ‘156 patent) is invalid due to obviousness? “Yes” is a finding for Acushnet. “No” is a finding for Callaway.
Claim 1
Claim 2
Claim 3
PATENT 3:
Has Acushnet proven, by clear and convincing evidence, that any of the following claims of USPN 6506130 titled “Multi Layer Golf Ball” (the ‘130 patent) is invalid due to obviousness? “Yes” is a finding for Acushnet. “No” is a finding for Callaway.
Claim 5
Has Acushnet proven, by clear and convincing evidence, that any of the following claims of USPN 6595873 titled “Multi-Layer Golf Ball” (the ‘873 patent) is invalid due to obviousness? “Yes” is a finding for Acushnet. “No” is a finding for Callaway.
Claim 1
Claim 3
A Callaway spokeswoman said… "We have now established in court that our golf ball patents are valid, and that Titleist Pro V1 golf balls infringe those patents. We will immediately start the process of requesting an appropriate remedy, including injunctive relief and damages." Ouch! The amount of money at risk is beyond comprehension; which means that Acushnet will either settle this quietly or fight it every way possible. I suspect the later.
This isn’t over by a long shot, so keep checking back for updates.
David Dawsey – The IP Golf Guy
PS – Other posts regarding this lawsuit include:
a) General post here
b) Post re Mickelson subpoena here
c) Post re Greg Norman subpoena here
d) Post re jury selection process here
e) Post re proposed jury instructions here
f) Post re proposed verdict form here
g) Post re USPTO reexamination of one patent here
h) Post re rulings on Motions for Summary Judgment here
i) Post re Mickelson’s potential rebuttal testimony here
Acushnet already stipulated that it did infringe the claims of the patents; therefore the issue for the jury was whether or not the claims are valid. Unfortunately for Acushnet, patents are presumed valid and the burden of proof required to establish invalidity is high. In fact, the jury was instructed that Acushnet has the burden of proving that each one of the asserted claims of the patents-in-suit is invalid by “clear and convincing evidence.” Clear and convincing evidence is evidence that produces an abiding conviction that the truth of a fact is highly probably. Click HERE to review the instructions that were read to the jury.
Click HERE to review the actual jury verdict sheet. However, I have reproduced each claim at issue below, along with the question posed to the jury as well as the jury’s response. Enjoy.
PATENT 1:
Has Acushnet proven, by clear and convincing evidence, that any of the following claims of USPN 6210293 titled “Multi-Layer Golf Ball” (the ‘293 patent) is invalid due to obviousness? “Yes” is a finding for Acushnet. “No” is a finding for Callaway.
Claim 1
1. A golf ball comprising:
a core;
an inner cover layer having a Shore D hardness of 60 or more molded on said core, said inner cover layer having a thickness of 0.100 to 0.010 inches, said inner cover layer comprising a blend of two or more low acid ionomer resins containing no more than 16% by weight of an alpha, beta-unsaturated carboxylic acid; and
an outer cover layer having a Shore D hardness of 64 or less molded on said inner cover layer, said outer cover layer having a thickness of 0.010 to 0.070 inches, and said outer cover layer comprising a relatively soft polyurethane material.
Jury Answer for Claim 1 - NO (thus, claim 1 of Callaway’s patent is valid)
a core;
an inner cover layer having a Shore D hardness of 60 or more molded on said core, said inner cover layer having a thickness of 0.100 to 0.010 inches, said inner cover layer comprising a blend of two or more low acid ionomer resins containing no more than 16% by weight of an alpha, beta-unsaturated carboxylic acid; and
an outer cover layer having a Shore D hardness of 64 or less molded on said inner cover layer, said outer cover layer having a thickness of 0.010 to 0.070 inches, and said outer cover layer comprising a relatively soft polyurethane material.
Jury Answer for Claim 1 - NO (thus, claim 1 of Callaway’s patent is valid)
Claim 4
4. A multi-layer golf ball comprising:
a spherical core;
an inner cover layer having Shore D hardness of about 60 or more molded over said spherical core, said inner cover layer comprising an ionomeric resin including no more than 16% by weight of an alpha, beta-unsaturated carboxylic acid and having a modulus of from about 15,000 to about 70,000 psi; and
an outer cover layer having a Shore D hardness of about 64 or less disposed about said inner cover layer and defining a plurality of dimples to form a multi-layer golf ball, said outer cover layer comprising polyurethane based material.
Jury Answer for Claim 4 - NO (thus, claim 4 of Callaway’s patent is valid)
a spherical core;
an inner cover layer having Shore D hardness of about 60 or more molded over said spherical core, said inner cover layer comprising an ionomeric resin including no more than 16% by weight of an alpha, beta-unsaturated carboxylic acid and having a modulus of from about 15,000 to about 70,000 psi; and
an outer cover layer having a Shore D hardness of about 64 or less disposed about said inner cover layer and defining a plurality of dimples to form a multi-layer golf ball, said outer cover layer comprising polyurethane based material.
Jury Answer for Claim 4 - NO (thus, claim 4 of Callaway’s patent is valid)
Claim 5
5. A golf ball according to claim 4, wherein said inner cover layer has a thickness of about 0.100 to about 0.010 inches and said outer cover layer has a thickness of about 0.010 to about 0.070 inches, said golf ball having an overall diameter of 1.680 inches or more.
Jury Answer for Claim 5 - YES (thus, claim 5 of Callaway’s patent is NOT valid)
Jury Answer for Claim 5 - YES (thus, claim 5 of Callaway’s patent is NOT valid)
PATENT 2:
Has Acushnet proven, by clear and convincing evidence, that any of the following claims of USPN 6503156 titled “Golf Ball Having Multi-Layer Cover With Unique Outer Cover Characteristics” (the ‘156 patent) is invalid due to obviousness? “Yes” is a finding for Acushnet. “No” is a finding for Callaway.
Claim 1
1. A golf ball comprising: a core; an inner cover layer disposed on said core, said inner cover layer having a Shore D hardness of at least 60, said inner cover layer comprising a blend of two or more low acid ionomer resins, each containing no more than 16% by weight of an alpha, beta-unsaturated carboxylic acid; and an outer cover layer disposed on said inner cover layer, said outer cover layer having a Shore D hardness of about 64 or less, a thickness of from about 0.01 to about 0.07 inches, and comprising a polyurethane material.
Jury Answer for Claim 1 - NO (thus, claim 1 of Callaway’s patent is valid)
Jury Answer for Claim 1 - NO (thus, claim 1 of Callaway’s patent is valid)
Claim 2
2. The golf ball of claim 1 wherein said outer cover layer has a thickness of from about 0.01 to about 0.05 inches.
Jury Answer for Claim 2 - NO (thus, claim 2 of Callaway’s patent is valid)
Jury Answer for Claim 2 - NO (thus, claim 2 of Callaway’s patent is valid)
Claim 3
3. The golf ball of claim 1 wherein said outer cover layer has a thickness of from about 0.03 to about 0.06 inches.
Jury Answer for Claim 3 - NO (thus, claim 3 of Callaway’s patent is valid)
Jury Answer for Claim 3 - NO (thus, claim 3 of Callaway’s patent is valid)
PATENT 3:
Has Acushnet proven, by clear and convincing evidence, that any of the following claims of USPN 6506130 titled “Multi Layer Golf Ball” (the ‘130 patent) is invalid due to obviousness? “Yes” is a finding for Acushnet. “No” is a finding for Callaway.
Claim 5
5. A multi-layer golf ball comprising: a spherical core; an inner cover layer having a Shore D hardness of about 60 or more molded over said spherical core, said inner cover layer comprising an ionomeric resin including no more than 16% by weight of an alpha, beta-unsaturated carboxylic acid and having a modulus of from about 15,000 to about 70,000 psi; an outer cover layer having a Shore D hardness of about 64 or less molded over said spherical intermediate ball to form a multi-layer golf ball, the outer layer comprising polyurethane based material.
Jury Answer for Claim 5 - NO (thus, claim 5 of Callaway’s patent is valid)
PATENT 4:Jury Answer for Claim 5 - NO (thus, claim 5 of Callaway’s patent is valid)
Has Acushnet proven, by clear and convincing evidence, that any of the following claims of USPN 6595873 titled “Multi-Layer Golf Ball” (the ‘873 patent) is invalid due to obviousness? “Yes” is a finding for Acushnet. “No” is a finding for Callaway.
Claim 1
1. A golf ball comprising: a core; an inner cover layer disposed on said core, said inner cover layer having a thickness of from about 0.100 to about 0.010 inches, said inner cover layer comprising a blend of two or more ionomer resins, at least one of which contains no more than 16% by weight of an alpha, beta-unsaturated carboxylic acid; and an outer cover layer disposed on said inner cover layer, said outer cover layer having a thickness of 0.010 to 0.070 inches, and said outer cover layer comprising a polyurethane material, wherein said golf ball has an overall diameter of 1.680 inches or more, said inner cover layer having a Shore D hardness of at least 60, and said outer cover layer having a Shore D hardness of less than 64.
Jury Answer for Claim 1 - NO (thus, claim 1 of Callaway’s patent is valid)
Jury Answer for Claim 1 - NO (thus, claim 1 of Callaway’s patent is valid)
Claim 3
3. A multi-layer golf ball comprising: a spherical core; an inner cover layer having Shore D hardness of at least 60 disposed on said spherical core, said inner cover layer comprising an ionomeric resin including no more than 16% by weight of an alpha, beta-unsaturated carboxylic acid and having a modulus of from about 15,000 to about 70,000 psi; and an outer cover layer having a Shore D hardness of about 64 or less disposed about said inner cover layer and defining a plurality of dimples to form a multi-layer golf ball, said outer cover layer comprising a polyurethane based material and said outer cover layer having a thickness of from about 0.010 to about 0.070 inches.
Jury Answer for Claim 3 - NO (thus, claim 3 of Callaway’s patent is valid)
The jury found that 8 of the 9 claims at issue are valid… and therefore infringed by Acushnet. Interestingly, all four of the patents-in-suit are currently being re-examined by the USPTO, but the USPTO has only rendered an initial opinion on the claims of USPN 6506130. So, do you think the jury verdict and the USPTO initial opinion regarding the ‘130 patent agree? Of course not! The USPTO reexamination office action has rejected all of the claims of the ‘130 patent! How would you feel about this if you were Acushnet?Jury Answer for Claim 3 - NO (thus, claim 3 of Callaway’s patent is valid)
A Callaway spokeswoman said… "We have now established in court that our golf ball patents are valid, and that Titleist Pro V1 golf balls infringe those patents. We will immediately start the process of requesting an appropriate remedy, including injunctive relief and damages." Ouch! The amount of money at risk is beyond comprehension; which means that Acushnet will either settle this quietly or fight it every way possible. I suspect the later.
This isn’t over by a long shot, so keep checking back for updates.
David Dawsey – The IP Golf Guy
PS – Other posts regarding this lawsuit include:
a) General post here
b) Post re Mickelson subpoena here
c) Post re Greg Norman subpoena here
d) Post re jury selection process here
e) Post re proposed jury instructions here
f) Post re proposed verdict form here
g) Post re USPTO reexamination of one patent here
h) Post re rulings on Motions for Summary Judgment here
i) Post re Mickelson’s potential rebuttal testimony here
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