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Law360 (March 27, 2020, 9:47 PM EDT ) TaylorMade Golf Co. and Blast Motion Inc. on Thursday said the COVID-19 pandemic was no reason to delay briefing in a patent lawsuit they're facing over golf swing analyzer products, tearing into NewSpin Sports LLC's request for a deadline extension and arguing that the briefs would be easily filed on time electronically.
In its 2018 suit, NewSpin claims that its golf swing analyzer products have been on the market since 2012, but TaylorMade and Blast Motion have been selling nearly identical products that infringe its patents.
On Wednesday, NewSpin requested an extension for its claim construction deadlines, saying the coronavirus pandemic has caused "significant disruption to counsels' respective abilities to confer internally as well as with their clients and retained experts."
Additionally, NewSpin said TaylorMade and Blast Motion now have until April 14 to turn over documents detailing operation of the accused products. That new deadline means NewSpin will be forced to submit its opening claim construction brief before reviewing those documents, it said in the motion.
But TaylorMade and Blast Motion fired back Thursday, saying the claim construction issues have already been identified and submitted to the court, and "all that is left to do is file the claim construction briefs electronically."
"While defendants are mindful of the evolving nature and difficulties associated with the restrictions associated with COVID-19, NewSpin does not present sufficient justification to delay the proceedings at this time," TaylorMade and Blast Motion said.
They added that arguing that a claim construction brief cannot be submitted remotely has "the same effect of arguing that no court deadline can be met. But this cannot be true, given that NewSpin filed the instant ex parte motion."
And this is the first time NewSpin has said it lacks documents needed for claim construction, an assertion that is "both false and baseless."
"NewSpin has all the documents necessary for claim construction," TaylorMade and Blast Motion said.
Jonathan Suder, counsel for NewSpin, told Law360 on Friday that the opposition to the extension is disappointing.
"Everyone is trying to make due with what is an unfortunate circumstance," he said. "While cases do need to move forward, parties should all be working together."
He added that his team has agreed to similar extensions in other cases "in light of the circumstances."
NewSpin was founded by Angelo Papadourakis, a former stock index trader on the Chicago Mercantile Exchange who quit to focus on his ideas for a golf club swing analyzer in 2007. NewSpin's SwingSmart hit the market in 2012, and Papadourakis was granted patents for his technology in 2016 and 2017, per his suit.
The SwingSmart attaches to a golf club near the grip and captures data on each swing, such as "swing tempo, shaft lean, swing speed and club face angle, among others," according to the 2018 complaint.
Blast Motion sells a similar product that attaches to the bottom of a baseball bat or golf club, NewSpin said, and TaylorMade sells a golf club that it developed with Blast Motion known as the Spider Interactive Powered by Blast, which incorporates sensors into a specially designed club.
Both products infringe NewSpin's patents, it said in the suit. The patents cover "systems and methods implementing a motion sensor unit to capture motion data relating to movement of an object usable in a sport or leisure activity, such as a baseball bat or golf club" and using "captured data wirelessly transmitted to a processor for processing to determine one or more derived metrics describing movement of the object."
In Wednesday's motion for a deadline extension, NewSpin said it was "manifestly unfair" for it to be forced to proceed almost entirely through claim construction briefing without being apprised of information detailing how the accused products work, "which defendants have had in their possession throughout."
And NewSpin's counsel's offices have been closed indefinitely in response to coronavirus, it said.
"These disruptions to normal operations will hinder plaintiff's ability to meet upcoming claim construction deadlines apart from the discovery issues," NewSpin said. It added that counsel for TaylorMade and Blast Motion had also cited the pandemic in requesting more time to comply with another deadline last week.
TaylorMade and Blast Motion said on Thursday that their circumstances for an extension were different than NewSpin's.
"[S]ubmission of briefing (of which the substance has already been settled) through [electronic court filings] is significantly less onerous than coordinating with multiple individuals to collect documents, working with a third-party vendor to process the documents, and ensuring that the law firm staff can produce the documents," the companies said.
Counsel for TaylorMade and Blast Motion didn't immediately return a request for comment late Friday.
The patents-in-suit are U.S. Patent Nos. 9,656,122 B2; 8,831,905 B2; and 8,589,114 B2.
NewSpin is represented by Frederick W. Kosmo Jr. and Hubert Kim of Wilson Turner Kosmo LLP, and Jonathan T. Suder and Richard A. Wojcio of Friedman Suder & Cooke.
TaylorMade and Blast Motion are represented by James C. Yoon, Sara L. Tolbert and Jamie Y. Otto of Wilson Sonsini Goodrich & Rosati PC.
The case is NewSpin Sports LLC v. Blast Motion Inc. et al., case number 18-cv-2273, in the U.S. District Court for the Southern District of California.
--Additional reporting by Ryan Boysen. Editing by Adam LoBelia.
For a reprint of this article, please contact reprints@law360.com.
