With the trial approaching and the judge appearing sympathetic to Bridgestone’s case, Acushnet settled last fall for a substantial sum in back-license fees plus future royalties on sales of the ProV1 line of balls.

The plaintiffs aren’t necessarily large companies. In 2004 Jack Gillig, a Texas entrepreneur, sued Nike Golf, claiming that he had shared ideas scribbled out on paper with Nike’s chief club designer, Tom Stites. Gillig alleged that Stites incorporated those ideas into Nike’s CPR woods and Slingshot irons without permission. After several twists and turns, an appellate judge dismissed the case.
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Sometimes, the legal antics rival the drama found at Augusta National on Sunday. In the late ’90s Orlimar, the upstart behind the successful TriMetal line of woods, began tweaking the industry giants, especially Callaway, in print ads, by stating that “oversize is overrated” and “titanium is obsolete.” Callaway responded by suing Orlimar for infringing on its iron patents, as well as for false advertising. TaylorMade piled on, claiming that the airtight packaging that Orlimar used for its balls violated TaylorMade’s patents.

All the parties settled, but the litigation cost Orlimar money and momentum. The company filed for bankruptcy in 2003.

In 2006 Callaway sued Acushnet, arguing that the ball giant had infringed on four patents acquired by Callaway in its purchase of Top-Flite. Its lawyers lobbied the judge to call Callaway spokesman Phil Mickelson as a rebuttal witness, reasoning that he had information regarding the development and commercialization of the Pro V1 in 2000, when Mickelson was a Titleist endorser. (Mickelson signed with Callaway in 2004.) The lawyers claimed Mickelson would rebut testimony by Titleist’s director of sales and marketing Gerald Bellis, who said that he didn’t know details about Mickelson’s threat to terminate his Titleist contract unless it developed a ball to compete with Callaway’s Rule 35. After Callaway won a partial victory in December, Acushnet requested post-trial relief, asking for either a new trial or that the verdict be thrown out.

In the aforementioned Bridgestone v. Acushnet (the industry leader makes an inviting target), the plaintiff contended that it had pioneered some of the characteristics of the new three-piece balls. Acushnet countered that Bridgestone was giving itself too much credit, asserting instead that the popularity of three-piece balls didn’t really grow until Tiger Woods began playing Nike’s ball.

Bridgestone’s attorneys then disclosed that it was their company that actually produced Nike’s balls.(Bridgestone continues to manufacture balls for Nike in its factory, using Nike’s patents and designs.)
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This flurry of legal wrangling isn’t new. Patent disputes have been a part of the game practically from when the first craftsmen started carving clubs out of hickory. Jeff Ellis, a noted club collector who wrote The Clubmaker’s Art, the definitive book on the history of golf equipment, says he has documented the first patent on golf equipment back to June 29, 1876, when Thomas Johnston of Edinburgh, Scotland, received a patent for a clubhead made from a very hard rubber substance, which Johnston called “vulcanite.”

Procuring a patent in those days was fairly easy. Most European patent offices handed out licenses without even researching whether a similar invention already had been claimed. In fact, during the late 19th century, when clubmakers in the United Kingdom were starting to meet the demand for the growing game, the patent process was a lot easier than playing the game itself.

“You just turned in your drawings, wrote your check and you were handed a patent,” Ellis notes. Many clubmakers simply filed an application, got a provisional number from the patent office, then engraved the number on each club.

“They would pretend they had patents when they didn’t,” says Ellis. “They figured that none of the other equipment companies would know that they hadn’t paid what it cost to complete the whole process. Even then, they realized the marketing value of having a patent on a club design.”

It wasn’t long before the legal wrangling crossed the Atlantic along with the equipment. In 1899 Coburn Haskell, an avid golfer from Ohio who was the shortest hitter in his foursome, visited playing partner Bertram Work, who managed a B.F. Goodrich Company plant in Akron, and saw a machine that could wind rubber strands into a ball. Haskell convinced Work to help him make a rubberized wound ball that he believed would fly farther than the featheries and gutta perchas that were still the norm.

Golfers loved the 25 extra yards they gained with Haskell’s wound ball, and rivals raced to match his design. Haskell sued all the copycats, but lost when a competitor solicited the testimony of Duncan Stewart of St. Andrews, Scotland, who held the first ball patent in the U.K. and was able to prove his own previous efforts at making wound balls. Still, the Haskell ball helped popularize the game in the U.S. and made its inventor very rich.
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Disputes over patents still lie at the core of most equipment lawsuits, and one of the reasons for the recent increase in litigation is the inability of the government’s patent office to respond to the crush of applications. The U.S. Patent and Trademark Office employs 5,500 examiners, mostly young engineering graduates putting in a few years before law school, to handle the applications—599,595 in 2007 alone. Many of those applications only receive cursory reviews.

The general counsel for a large manufacturer who asked not to be identified says that each examiner is allowed on average just 20 hours to make a ruling on an application. Due to the lack of thorough examination, many issued patents are invalid, giving rise to litigation.

Rather than leave it up to the government, many companies police themselves and each other. Clay Long, chief product designer for Nicklaus Golf, spent a stint at Acushnet where, “30 percent of my time would be spent developing products and another 35 percent was spent looking at existing intellectual property to make sure we didn’t inadvertently copy something else.

“Then we’d turn it over to the attorneys and they’d do their own search before giving us clearance. When you’re making 200,000 drivers, your risk is a lot greater.”

The other area of focus is counterintelligence. At Bridgestone, scientists regularly cut open balls introduced by competitors—both to study the design and to make sure others aren’t lifting Bridgestone’s technology. “Competitive testing is a pretty normal part of the R&D process now,” says Dan Murphy, director of marketing for Bridgestone.

Should they find an irregularity, Bridgestone tries to handle it privately; if it can’t, it’s off to the courtroom. While the golf business was once a clubby affair populated by benevolent executives who were inclined to resolve disputes amicably—and privately—today’s industry is dominated by publicly held companies who now speak of their “fiduciary duties” to “maximize shareholder value.”

In addition, with the golf business no longer growing the way it did in the 1990s, the only way for a CEO to keep shareholders happy is to get his fork into a competitor’s slice of the pie.

“It’s not happenstance that there are more lawsuits,” says Leigh Bader, owner of 3balls.com and one of the leading golf retailers in the country. “There’s more skin in the game and the stakes are higher now for a lot of these executives.”

That pressure trickles down to every department, including legal, to add to the bottom line. “There’s more emphasis at companies on getting revenue out of patent portfolios,” says David Dawsey, a patent lawyer from Columbus, Ohio, who authors the blog Golf-Patents.com. “A lot of companies now view their patent departments more as profit centers than as overhead.”

As a result, the number of patents has exploded—there are now more than 2,000 active ball patents and more than 500 club patents. While that increase is partly due to technological advances, insiders also attribute the rise to a push by companies to file for patents on every new design wrinkle, whether it’s warranted or not.
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In addition to fearing litigation by other companies, many manufacturers also have become sensitive to the risks of lawsuits by individuals like Nike suer Gillig claiming that the company’s products are based on their drawings, however sketchy or rudimentary. TaylorMade refuses to accept any unsolicited club or ball designs—virtually every idea that comes in is automatically shipped right back before a designer can lay eyes on it, according to Bill Reimus, TaylorMade’s general counsel. Otherwise, he says, “proving a negative—that we didn’t use the design—could be very difficult.”

In such cases, some companies have decided the best defense is to prove that the patent in question isn’t original. That’s where they often call on club collector
Ellis, who serves as an expert witness by helping defendants prove that a certain design feature had been around for decades, if not centuries.

Ellis recalls one recent case in which an entrepreneur claimed he had developed and patented a rear-weighted putter and sued an equipment giant for infringing on his idea. Ellis showed up at trial with more than 140 clubs, including a rare Andrew Dixon putter from the 1600s, all of which incorporated some or all of the design elements the plaintiff claimed he had invented. In the end, Ellis recalls, the plaintiff agreed to settle the suit for just one percent of the damages he was seeking, or just enough to cover his legal bills.

“He didn’t create anything new in any respect,” says Ellis. “There’s little that’s new, but most golfers don’t realize that.”