William L. Coney Blog: TaylorMade Countersues PXG

Tuesday, November 28, 2017

TaylorMade Countersues PXG

As reported yesterday by Golf Digest’s Mike Stachura, there’s been an escalation in the legal tussling between PXG and TaylorMade.

You may recall that this all started with PXG claiming that, with the P790 iron, TaylorMade violated several PXG patents. In an unusual step, PXG also filed suit against select retailers for selling the allegedly infringing irons. Claiming that allowing the P790 to remain on the market would do irreparable harm, PXG also sought a preliminary injunction blocking the sale of the P790. That request was denied shortly after that, and then things went mostly quiet until two weeks ago.

The latest salvo has TaylorMade filing a counterclaim in which it argues that although it didn’t violate any PXG patents, several current PXG products violate TaylorMade patents. TaylorMade has asked the court to prevent PXG from selling the allegedly infringing products. For good measure, TaylorMade has also asked the court to declare five of the patents PXG used as the basis for its original complaint invalid.

Sound familiar? All that’s missing is a cursory “I know you are, but what am I?”.

According to Stachura, the offending PXG products include entire 0311 Iron family, as well as the 0811 Driver and 0341 Fairway Wood. Stachura observes, “TaylorMade isn’t interested in stopping the sale of just one product. It’s going after nearly all of PXG’s inventory.”

Classic tit for tat and I expect that same result; TaylorMade gets to sell its 790, PXG will likely keep selling too.

Following the Script

To no small degree, this mirrors the approach Titleist has taken in its current litigation with Costco over the Kirkland Signature Ball. And while this gives the appearance of TaylorMade playing hardball with an industry outsider, sadly this is mostly boilerplate patent litigation stuff.

It goes a little something like this:

You infringed! No, you infringed!

Your patents are invalid! No, your patents are invalid!

It’s not so much a calculating war as it is what the late George Carlin would term a prick-waving dick fight.

You Just Now figured it out?

While I can’t speak to what either side actually believes to be true regarding the validity and subsequent infringement upon their respective patents, from the outside, the sudden discovery by TaylorMade’s crack team of patent scholars that a collection of two and a half-year-old PXG products infringes on its IP reeks of intellectual dishonesty.

Call it a leverage play meant to put PXG on the defensive. It's possible TaylorMade has a case - I’ve been told nearly every golf product infringes on something else if you look hard enough. The strategy might even work too, but it's hard for me to believe either that TaylorMade previously failed to notice its IP was being borrowed, or that it was previously content to give PXG a free pass to use its intellectual property to rule the premium market and potentially take dollars out of TaylorMade's pocket.

2.5 years on the market and you just now noticed? Really?

What's Next

A preliminary hearing in the case is set for early next month, and while the outcome is anything but certain, I suspect both sides will eventually agree that they’ve spent enough money and that it’s in both parties’ best interest to walk away.

My prediction, nobody wins but the lawyers.