A protracted and increasingly heated lawsuit involving two thermoformers of pickup truck bed liners might be headed back to court for a third round.
The suit, originally filed in 1993 by York Products Inc. of Hanover, Pa., alleges that another thermoformer, Custom Form Manufacturing Inc. of Elkhart, Ind., infringed on its patent by pro- ducing and selling a bed liner with nearly identical cargo-restraint features.
The suit also was brought against Central Tractor Farm & Family Center in Des Moines, Iowa. Central Tractor sells Custom Form's bed liners in Pennsylvania, where the suit was filed.
For its part, Custom Form is alleging that it began producing its version of the load-control bed liners in the mid-1980s, several years before York obtained its patent. That makes York's patent invalid, said Paul Hunt, a lawyer in South Bend, Ind., who represents Custom Form and Central Tractor.
``York hadn't even developed its product yet when Custom Form got in the business,'' Hunt said. ``That's what's so silly about the lawsuit.''
Todd Kennedy, York chief executive officer, said Custom Form did not begin making similar cargo-restraining bed liners until after York received its utility patent in December 1990. The patent spells out the structure of the modular cargo restraint system, which Kennedy said he helped develop in the late 1980s. The system, which is made from high and medium density polyethylene, includes deep grooves on opposite sides of the liner to hold cargo in place.
York has manufactured more than 70 models of aftermarket products that include the restraint system under its Load Lok trademark. In addition, the company has started producing the bed liners for Volkwagen's Savero pickup trucks in Brazil, he said.
The patent gives York the exclusive right to manufacture, use and sell products with its patented cargo-restraint features, said York's lawyer, Raymond Hasley in Pittsburgh. York has licensed the sale of its Load Lok system to other companies, including Durakon Industries, a bed liner manufacturer in Lapeer, Mich.
While the lawsuit progresses, Custom Form is continuing to manufacture and sell the bed liners named in the court case.
Custom Form President Jack Barben would not comment on the suit. Instead, he faxed a statement calling a York news release about the case ``false, misleading and clearly incomplete in an effort to intimidate customers into doing business with York.''
The suit might hinge on an appeals court's interpretation of patent language. The case first came to trial in U.S. District Court in Pittsburgh in September 1995. Midway through the trial, the court interpreted a patent claim that York believed was too narrow a definition. York consented to a final judgment for Custom Form and Central Tractor so that it could appeal the interpretation to a higher court.
Hasley next sought an alternative claim interpretation from the U.S. Court of Appeals for the Federal Circuit in Washington. In November, the appeals court reversed the district court's interpretation and broadened the definition. The issue involves the structure of the ridges on each side of the bed liner, which create slots for a wooden board to anchor a load in place.
Based on the new interpretation, York has requested a new trial at the district court in Pittsburgh. The court has yet to grant that request.Hasley said he fully expects the trial to get under way by August, while Hunt said he doubts the case will continue.
At the first trial, York asked for $8 million in damages to compensate for lost sales, after estimating that Custom Form had made about 300,000 bed liners with York's technology.
In Plastics News' 1996 ranking of North American thermoformers, Custom Form placed 39th, with $15 million in sales. York Products was not listed.