June i, 1906.] 



THE INDIA RUBBER \A^ORLD 



291 



ENGLISH GOLF BALLS BARRED IN AMERICA. 



IF you play golf with a ball made in England you are 

 liable to arrest, says the New York Sun. Over there 

 unless the lower court and chancer^' divisions are reversed 

 on the appeal pending in the House of Lords, the rubber 

 cored golf halls controlled by the patentee and his licensees 

 in the United States may now be manufactured by any one. 

 As a consequence, there is a flood of home manufactured 

 rubber cored balls on sale in England, and some specimens 

 have been brought to America by tourists, while other 

 players have had a box or two as a gift from friends abroad. 

 The American makers cannot prevent the balls coming here 

 in these underhand ways, but they propose to get after the 

 players who may use them. 



Priority of invention is the point that the .Vmerican pat- 

 entee [meaning Haskell] has so far been unable to estab- 

 lish in the English courts. In this country all other makers 

 of rubber core balls pay a royalty to the patentee's firm and 

 should the House of Lords sustain the American patent, 

 which the lower courts have not done, makers of rubber core 

 balls the world over would have to pay a similar royalty. 

 In England the manufacturers act as though they had 

 already proved their contentions fully and the output is be- 

 ing sent into the home and colonial markets at a great pace. 

 The retail price in England will average, according to the 

 advertisements, $5 a dozen. The American price will aver- 

 age $6 a dozen, and, as in spite of the duty there might be a 

 profit in sending the balls here, there is a special interest in 

 having the English balls declared from the outset contra- 

 band of trade. 



" We can't reach the makers or the underhand consignors 

 of the.se balls made in contempt of the American patent," 

 declared a leader in the New York trade, "but we can get 

 after the individuals who openly play with them. We will 

 stop by legal means, and very quickly, the golfer who 

 openly uses an English golf ball, or any golf ball made in 

 defiance of our rights on an American course. " 



The situation is very different from what it was when golf 

 first attained popularity here in 1895. Then the golf balls 

 were all imported from England, but there were no restric- 

 tions on the manufacture of the solid gutta-percha ball, and 

 American firms soon jumped into the trade. By 1900, when 

 the patentee first began selling broadcast the rubber core ball, 

 the greater proportion of the solid balls used here were of 

 American manufacture. Various sorts of rubber core balls fol- 

 lowed the first on the market, until in 1903 the patentee 

 brought suit against all other makers for infringement of his 

 patents and cumulative damages. The two principal defend- 

 ants confessed judgment, and since then all makers of golf 

 balls having a core of wound rubber have paid a royalty. 



In England the new American ball received a patent right 

 in 1898, and although the firms and the professionals made 

 a stand against it the fight was as futile as that of the old 

 feather ball makers against the first solid gutta-percha balls. 

 By igoi the new ball had revolutionized the demand for golf 

 balls in England, and the rubber core became the admitted 

 ideal in such articles, so that all theories of playing the game, 

 laying out courses and placing the hazards, based on a solid 

 and slow ball, were also revolutionized. The English trade 

 was naturally averse to conceding a monopoly to the Amer- 

 ican patentee and has waged a bitter fight in the law courts. 



The combination of elasticity and inelasticity of the Amer- 

 ican patent has been the aim of many makers of golf balls in 

 Scotland and England, according to the evidence brought 

 forward, and Justice Buckley, in the chancery division, 

 seemed to have been convinced that two of the Scottish in- 

 ventors at least had forestalled the American patent in prin- 

 ciple without making the ball a commercial or even a play- 

 ing success. He decided that the lack of novelty in the 

 .\merican patent destroyed the claim to be granted an undis- 

 turbed possession of the right to make such balls. 



What is supposed to have most influenced the Justice was 

 that Captain Duncan .Stew-art, r. n., deposed that in the 

 early '70s he made golf balls, sold them and gave them awaj', 

 in the composition of which only rubber threads were used 

 in the core, and that two professionals, George and William 

 Kernie, stated that they had made similar rubber core balls 

 and that a patent had been taken out for them, although 

 they were never brought to the practicable point reached by 

 the American balls. Justice Buckley's decision was made 

 last July, and in March it was sustained by the court of ap- 

 peals. These judges relied on Captain .Stewart's testimony, 

 not attaching much weight to the Fernie evidence. 



Whether the rubber core golf balls now in this country 

 from England are better or worse than those being made 

 here has nothing, to do with the attitude of the .Vmerican 

 makers. Whether the House of Lords sustains the English 

 patent or not, they do not propose to let the English balls 

 into this market without a litigation, and the golfer who is 

 in possession of any such balls had better watch out unless 

 he is N'earning for a law suit. 



" The course to be pursued," remarked a lawyer who is a 

 golfer, "would be to serve an injunction on the player who 

 is using the obnoxious ball. A temporary injunction might 

 be asked for from the court, and unless the player demon- 

 strated his legal right to use the ball the injunction would 

 then be made a permanent one. There could be no arrest in 

 the first instance but if the injunction were granted and sub- 

 sequently violated there might be cause for a criminal action. 



" It is good law, I believe, that an .\merican patent must 

 be protected from encroachments on the American market of 

 articles made in violation of that patent in other countries. 

 But in general law, to speak ofthand on the point, it may 

 not be easy to obtain a permanent injunction against a golfer 

 who may prefer to use a golf ball made in England and which 

 is not on sale in this country. The golfer may prove to the 

 court that in England it has been decided it is lawful to make 

 and vend the golf ball he is using. Law is largely a matter 

 of precedents, and, on the principle of res adjudicata, an 

 American Judge might follow the English coi:rt decision and 

 refuse to enjoin the golfer from using the foreign made ball. " 



A permanent injunction against one player would become 

 general in its application to similar cases, and, according to 

 one golf goods dealer, should the American patent be beaten 

 in the House of Lords, the waj' the English dealers will get 

 their cause before the American courts will be in defending 

 an injunction suit of the sort mentioned. They feel chipper 

 over there, he saj^s, on the question of priority of invention, 

 and beginning with an injunction defence will push the case 

 all the way up for a final verdict bj' the supreme court at 

 Washington. Meanwhile should a friend get some of the 

 English golf balls to you it would be wise not to proclaim 

 the fact from the clubhouse roof. 



