Basketball Game Clock Patent Owner Blows The Whistle On Alleged Infringer

Michael Costabile, a former NBA referee, is suing fellow basketball referee Keith Fogleman for allegedly ripping off Costabile's patent.

A new patent infringement lawsuit involving the ability for a whistle to start and stop a game clock has tipped off in a North Carolina federal court. Michael Costabile, a former NBA referee, is suing fellow basketball referee Keith Fogleman for allegedly ripping off Costabile’s patent that is a “system for remotely starting and stopping a time clock in an environment having a plurality of distinct activation signals.”

Costabile’s claim to fame, outside of developing the system surrounding his patent, is that he blew the whistle on a foul in the last moments of a 1990 NBA game between the Milwaukee Bucks and Philadelphia 76ers, which resulted in Charles Barkley hitting two free throws and causing the 76ers to win by one point. The complaint states that this was a highly contested call due to questions surrounding whether the whistle was blown prior to or after the final buzzer was sounded.

A year later, Costabile started working on a whistle-activated timing system. He then created a corporate entity and, in 1995, launched his first product based on a belt pack recognizing the sound of a referee’s whistle and starting/stopping the clock due to the distinctive noise. Multiple advances had been made since that time, which resulted in more than one patent registration.

Using “information and belief” language in the complaint, Costabile argues that, roughly five years ago, Fogleman took possession of Costabile’s product, claiming that he wanted to repair and return it to a high school in North Carolina. However, Costabile says that Fogleman took possession of the apparatus in order to reverse-engineer it and then sell an identical competing system to Costabile’s patented device.

Costabile is of the belief that, in March 2021, Fogleman established a corporate entity called UStopIt, LLC, which is also a named defendant in the complaint and has marketed and sold infringing products under the name WhistleStop. In June, Costabile contacted Fogleman with notice of the alleged patent infringement, and Fogleman’s counsel, Justin Nifong of NK Patent Law, denied any infringement with an argument that his client designed around Costabile’s first patent obtained in April 2011.

The complaint alleges that, because Fogleman and his company were made aware of the infringement by way of letter and continued their infringing actions, they should be found to have willfully, wantonly, and deliberately engaged in acts of infringement of Costabile’s patents, permitting increased damages under 35 U.S.C. § 284 and attorneys’ fees and costs incurred under 35 U.S.C. § 285.


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Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

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