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March 30, 2010 1:42 PM

Howrey Bests Fish in Golf Ball Wars

Posted by Zach Lowe

After four years, the golf ball war between Titleist and Callaway may be nearing an end. Titleist's parent company (repped by Howrey) scored a major win Monday when a jury rejected Callaway's claim for $246 million in damages in a long-running patent dispute, according to the Recorder, an Am Law Daily sibling publication.

The dispute centered on what Titleist claims is the most popular golf ball among top players: the Pro V1, whose very existence was in jeopardy in 2008 after a judge issued an injunction barring Titleist's parent company, Acushnet Co., from selling the ball.

The injunction followed a 2007 jury verdict in federal court in Delaware that Callaway had valid patents on certain design elements of the Pro V1--a major win for Callaway and its counsel, Fish & Richardson.

But that 2007 decision left open some holes for Titleist's legal team, says Henry Bunsow, a partner Howrey brought into the case after the 2007 loss to help fellow partner Joseph Lavelle with the appeal. On appeal, Titleist was granted a new trial.

Given a second chance, the Howrey team focused on two arguments. First, they zeroed in on the notion that Callaway's patents on the golf ball technology were so obvious as to be invalid, Bunsow says.

Titleist admitted infringing on those patents but told jurors the infringement shouldn't matter, since the patents were so vague. (The patents focused on designs for the interior and exterior of golf balls that would make the balls travel farther without sacrificing control.)

Second, Howrey tried to make the case more relevant to jurors by bringing in evidence of Titleist's long history of innovation and spotlighting the personalities behind those innovations, Bunsow says. Much of that evidence was barred from the first trial, because the issues there were more limited in scope, Bunsow says. 

The strategy worked. Jurors deliberated for three hours before returning a verdict for Titleist and tossing out Callaway's claim for $246 million in damages. 

Thomas Halkowski and Frank Scherkenbach, the lead Fish partners on the case, declined to comment and referred us to Mike Rider, an in-house lawyer at Callaway. Rider did not immediately return a call seeking comment.

Callaway plans to file a motion asking the court to set aside the verdict, Bloomberg reports.

There's still another patent suit between the two companies pending in Delaware court. Because that case involves patents related to those at issue in the recent trial, Bunsow says he hopes the jury's verdict Monday discourages Callaway from pursuing that case. 

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