PXG sues Taylor Made

[cvhookem63]

Sounds like PXG brought in Tom Stites (of Ben Hogan and Nike Golf "The Oven" fame) to analyze their patent infringement claims. He analyzed the claims and sided with PXG.

 

Because Stites is an expert regarding patent law or infringement? Of course he's had some experience with both sides of that kind of law suit but I doubt he is an expert on either.

 

I believe they brought Stites in because he has a vast amount of experience designing golf clubs. They supposedly asked him to compare the two club designs and determine if TM did indeed infringe on the PXG patents.

 

Sounds like PXG brought in Tom Stites (of Ben Hogan and Nike Golf "The Oven" fame) to analyze their patent infringement claims. He analyzed the claims and sided with PXG.

 

I wonder how much PXG paid Tom for this "expert" analysis.

 

Handsomely I would assume. They definitely paid him.

[buckeyefl]

What!!!!! PXG wishes you were Taylormade's lawyer with these insane unwritten standards! The Rules are the Rules! Nothing in Rule 65 or any case explaining Rule 65 even infers that the opposing party must release all of its defenses to the merits of the plaintiff's case in order to overcome an application for TRO! And, if this was the case, then how do you explain the fact that Rule 65 provides that TROs can be granted ex parte!!!! It's apples and oranges bud!

 

There is a 100% chance that Taylormade's lawyers will respond to the motion, and 99% of the reason is because of the $30,000 in billables it'll require. Taylormade carries absolutely no burden, in any literally or legal sense of the word, to disprove PXG's application for TRO. Rule 12 and its standard are ENTIRELY inappropriate for consideration here.

 

Its a TRO and an injunction, not just a TRO. Does a 12(b) come before or after an injunction hearing? If it was just a TRO, you'd have a point. Again, if it was just a TRO request, you'd have a point. But it isn't.

 

lol, of course they arn't going to "release all of its defenses". They just need to explain why PXG isn't likely to prevail. You are analyzing it like a law school essay. Think it through tactically.

 

PXG has two options.

 

1. Not ask for a TRO or an injunction. Lawsuit stays the same. No burden on Taylormade to do anything. Case moves on.

 

2. Ask for a TRO and / or an injunction. Lawsuit stays the same. Taylormade has to refute the prime facie case made out in the petition. PXG gets some information, and loses. Case moves on.

 

Why in the world would PXG choose number 1?

 

EDIT

If you don't mind me asking, how long have you been a lawyer?

 

I've been a lawyer for about 10 years. 7 of which were as outside counsel focusing exclusively on patent litigation; now I'm in-house counsel for a large semiconductor company focusing on patent licensing and litigation management. You?

 

That's going to leave a mark.

[DannyNoonin]

Unfortunately, we all lose. These lawsuits drive the price of our equipment up. The only people that really get ahead in these things is the lawyers.

[dgp17]

What!!!!! PXG wishes you were Taylormade's lawyer with these insane unwritten standards! The Rules are the Rules! Nothing in Rule 65 or any case explaining Rule 65 even infers that the opposing party must release all of its defenses to the merits of the plaintiff's case in order to overcome an application for TRO! And, if this was the case, then how do you explain the fact that Rule 65 provides that TROs can be granted ex parte!!!! It's apples and oranges bud!

 

There is a 100% chance that Taylormade's lawyers will respond to the motion, and 99% of the reason is because of the $30,000 in billables it'll require. Taylormade carries absolutely no burden, in any literally or legal sense of the word, to disprove PXG's application for TRO. Rule 12 and its standard are ENTIRELY inappropriate for consideration here.

 

Its a TRO and an injunction, not just a TRO. Does a 12(b) come before or after an injunction hearing? If it was just a TRO, you'd have a point. Again, if it was just a TRO request, you'd have a point. But it isn't.

 

lol, of course they arn't going to "release all of its defenses". They just need to explain why PXG isn't likely to prevail. You are analyzing it like a law school essay. Think it through tactically.

 

PXG has two options.

 

1. Not ask for a TRO or an injunction. Lawsuit stays the same. No burden on Taylormade to do anything. Case moves on.

 

2. Ask for a TRO and / or an injunction. Lawsuit stays the same. Taylormade has to refute the prime facie case made out in the petition. PXG gets some information, and loses. Case moves on.

 

Why in the world would PXG choose number 1?

 

EDIT

If you don't mind me asking, how long have you been a lawyer?

 

I've been a lawyer for about 10 years. 7 of which were as outside counsel focusing exclusively on patent litigation; now I'm in-house counsel for a large semiconductor company focusing on patent licensing and litigation management. You?

 

Very applicable and impressive resume. I just started my fourth year. I work at a civil defense firm and practice almost exclusively in the area of complex commercial litigation-- in both state and federal courts. I unfortunately bill many hours reading these Rules and applying their standards. I have not been very productive today, though.

[Dpavs]

Sounds like PXG brought in Tom Stites (of Ben Hogan and Nike Golf "The Oven" fame) to analyze their patent infringement claims. He analyzed the claims and sided with PXG.

 

Because Stites is an expert regarding patent law or infringement? Of course he's had some experience with both sides of that kind of law suit but I doubt he is an expert on either.

 

I believe they brought Stites in because he has a vast amount of experience designing golf clubs. They supposedly asked him to compare the two club designs and determine if TM did indeed infringe on the PXG patents.

 

Which he is unqualified to do, because whether or not there is patent infringement is not a engineering or design question it is a legal question. All he could possibly answer is whether he feels that the designs are similar or not... he cannot possibly offer any valuable opinion as to whether the similarity would carry any necessary burden of proof in a legal proceeding. If he did he would be engaging in the unlawful practice of law.

 

What he could do of course is say something along the lines of "I think there is a great deal of similarity here and you should probably consult with an attorney to see if this is worth filing or not." Which of course is pretty pointless to pay anyone to do. It feels just another dog and pony shows at that point.

[the bishop]

EDIT

If you don't mind me asking, how long have you been a lawyer?

Danny Noonan: Well, I'm going to law school too.

Chuck Schick: [haughtily] Really... are you going to Harvard?

Danny Noonan: No, St. Copius of northern...

Chuck Schick: Where?

[cvhookem63]

Sounds like PXG brought in Tom Stites (of Ben Hogan and Nike Golf "The Oven" fame) to analyze their patent infringement claims. He analyzed the claims and sided with PXG.

 

Because Stites is an expert regarding patent law or infringement? Of course he's had some experience with both sides of that kind of law suit but I doubt he is an expert on either.

 

I believe they brought Stites in because he has a vast amount of experience designing golf clubs. They supposedly asked him to compare the two club designs and determine if TM did indeed infringe on the PXG patents.

 

Which he is unqualified to do, because whether or not there is patent infringement is not a engineering or design question it is a legal question. All he could possibly answer is whether he feels that the designs are similar or not... he cannot possibly offer any valuable opinion as to whether the similarity would carry any necessary burden of proof in a legal proceeding. If he did he would be engaging in the unlawful practice of law.

 

What he could do of course is say something along the lines of "I think there is a great deal of similarity here and you should probably consult with an attorney to see if this is worth filing or not." Which of course is pretty pointless to pay anyone to do. It feels just another dog and pony shows at that point.

 

The way that the TM irons were designed plays a decent role in if there are patent infringements or not, no? I don't disagree that this is a dog and pony show - just passing along the information that they brought in Stites in some consultant role and paid him for it. I don't think they brought him in to give a legal opinion.

[Jarlaxle]

It's like I said in other TM threads, private equity will be the death of TM. They come in rape and pillage the companies. The executives get rich, bankrupt the company and move on.

And how long have you worked in private equity? I've been in a similar business (hedge funds) for years and can tell you that your statement is pretty off the mark. Were there some PE firms that followed that playbook? Sure. But the vast majority are legitimate investors who are seeking to buy a quality asset, improve it substantially, and then eventually sell that asset for a profit. Here is the website for the firm trying to buy Taylor Made, sounds like a pretty good fit to me. Might be better to educate yourself rather than spouting off about raping and pillaging.

 

http://www.kpsfund.com/

[jdcadkin]

Sounds like PXG brought in Tom Stites (of Ben Hogan and Nike Golf "The Oven" fame) to analyze their patent infringement claims. He analyzed the claims and sided with PXG.

 

Because Stites is an expert regarding patent law or infringement? Of course he's had some experience with both sides of that kind of law suit but I doubt he is an expert on either.

 

I believe they brought Stites in because he has a vast amount of experience designing golf clubs. They supposedly asked him to compare the two club designs and determine if TM did indeed infringe on the PXG patents.

 

Which he is unqualified to do, because whether or not there is patent infringement is not a engineering or design question it is a legal question. All he could possibly answer is whether he feels that the designs are similar or not... he cannot possibly offer any valuable opinion as to whether the similarity would carry any necessary burden of proof in a legal proceeding. If he did he would be engaging in the unlawful practice of law.

 

What he could do of course is say something along the lines of "I think there is a great deal of similarity here and you should probably consult with an attorney to see if this is worth filing or not." Which of course is pretty pointless to pay anyone to do. It feels just another dog and pony shows at that point.

 

They presumably brought in Stites as a technical expert who, in the patent context, would be referred to as a "person of ordinary skill in the art" to offer merely his opinion as to how the patents should be interpreted based on his lengthy experience in the field. He did or will opine (I can't find an unsealed copy of his declaration showing exactly what he said) as to what various words in the patent means, how the claims should be interpreted, and whether there is infringement. This is not the practice of law; this is expert testimony. His opinion will, in part, form the evidentiary basis on which PXG's allegations rest. This is 100% normal and happens in 99.99% of patent litigation and is entirely permissible. Think about it this way: is a judge an expert on golf club design and technology? No. They need to hear from experts in the field to help inform their opinion.

 

Ultimately, the Judge will decide what the words of the patent mean. Stites or other experts will then apply those constructions to determine whether or not there is infringement.

[the bishop]

Sounds like PXG brought in Tom Stites (of Ben Hogan and Nike Golf "The Oven" fame) to analyze their patent infringement claims. He analyzed the claims and sided with PXG.

 

Because Stites is an expert regarding patent law or infringement? Of course he's had some experience with both sides of that kind of law suit but I doubt he is an expert on either.

 

I believe they brought Stites in because he has a vast amount of experience designing golf clubs. They supposedly asked him to compare the two club designs and determine if TM did indeed infringe on the PXG patents.

 

Which he is unqualified to do, because whether or not there is patent infringement is not a engineering or design question it is a legal question. All he could possibly answer is whether he feels that the designs are similar or not... he cannot possibly offer any valuable opinion as to whether the similarity would carry any necessary burden of proof in a legal proceeding. If he did he would be engaging in the unlawful practice of law.

 

What he could do of course is say something along the lines of "I think there is a great deal of similarity here and you should probably consult with an attorney to see if this is worth filing or not." Which of course is pretty pointless to pay anyone to do. It feels just another dog and pony shows at that point.

 

The way that the TM irons were designed plays a decent role in if there are patent infringements or not, no? I don't disagree that this is a dog and pony show - just passing along the information that they brought in Stites in some consultant role and paid him for it. I don't think they brought him in to give a legal opinion.

You mean the guy that designed this atrocity monstrosity

[rawdog]

It's like I said in other TM threads, private equity will be the death of TM. They come in rape and pillage the companies. The executives get rich, bankrupt the company and move on.

And how long have you worked in private equity? I've been in a similar business (hedge funds) for years and can tell you that your statement is pretty off the mark. Were there some PE firms that followed that playbook? Sure. But the vast majority are legitimate investors who are seeking to buy a quality asset, improve it substantially, and then eventually sell that asset for a profit. Here is the website for the firm trying to buy Taylor Made, sounds like a pretty good fit to me. Might be better to educate yourself rather than spouting off about raping and pillaging.

 

http://www.kpsfund.com/

 

Mitt Romney's campaign brought a lot of bad PR for PEs. Mostly undeserved, but it stuck.

 

In the words of the Cranberries... "Do you have to, do you have to, do you have to let it linger?"

[ebrasmus21]

You mean the guy that designed this atrocity monstrosity turd on a stick

 

Fixed a typo for you there, bishop.

[cvhookem63]

Sounds like PXG brought in Tom Stites (of Ben Hogan and Nike Golf "The Oven" fame) to analyze their patent infringement claims. He analyzed the claims and sided with PXG.

 

Because Stites is an expert regarding patent law or infringement? Of course he's had some experience with both sides of that kind of law suit but I doubt he is an expert on either.

 

I believe they brought Stites in because he has a vast amount of experience designing golf clubs. They supposedly asked him to compare the two club designs and determine if TM did indeed infringe on the PXG patents.

 

Which he is unqualified to do, because whether or not there is patent infringement is not a engineering or design question it is a legal question. All he could possibly answer is whether he feels that the designs are similar or not... he cannot possibly offer any valuable opinion as to whether the similarity would carry any necessary burden of proof in a legal proceeding. If he did he would be engaging in the unlawful practice of law.

 

What he could do of course is say something along the lines of "I think there is a great deal of similarity here and you should probably consult with an attorney to see if this is worth filing or not." Which of course is pretty pointless to pay anyone to do. It feels just another dog and pony shows at that point.

 

They presumably brought in Stites as a technical expert who, in the patent context, would be referred to as a "person of ordinary skill in the art" to offer merely his opinion as to how the patents should be interpreted based on his lengthy experience in the field. He did or will opine (I can't find an unsealed copy of his declaration showing exactly what he said) as to what various words in the patent means, how the claims should be interpreted, and whether there is infringement. This is not the practice of law; this is expert testimony. His opinion will, in part, form the evidentiary basis on which PXG's allegations rest. This is 100% normal and happens in 99.99% of patent litigation and is entirely permissible. Think about it this way: is a judge an expert on golf club design and technology? No. They need to hear from experts in the field to help inform their opinion.

 

Ultimately, the Judge will decide what the words of the patent mean. Stites or other experts will then apply those constructions to determine whether or not there is infringement.

 

Makes sense. I'm going to defer to those of you who actually know what you are talking about on this one.

[pinestreetgolf]

Looking at it from common sense laymans eyes pine streets point is the only one that makes sense. I was kidding before. But seriously. There has to be an angle for pxg asking for this injunction. And it can't logically be they think they will get it. They won't. . So it has to be for an alternate motive. And info sure sounds logical to me. They need to know what TM knows orhas done. Otherwise how can they know what to claim in court ? They have essentially filed a suit not really knowing if they have been tred upon. They just feel violated and want someone to slap TM. Now they need to figure out if they can talk anyone into doing it.

 

Unfortunately this isn't correct either. PXG attached as an exhibit to its complaint an expert report of the top guy at Nike golf, who analyzed both clubs and all patents and opined as to the infringement. There is an entire stage of a lawsuit devoted to fact finding; it is called Discovery. You don't file lawsuits based upon speculation and unknown acts unless you want to lose on a dispositive motion. You investigate, you form your theories of liability, and then you file before the SoL runs. You only get one chance to bring your case, and I can assure you that Bob Parson's didn't accumulate a $3 billion net worth by filing premature lawsuits.

What!!!!! PXG wishes you were Taylormade's lawyer with these insane unwritten standards! The Rules are the Rules! Nothing in Rule 65 or any case explaining Rule 65 even infers that the opposing party must release all of its defenses to the merits of the plaintiff's case in order to overcome an application for TRO! And, if this was the case, then how do you explain the fact that Rule 65 provides that TROs can be granted ex parte!!!! It's apples and oranges bud!

 

There is a 100% chance that Taylormade's lawyers will respond to the motion, and 99% of the reason is because of the $30,000 in billables it'll require. Taylormade carries absolutely no burden, in any literally or legal sense of the word, to disprove PXG's application for TRO. Rule 12 and its standard are ENTIRELY inappropriate for consideration here.

 

Its a TRO and an injunction, not just a TRO. Does a 12(b) come before or after an injunction hearing? If it was just a TRO, you'd have a point. Again, if it was just a TRO request, you'd have a point. But it isn't.

 

lol, of course they arn't going to "release all of its defenses". They just need to explain why PXG isn't likely to prevail. You are analyzing it like a law school essay. Think it through tactically.

 

PXG has two options.

 

1. Not ask for a TRO or an injunction. Lawsuit stays the same. No burden on Taylormade to do anything. Case moves on.

 

2. Ask for a TRO and / or an injunction. Lawsuit stays the same. Taylormade has to refute the prime facie case made out in the petition. PXG gets some information, and loses. Case moves on.

 

Why in the world would PXG choose number 1?

 

EDIT

If you don't mind me asking, how long have you been a lawyer?

 

I've been a lawyer for about 10 years. 7 of which were as outside counsel focusing exclusively on patent litigation; now I'm in-house counsel for a large semiconductor company focusing on patent licensing and litigation management. You?

 

Same, barred in 2007. Public defender for a year and a half to get jury trials, then firm focusing exclusively on litigation and now in-house counsel. I have zero patent background, but I have a lot of litigation experience.

 

I suppose reasonable minds can differ.

[pinestreetgolf]

Looking at it from common sense laymans eyes pine streets point is the only one that makes sense. I was kidding before. But seriously. There has to be an angle for pxg asking for this injunction. And it can't logically be they think they will get it. They won't. . So it has to be for an alternate motive. And info sure sounds logical to me. They need to know what TM knows orhas done. Otherwise how can they know what to claim in court ? They have essentially filed a suit not really knowing if they have been tred upon. They just feel violated and want someone to slap TM. Now they need to figure out if they can talk anyone into doing it.

 

Unfortunately this isn't correct either. PXG attached as an exhibit to its complaint an expert report of the top guy at Nike golf, who analyzed both clubs and all patents and opined as to the infringement. There is an entire stage of a lawsuit devoted to fact finding; it is called Discovery. You don't file lawsuits based upon speculation and unknown acts unless you want to lose on a dispositive motion. You investigate, you form your theories of liability, and then you file before the SoL runs. You only get one chance to bring your case, and I can assure you that Bob Parson's didn't accumulate a $3 billion net worth by filing premature lawsuits.

 

You didn't actually answer my question.

 

Option 1: PXG doesn't ask for injunction. Taylormade answers. PXG moves on to discovery.

 

Option 2: PXG does ask for injunction. Taylormade has to answer primie facie case with its own facts, revelaing some of their defense. PXG moves on to discovery.

 

Why would PXG choose option 1?

 

(Discovery is all well and good, but it also occurs far into the future, and settlement offers are continous and constant. Lawsuits arn't a continuum of knowledge - they take place over time. There is an advantage to knowing things early, which is why you fight injunction cases you will almost certainly lose. It has nothing to do with "Rule 65").

[mizuno player]

It's like I said in other TM threads, private equity will be the death of TM. They come in rape and pillage the companies. The executives get rich, bankrupt the company and move on.

 

Agree. I worked for a profitable small company. We were purchased by a PE and it went down hill fast. They bought a few more small companies and to show "fake" profits laid off over 50℅ of the employees. On paper it.lookwd.good but in reality... Not so much.

 

 

[pinestreetgolf]

Sounds like PXG brought in Tom Stites (of Ben Hogan and Nike Golf "The Oven" fame) to analyze their patent infringement claims. He analyzed the claims and sided with PXG.

 

Because Stites is an expert regarding patent law or infringement? Of course he's had some experience with both sides of that kind of law suit but I doubt he is an expert on either.

 

I believe they brought Stites in because he has a vast amount of experience designing golf clubs. They supposedly asked him to compare the two club designs and determine if TM did indeed infringe on the PXG patents.

 

Which he is unqualified to do, because whether or not there is patent infringement is not a engineering or design question it is a legal question. All he could possibly answer is whether he feels that the designs are similar or not... he cannot possibly offer any valuable opinion as to whether the similarity would carry any necessary burden of proof in a legal proceeding. If he did he would be engaging in the unlawful practice of law.

 

What he could do of course is say something along the lines of "I think there is a great deal of similarity here and you should probably consult with an attorney to see if this is worth filing or not." Which of course is pretty pointless to pay anyone to do. It feels just another dog and pony shows at that point.

 

They presumably brought in Stites as a technical expert who, in the patent context, would be referred to as a "person of ordinary skill in the art" to offer merely his opinion as to how the patents should be interpreted based on his lengthy experience in the field. He did or will opine (I can't find an unsealed copy of his declaration showing exactly what he said) as to what various words in the patent means, how the claims should be interpreted, and whether there is infringement. This is not the practice of law; this is expert testimony. His opinion will, in part, form the evidentiary basis on which PXG's allegations rest. This is 100% normal and happens in 99.99% of patent litigation and is entirely permissible. Think about it this way: is a judge an expert on golf club design and technology? No. They need to hear from experts in the field to help inform their opinion.

 

Ultimately, the Judge will decide what the words of the patent mean. Stites or other experts will then apply those constructions to determine whether or not there is infringement.

 

Can TM counterclaim to void the patent, like in trademark?

[umassgolfer]

Sorry if someone mentioned it already, but the "differences" in the TM vs PXG clubs, to my untrained eye, remind me of this gem:

[jpdx]

this is fascinating to read - even if it doesn't make a ton of sense to me. I'd love to hear the attorney's in the room also chat about the Acushnet vs Costco case on the ksig balls. lol

[dgp17]

Looking at it from common sense laymans eyes pine streets point is the only one that makes sense. I was kidding before. But seriously. There has to be an angle for pxg asking for this injunction. And it can't logically be they think they will get it. They won't. . So it has to be for an alternate motive. And info sure sounds logical to me. They need to know what TM knows orhas done. Otherwise how can they know what to claim in court ? They have essentially filed a suit not really knowing if they have been tred upon. They just feel violated and want someone to slap TM. Now they need to figure out if they can talk anyone into doing it.

 

Unfortunately this isn't correct either. PXG attached as an exhibit to its complaint an expert report of the top guy at Nike golf, who analyzed both clubs and all patents and opined as to the infringement. There is an entire stage of a lawsuit devoted to fact finding; it is called Discovery. You don't file lawsuits based upon speculation and unknown acts unless you want to lose on a dispositive motion. You investigate, you form your theories of liability, and then you file before the SoL runs. You only get one chance to bring your case, and I can assure you that Bob Parson's didn't accumulate a $3 billion net worth by filing premature lawsuits.

 

You didn't actually answer my question.

 

Option 1: PXG doesn't ask for injunction. Taylormade answers. PXG moves on to discovery.

 

Option 2: PXG does ask for injunction. Taylormade has to answer primie facie case with its own facts, revelaing some of their defense. PXG moves on to discovery.

 

Why would PXG choose option 1?

 

(Discovery is all well and good, but it also occurs far into the future, and settlement offers are continous and constant. Lawsuits arn't a continuum of knowledge - they take place over time. There is an advantage to knowing things early, which is why you fight injunction cases you will almost certainly lose. It has nothing to do with "Rule 65").

 

Your position now is entirely different than when we started this conversation! Now you're saying that Taylormade has to "answer" PXG's application for TRO, and this could reveal some of Taylormade's defenses. This is the first thing you've said that I agree with. Earlier, you were claiming that Taylormade bears the burden of proof and that all of PXG's allegations are presumed to be true, while then confusing Taylormade's role as a respondent to PXG's motion for TRO with Taylormade's role as a movant under Rule 12b. All of your earlier posts are completely incorrect, from either a practical or theoretical standpoint.

 

However, will Taylormade file a response to the motion for TRO? Yep. Will it state why it hasn't done anything wrong? Yep. Are they going to reveal anything PXG doesn't already know? Nope.

 

And by the way, Rule 65 turns your Rule 12/burden confusion on its head. If the respondent bears any sort of burden, or if they must respond to the TRO as you so vigorously stated, then why in the world does the Rule provide that TROs can be granted ex parte? Probably because the burden rests entirely on the movant. How you think Rule 65 isn't applicable is way by me here. PXG filed a complaint for patent infringement, which includes them seeking a remedy for injunctive relief. Under Rule 12, Taylormade has 21 days from the date of service to file its answer or Rule 12 motion to that complaint.

 

After it filed the complaint, PXG filed an entirely separate motion for TRO and preliminary injunction (which is what we are discussing here). Both of these pleadings were filed and served on September 12. Rule 65 is the entire basis for PXG getting in front of a judge within three days of service of its motion. Taylormade still has 18 days to file its answer to PXG's complaint. This emergency process is in no way intended to force Taylormade to reveal any of its hand--at all. Will they file a response--yes. Will it argue the standard set forth in Rule 65--I would hope so. Will Taylormade reveal any information not needed to ensure PXG loses the day? No.

 

This is not a fact-finding mission for PXG. If it's anything at all, it's a business decision in hopes to delay the release of the clubs till after the judge rules. I'm sure Taylormade will start shipping orders at midnight tonight, but if the for some reason the judge does grant that TRO, Taylormade is going to be in a bind. PXG stands to lose nothing here.

[jdcadkin]

Can TM counterclaim to void the patent, like in trademark?

 

Yes, TM will assert a defense of invalidity (and likely will also assert a declaratory judgment counterclaim for the same so that TM will have a small piece of leverage). TM also likely will counterclaim against PXG for infringement of TM patents, too.

 

EDIT: I bet TM also files a request or requests for inter partes review of all patents. This is an administrative procedure before the U.S. Patent and Trademark Office that asks that they take another look at the patents to see if they should have granted the patent in the first instance. Upside is if the USPTO grants the IPR request, that is a basis for TM to ask the Judge to stay the litigation pending a decision by the UTPTO. The TRO/PI is typical Parsons bluster, but this could turn into a huge time and financial resources drain rather quickly.

[Dpavs]

Sounds like PXG brought in Tom Stites (of Ben Hogan and Nike Golf "The Oven" fame) to analyze their patent infringement claims. He analyzed the claims and sided with PXG.

 

Because Stites is an expert regarding patent law or infringement? Of course he's had some experience with both sides of that kind of law suit but I doubt he is an expert on either.

 

I believe they brought Stites in because he has a vast amount of experience designing golf clubs. They supposedly asked him to compare the two club designs and determine if TM did indeed infringe on the PXG patents.

 

Which he is unqualified to do, because whether or not there is patent infringement is not a engineering or design question it is a legal question. All he could possibly answer is whether he feels that the designs are similar or not... he cannot possibly offer any valuable opinion as to whether the similarity would carry any necessary burden of proof in a legal proceeding. If he did he would be engaging in the unlawful practice of law.

 

What he could do of course is say something along the lines of "I think there is a great deal of similarity here and you should probably consult with an attorney to see if this is worth filing or not." Which of course is pretty pointless to pay anyone to do. It feels just another dog and pony shows at that point.

 

The way that the TM irons were designed plays a decent role in if there are patent infringements or not, no? I don't disagree that this is a dog and pony show - just passing along the information that they brought in Stites in some consultant role and paid him for it. I don't think they brought him in to give a legal opinion.

 

Right, right. But I am sure they are trying to win public opinion by making it known they consulted with him.. imho it's just more smoke and mirrors, watch this hand and forget about what this one is doing stuff.

[pinestreetgolf]

Looking at it from common sense laymans eyes pine streets point is the only one that makes sense. I was kidding before. But seriously. There has to be an angle for pxg asking for this injunction. And it can't logically be they think they will get it. They won't. . So it has to be for an alternate motive. And info sure sounds logical to me. They need to know what TM knows orhas done. Otherwise how can they know what to claim in court ? They have essentially filed a suit not really knowing if they have been tred upon. They just feel violated and want someone to slap TM. Now they need to figure out if they can talk anyone into doing it.

 

Unfortunately this isn't correct either. PXG attached as an exhibit to its complaint an expert report of the top guy at Nike golf, who analyzed both clubs and all patents and opined as to the infringement. There is an entire stage of a lawsuit devoted to fact finding; it is called Discovery. You don't file lawsuits based upon speculation and unknown acts unless you want to lose on a dispositive motion. You investigate, you form your theories of liability, and then you file before the SoL runs. You only get one chance to bring your case, and I can assure you that Bob Parson's didn't accumulate a $3 billion net worth by filing premature lawsuits.

 

You didn't actually answer my question.

 

Option 1: PXG doesn't ask for injunction. Taylormade answers. PXG moves on to discovery.

 

Option 2: PXG does ask for injunction. Taylormade has to answer primie facie case with its own facts, revelaing some of their defense. PXG moves on to discovery.

 

Why would PXG choose option 1?

 

(Discovery is all well and good, but it also occurs far into the future, and settlement offers are continous and constant. Lawsuits arn't a continuum of knowledge - they take place over time. There is an advantage to knowing things early, which is why you fight injunction cases you will almost certainly lose. It has nothing to do with "Rule 65").

 

Your position now is entirely different than when we started this conversation! Now you're saying that Taylormade has to "answer" PXG's application for TRO, and this could reveal some of Taylormade's defenses. This is the first thing you've said that I agree with. Earlier, you were claiming that Taylormade bears the burden of proof and that all of PXG's allegations are presumed to be true, while then confusing Taylormade's role as a respondent to PXG's motion for TRO with Taylormade's role as a movant under Rule 12b. All of your earlier posts are completely incorrect, from either a practical or theoretical standpoint.

 

However, will Taylormade file a response to the motion for TRO? Yep. Will it state why it hasn't done anything wrong? Yep. Are they going to reveal anything PXG doesn't already know? Nope.

 

And by the way, Rule 65 turns your Rule 12/burden confusion on its head. If the respondent bears any sort of burden, or if they must respond to the TRO as you so vigorously stated, then why in the world does the Rule provide that TROs can be granted ex parte? Probably because the burden rests entirely on the movant. How you think Rule 65 isn't applicable is way by me here. PXG filed a complaint for patent infringement, which includes them seeking a remedy for injunctive relief. Under Rule 12, Taylormade has 21 days from the date of service to file its answer or Rule 12 motion to that complaint.

 

After it filed the complaint, PXG filed an entirely separate motion for TRO and preliminary injunction (which is what we are discussing here). Both of these pleadings were filed and served on September 12. Rule 65 is the entire basis for PXG getting in front of a judge within three days of service of its motion. Taylormade still has 18 days to file its answer to PXG's complaint. This emergency process is in no way intended to force Taylormade to reveal any of its hand--at all. Will they file a response--yes. Will it argue the standard set forth in Rule 65--I would hope so. Will Taylormade reveal any information not needed to ensure PXG loses the day? No.

 

This is not a fact-finding mission for PXG. If it's anything at all, it's a business decision in hopes to delay the release of the clubs till after the judge rules. I'm sure Taylormade will start shipping orders at midnight tonight, but if the for some reason the judge does grant that TRO, Taylormade is going to be in a bind. PXG stands to lose nothing here.

 

Good lord. This is incredibly simple. You just reposted your post from five pages ago with more words. Yes, PXG technically bears the burden. In the real world, though, TM does, because once PXG makes out a prima facie case TM has to say something. So, in a law textbook, your right. On planet earth in an actual courtroom, TM has to respond. OBVIOUSLY I don't mean TM *literally* has the burden of proof. Your post is like someone saying "it'll take forever to get there" and someone else saying "Well, actually, there is no such thing as forever.... *5 pages of nonsense*".

 

I'll highlight the important part of this goobledegook:

 

"Will Taylormade reveal any information not needed to ensure PXG loses the day? No. "

 

But TM *will* reveal some information.

[jdcadkin]

Looking at it from common sense laymans eyes pine streets point is the only one that makes sense. I was kidding before. But seriously. There has to be an angle for pxg asking for this injunction. And it can't logically be they think they will get it. They won't. . So it has to be for an alternate motive. And info sure sounds logical to me. They need to know what TM knows orhas done. Otherwise how can they know what to claim in court ? They have essentially filed a suit not really knowing if they have been tred upon. They just feel violated and want someone to slap TM. Now they need to figure out if they can talk anyone into doing it.

 

Unfortunately this isn't correct either. PXG attached as an exhibit to its complaint an expert report of the top guy at Nike golf, who analyzed both clubs and all patents and opined as to the infringement. There is an entire stage of a lawsuit devoted to fact finding; it is called Discovery. You don't file lawsuits based upon speculation and unknown acts unless you want to lose on a dispositive motion. You investigate, you form your theories of liability, and then you file before the SoL runs. You only get one chance to bring your case, and I can assure you that Bob Parson's didn't accumulate a $3 billion net worth by filing premature lawsuits.

 

You didn't actually answer my question.

 

Option 1: PXG doesn't ask for injunction. Taylormade answers. PXG moves on to discovery.

 

Option 2: PXG does ask for injunction. Taylormade has to answer primie facie case with its own facts, revelaing some of their defense. PXG moves on to discovery.

 

Why would PXG choose option 1?

 

(Discovery is all well and good, but it also occurs far into the future, and settlement offers are continous and constant. Lawsuits arn't a continuum of knowledge - they take place over time. There is an advantage to knowing things early, which is why you fight injunction cases you will almost certainly lose. It has nothing to do with "Rule 65").

 

Your position now is entirely different than when we started this conversation! Now you're saying that Taylormade has to "answer" PXG's application for TRO, and this could reveal some of Taylormade's defenses. This is the first thing you've said that I agree with. Earlier, you were claiming that Taylormade bears the burden of proof and that all of PXG's allegations are presumed to be true, while then confusing Taylormade's role as a respondent to PXG's motion for TRO with Taylormade's role as a movant under Rule 12b. All of your earlier posts are completely incorrect, from either a practical or theoretical standpoint.

 

However, will Taylormade file a response to the motion for TRO? Yep. Will it state why it hasn't done anything wrong? Yep. Are they going to reveal anything PXG doesn't already know? Nope.

 

And by the way, Rule 65 turns your Rule 12/burden confusion on its head. If the respondent bears any sort of burden, or if they must respond to the TRO as you so vigorously stated, then why in the world does the Rule provide that TROs can be granted ex parte? Probably because the burden rests entirely on the movant. How you think Rule 65 isn't applicable is way by me here. PXG filed a complaint for patent infringement, which includes them seeking a remedy for injunctive relief. Under Rule 12, Taylormade has 21 days from the date of service to file its answer or Rule 12 motion to that complaint.

 

After it filed the complaint, PXG filed an entirely separate motion for TRO and preliminary injunction (which is what we are discussing here). Both of these pleadings were filed and served on September 12. Rule 65 is the entire basis for PXG getting in front of a judge within three days of service of its motion. Taylormade still has 18 days to file its answer to PXG's complaint. This emergency process is in no way intended to force Taylormade to reveal any of its hand--at all. Will they file a response--yes. Will it argue the standard set forth in Rule 65--I would hope so. Will Taylormade reveal any information not needed to ensure PXG loses the day? No.

 

This is not a fact-finding mission for PXG. If it's anything at all, it's a business decision in hopes to delay the release of the clubs till after the judge rules. I'm sure Taylormade will start shipping orders at midnight tonight, but if the for some reason the judge does grant that TRO, Taylormade is going to be in a bind. PXG stands to lose nothing here.

 

Good lord. This is incredibly simple. I'll highlight the important part of this goobledegook:

 

"Will Taylormade reveal any information not needed to ensure PXG loses the day? No. "

 

But TM *will* reveal some information.

 

I really think you're overstating just what TM will have to "reveal" or state to defeat the TRO. The TRO/PI is just bluster and optics. Whatever is "learned" will be minimal. Other than optics, the more likely reason why this is happening is to bolster their position later on in the case that reasonably royalty damages will be insufficient and they want a permanent injunction to issue instead. I don't think the law really sways that way anymore, but people like to do it because they think it sounds better.

[505]

In my mind, "making irons with foam "goo" inside" is one thing. Holding patents on "making irons with foam "goo" inside" is quite a different position to be in.

 

Uhm, actually, making something long before the patent was issued to somebody else is actually a pretty big deal. Parsons is going to lose these patents over this.

 

...you can share all the old tech you like- if PXG has the patent then it doesn't matter what you have done in the past.

 

I'm guessing neither one of you are familiar with "prior art"? These patents are all so broad and ridiculous that I am amazed they were ever granted in the first place.

 

-------------

 

Let's all take a closer look at the ones that are specifically listed in the lawsuit:

 

 

'336 - A weight port on the toe at or below the midplane. WOW! Obviously deserving of a patent since nobody else has EVER put a weight port on a golf club towards the bottom/toe.

 

'143 - TWO weight ports, with one weighing LESS than the other. Revolutionary Bob, how did you ever come up with that one?

 

'938 - Face thickness less than 1.5mm. Really? I mean they truly granted this crap? BRB guys... I'm gonna go apply for a patent on a rocket that goes to the moon.

 

'203 - Toe, top, sole, front, and back... multi piece construction. Done before, and this is getting repetitive.

 

'727 - Weight ports again, this time worded exactly the same as 143, but there might be MORE sole weights!

 

'201 - Basically now just combining all of the above into one and padding out the ol' patent portfolio. "We have 128 patents!... nevermind the fact that it's really just like 4 ideas reworded 32 different ways, and the original 4 are things that everyone else was already doing, but it's totally 128 patents and Bob is a super awesome philanthropist and avid golfer and his clubs are super, duper, meteorically successful!

 

'481 - Volume of the interior cavity. Should be thrown out for being obvious given the already set nature of iron head size.

 

'853 - Weights again. This time it states that the weight itself might be a different material than the rest of the club. Duh. That's kind of the point of these things. If they were the same material as the head, you wouldn't be able to effectively add much weight now would you? So you use tungsten for your heavies. And Titanium for your lights. Thrown out for being obvious as well as already having been done.

 

 

These patents are just bad, and whoever issued them should feel bad.

 

In this case I don't think it was granted on the basis of the individual claims but instead the plurality of them. In this case each individual claim itself is relatively benign and so unless PXG can prove that taylormade infringed upon a significant number of the claims they are just posturing and won't have a chance if it actually proceeds in court.

 

That would make a little more sense, but what I listed there is actually the differences of each individual patent listed in the complaint. Or in other words, they built up this "impressive" patent portfolio using each little piece of the puzzle, and are now claiming TM infringes on "multiple" patents, so I think it's fair to look at how each one is different from the last. If they just had 1 single patent combining every piece and were claiming infringement on THAT patent, I don't think this would be quite as irksome to me. As it stands Parsons looks like a total DB patent troll and I hope this turns into a "meteoric" backfire in his face.

[dgp17]

Looking at it from common sense laymans eyes pine streets point is the only one that makes sense. I was kidding before. But seriously. There has to be an angle for pxg asking for this injunction. And it can't logically be they think they will get it. They won't. . So it has to be for an alternate motive. And info sure sounds logical to me. They need to know what TM knows orhas done. Otherwise how can they know what to claim in court ? They have essentially filed a suit not really knowing if they have been tred upon. They just feel violated and want someone to slap TM. Now they need to figure out if they can talk anyone into doing it.

 

Unfortunately this isn't correct either. PXG attached as an exhibit to its complaint an expert report of the top guy at Nike golf, who analyzed both clubs and all patents and opined as to the infringement. There is an entire stage of a lawsuit devoted to fact finding; it is called Discovery. You don't file lawsuits based upon speculation and unknown acts unless you want to lose on a dispositive motion. You investigate, you form your theories of liability, and then you file before the SoL runs. You only get one chance to bring your case, and I can assure you that Bob Parson's didn't accumulate a $3 billion net worth by filing premature lawsuits.

 

You didn't actually answer my question.

 

Option 1: PXG doesn't ask for injunction. Taylormade answers. PXG moves on to discovery.

 

Option 2: PXG does ask for injunction. Taylormade has to answer primie facie case with its own facts, revelaing some of their defense. PXG moves on to discovery.

 

Why would PXG choose option 1?

 

(Discovery is all well and good, but it also occurs far into the future, and settlement offers are continous and constant. Lawsuits arn't a continuum of knowledge - they take place over time. There is an advantage to knowing things early, which is why you fight injunction cases you will almost certainly lose. It has nothing to do with "Rule 65").

 

Your position now is entirely different than when we started this conversation! Now you're saying that Taylormade has to "answer" PXG's application for TRO, and this could reveal some of Taylormade's defenses. This is the first thing you've said that I agree with. Earlier, you were claiming that Taylormade bears the burden of proof and that all of PXG's allegations are presumed to be true, while then confusing Taylormade's role as a respondent to PXG's motion for TRO with Taylormade's role as a movant under Rule 12b. All of your earlier posts are completely incorrect, from either a practical or theoretical standpoint.

 

However, will Taylormade file a response to the motion for TRO? Yep. Will it state why it hasn't done anything wrong? Yep. Are they going to reveal anything PXG doesn't already know? Nope.

 

And by the way, Rule 65 turns your Rule 12/burden confusion on its head. If the respondent bears any sort of burden, or if they must respond to the TRO as you so vigorously stated, then why in the world does the Rule provide that TROs can be granted ex parte? Probably because the burden rests entirely on the movant. How you think Rule 65 isn't applicable is way by me here. PXG filed a complaint for patent infringement, which includes them seeking a remedy for injunctive relief. Under Rule 12, Taylormade has 21 days from the date of service to file its answer or Rule 12 motion to that complaint.

 

After it filed the complaint, PXG filed an entirely separate motion for TRO and preliminary injunction (which is what we are discussing here). Both of these pleadings were filed and served on September 12. Rule 65 is the entire basis for PXG getting in front of a judge within three days of service of its motion. Taylormade still has 18 days to file its answer to PXG's complaint. This emergency process is in no way intended to force Taylormade to reveal any of its hand--at all. Will they file a response--yes. Will it argue the standard set forth in Rule 65--I would hope so. Will Taylormade reveal any information not needed to ensure PXG loses the day? No.

 

This is not a fact-finding mission for PXG. If it's anything at all, it's a business decision in hopes to delay the release of the clubs till after the judge rules. I'm sure Taylormade will start shipping orders at midnight tonight, but if the for some reason the judge does grant that TRO, Taylormade is going to be in a bind. PXG stands to lose nothing here.

 

Good lord. This is incredibly simple. You just reposted your post from five pages ago with more words. Yes, PXG technically bears the burden. In the real world, though, TM does, because once PXG makes out a prima facie case TM has to say something. So, in a law textbook, your right. On planet earth in an actual courtroom, TM has to respond. OBVIOUSLY I don't mean TM *literally* has the burden of proof. Your post is like someone saying "it'll take forever to get there" and someone else saying "Well, actually, there is no such thing as forever.... *5 pages of nonsense*".

 

I'll highlight the important part of this goobledegook:

 

"Will Taylormade reveal any information not needed to ensure PXG loses the day? No. "

 

But TM *will* reveal some information.

 

We can agree to disagree if you like. If this was a law school test, you would make a C or D.

 

You clearly think the Rules of Procedure were not created to govern the practice of law. This has NOTHING to do with nonsense or not real world, theory type answers. Maybe if you're defending a traffic ticket in some backwoods equity court then what you're saying applies. I assure you, when two 100 million dollar companies are before a federal district court, the letter of the substantive, and procedural, law is followed to a T--as are each district's local rules. Please go before a federal judge and tell them how how it works in the real world without citing to and properly applying the Rules--you will lose every single time.

 

If you claim otherwise then you are admitting you have no idea what you're talking about.

[DBill]

Just watching the 2 lawyers go back and forth makes this thread worth while.

[ebrasmus21]

Just watching the 2 lawyers go back and forth makes this thread worth while.

 

Most epic* fascinating battle I can remember this year.

 

*Don't want Callaway to get the wrong idea about my post.

[the bishop]

Just watching the 2 lawyers go back and forth makes this thread worth while.

 

Most epic* fascinating battle I can remember this year.

 

*Don't want Callaway to get the wrong idea about my post.

Better call Saul

[ebrasmus21]

Just watching the 2 lawyers go back and forth makes this thread worth while.

 

Most epic* fascinating battle I can remember this year.

 

*Don't want Callaway to get the wrong idea about my post.

Better call Saul

 

Bishop, can't believe we don't have any S. Goodman references in this thread NOR do we have any references to A Few Good Men. This thread isn't missing much but it is missing that.