United States: Bob Parsons' Golf Equipment Startup PXG Tees Up Patent Infringement Suit Against Taylormade Three Days Before Major Product Release; TRO Motion No Gimme

The great Bobby Jones, himself a lawyer, once said that "Competitive golf is played mainly on a five-and-a-half-inch course ... the space between your ears." I don't know if Mr. Jones ever practiced patent law, but the competitive golf equipment game between Parsons Xtreme Golf ("PXG") and TaylorMade Golf is going to be played in federal district court. On Tuesday, September 12, 2017, PXG sued TaylorMade for patent infringement in the U.S. District Court for the District of Arizona just three days before TaylorMade is scheduled to release its new P790 irons. TaylorMade is one of the largest golf club manufacturers (and is in the process of being sold to private equity firm KPS Capital Partners). PXG is a high-end newcomer to the market, launched in 2015 by billionaire Bob Parsons of GoDaddy.com success. Parsons took to Twitter to announce the suit:

TaylorMade has been advertising its P790 irons before the product release as having "strategically placed internal metal-injection-molded (MIM) tungsten weighting," an "ultra-thin 1.75mm face thickness," and "SpeedFoam" injected into the hollow club cavity.

PXG says these are the characteristics that infringe on their patents embodied in PXG's 0311 irons, shown on PXG's website here:

PXG has cause to worry that TaylorMade could have copied its club technology. PXG charges a handsome $5,800 for a full custom-fitted set of clubs, even offering its Ultimate PXG Xperience, where $100,000 will get you a private jet to Scottsdale, four days of VIP treatment, and a meeting with Bob Parsons himself. TaylorMade, on the other hand, plans to sell its P790 iron sets for $1,299 at every Dick's Sporting Goods and authorized online retailer it can. Why pay PXG $5,800 for what TaylorMade will sell you for $1300? Patents, that's why. At least according to PXG.

PXG has filed a motion for a temporary restraining order ("TRO") and preliminary injunction, asking the court to order TaylorMade not to make or sell any P790 irons and to remove any P790 irons from third parties (i.e., the PGA Tour pros that would otherwise advertise the clubs by using them). On the TRO/preliminary injunction motion, PXG will have the burden to prove (1) a likelihood of success on the merits (that TaylorMade infringed PXG's patents); (2) that PXG will suffer irreparable harm in the absence of a TRO or injunction, harm that cannot be remedied through money damages if PXG later proves infringement; (3) that the harm to TaylorMade of the injunction is outweighed by the harm to PXG if TaylorMade is allowed to sell its clubs; and (4) that the public's interest is supported by enjoining TaylorMade from selling the P790.

Interestingly, the case was assigned to U.S. District Judge John Tuchi. Tuchi's Senate Judiciary Committee questionnaire reveals his engineering background, that he practiced patent and intellectual property law during a stint at a civil defense firm, and that he is or was a member of Arizona Country Club. In addition to being fair and impartial, Tuchi will likely understand the golf club technology and how it affects consumers. My guess is that this favors TaylorMade more than PXG on the TRO motion as Tuchi may see nuanced differences between PXG's clubs and the TaylorMade P790 and allow TaylorMade to sell the P790 irons while the parties conduct litigation in the normal course.

Judge Tuchi set the TRO hearing for this Friday, September 15, at 2:00 p.m. Phoenix local time. Each side has an hour to present its arguments.

I wonder how many P790s will sell before 4:00 p.m.

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