A federal court in Alexandria, Va., felled three lawsuits with a single summary judgment regarding a patented plastic drinking cup. Since September, Berry Sterling Corp. has launched separate patent-infringement suits against Pescor Plastics Inc. of Fort Worth, Texas; Packaging Resources Inc. of Lake Forest, Ill.; and PackerWare Corp. of Lawrence, Kan., all of which injection mold a 32-ounce reusable plastic cup, similar to Berry's, that is tapered at the base to fit in a standard car cup holder.
But the court in Alexandria ruled April 25 that Berry's design patent, issued Sept. 19, just days before it brought suit against Pescor, is invalid. Pescor filed the motion for the judgment.
``We never felt that there was anything to the patent,'' said Tim Kilpatrick, Pescor vice president.
U.S. District Judge Albert B. Bryan seemed to agree, concluding that although Berry's patent described an ``ornamental design,'' the disputed cup's design ``was not primarily ornamental, but was dictated by function.''
Martin Imbler, head of Berry Plastics Corp., said his company was surprised and disappointed by the judge's decision.
``We entered into the lawsuit feeling that we had a valid patent. We still believe that to be the case,'' he said.
Berry can appeal the court's judgment, which it must do within 30 days of the ruling. But the company has not yet decided to go that route, Imbler said by telephone from Berry Plastics' Evansville, Ind., headquarters. Its Berry Sterling unit is in Winchester, Va.
The ruling essentially annuls Berry's claims that PRI and PackerWare cups infringe on the same design patent, No. 362,368, since ``the patent is dead,'' according to Pescor lawyer Bob Vanderhye. Berry's suits against those companies still need resolution, but without a patent, they cannot go to trial, he said.
``When one court finds the patent invalid, the patent's invalid,'' Vanderhye said.
``This allows the free enterprise system to work,'' Kilpatrick said. ``Now that we have four competitors out there that can shake it up in the marketplace, we can see how big we can grow this market.''
He estimated U.S. sales for the plastic cup at $50 million to $75 million, or 500 million units. But, he said, that market is growing, especially as fast-food stores use the cup to spur sales of large drinks at their drive-through windows. Pescor's parcel of that market last year was less than $2 million, just 10 percent of its total sales.
All three defendants - all of which have counterclaims pending against Berry for allegedly misrepresenting to the public that their cups infringe on its patent - are mulling their next steps. Pescor would prefer to settle its countersuit, rather than take it to trial, Kilpatrick said. In a news release PRI said the ruling strengthens its claims of unfair competition, fundamental to its suit.
Bruce Sims, PackerWare president, said now that the firms have a ``level playing field ... we'll go do our jobs.''
Last month Berry settled suits with Pescor customer Boddie-Noell of Rocky Mount, N.C., which originally was named as a defendant in the Alexandria lawsuit, along with Pescor, and also was countersuing Berry, Imbler said. He would not disclose details.
But, according to Kilpatrick, both Berry and Boddie-Noell had dropped their respective suits after Berry paid the Hardee's franchiser about $250,000.
Boddie-Noell's marketing vice president, Randy Pritchard, did not return telephone calls.
This year, customer Boddie-Noell plans to use 15 million to 20 million of the cups at its 350 Hardee's restaurants, Kilpatrick said.
