A plastic drinking cup is at the center of a patent-infringement suit involving two injection molders and a fast-food franchise. Berry Sterling Corp. alleges that a disposable cup molded by Pescor Plastics Inc. infringes on a patent Berry holds for the cup's design.
Berry's suit, filed Sept. 21 in federal court in Alexandria, Va., names both Pescor of Fort Worth, Texas, and Pescor's customer, Boddie-Noell Enterprises Inc. of Rocky Mount, N.C., as patent infringers. The suit charges Boddie-Noell, known for its chain of Hardee's, with selling the cup in its franchised restaurants.
Berry Sterling is a Winchester, Va., subsidiary of Berry Plastics Corp., based in Evansville, Ind.
The large-sized drinking cup is designed to fit into a standard car cup holder, said Martin R. Imbler, Berry Plastics president and chief executive. The wide-mouthed cup has a ``stepped-in design'' that allows for a smaller-diameter bottom, he said by telephone from Evansville.
Berry injection molds the thin-walled cup in 32-ounce sizes and larger, from high density polyethylene.
Berry's cup was designed by Sterling Products Inc., also of Winchester, and introduced to the market last year, Imbler said. Berry acquired Sterling March 10, but the patent on the cup's design was not issued until Sept. 19, he said.
Pescor Executive Vice President Tim Kilpatrick called the suit ``unjustified.''
``We just found out about it,'' he said, ``and we're very surprised.''
He said the plastic cup's design has been circulating in the industry since 1992, and that Pescor began molding its version in November, after working on the project for several years.
``As of today's date, Pescor is one of four manufacturers that makes a 32-ounce cup that fits into an automobile holder,'' Kilpatrick said. ``To try to lay claim to such a thing is somewhat comical.''
But, according to Imbler, Berry holds several utility and design patents on the cup. He said damages sought will depend on how Pescor and Boddie-Noell respond to the suit.
``If they cease and desist from producing this cup, then that's the end of it,'' Imbler said.
Kilpatrick said the action was ``a poor attempt to try to keep competitors out of the marketplace.''
``We're planning on taking the appropriate action to protect our rights,'' he said.
Pescor's plastic packaging targets the quick-serve fountain beverage and kids-meal markets. Kilpatrick runs Pescor with his brothers Kelly and Kevin, who is president. At its Fort Worth plant, the firm molds such items as plastic reusable cups and sports bottles; its customers include convenience stores, fast-food restaurants and soft drink heavies Pepsi and Coca-Cola.
Pescor sells the cup to customers other than Boddie-Noell, Kilpatrick said, but he would not disclose their identities. Imbler said he could not comment on why Berry had not named other Pescor customers in the patent-infringement suit. Boddie-Noell officials did not respond to requests for comment.
Berry Plastics entered the drinking cup business when it bought Sterling, Imbler said. Sterling's 1994 sales were $6.5 million.
Berry is a major producer of aerosol overcaps and rigid open-top containers. It does injection molding sales of $106 million annually.
