Berry Sterling Corp. has won a round in the long-running legal dispute over the design of a large injection molded cup capable of fitting in car cup holders.
The U.S. Court of Appeals in Washington on Sept. 9 sent the case back to U.S. District Court. According to Berry, the action makes Berry Sterling's patent design No. 362,368 valid again — at least temporarily.
In April 1996, U.S. District Court in Alexandria, Va., ruled Berry's design patent invalid on the grounds of functionality. Berry appealed, stating that while the cup is functional, its ornamental design needed to be protected.
``The lower court's order is no longer in effect because of a legal mistake,'' said Berry's lawyer John Delehanty, who is based in New York.
But one opponent pointed out that the dispute is not settled.
``They didn't win anything,'' said Tim Kilpatrick, executive vice president of Pescor Plastics Inc. of Fort Worth, Texas. ``They didn't overturn it. They remanded it, sent the case back to find out more facts, saying that summary judgment was given prematurely.''
After applying for a design patent in September 1995, Berry filed suits against Pescor, Packaging Resources Inc. of Lake Forest, Ill., and PackerWare Corp. Pescor and PRI countersued; Berry since has acquired PackerWare.
Berry Sterling is a Winchester, Va.-based unit of Berry Plastics Corp. of Evansville, Ind.
Berry considers the appeals court decision a victory. ``The original judge erred in viewing the individual aspects of the cup as functional,'' Berry President Martin Imbler said in a telephone interview. ``The appeals court took into consideration the overall appearance of the cup, which is what the design patent is for.''
The cup in question is a 32-ounce, injection molded, thin-walled, high density polyethylene cup. Pescor claimed the cup's design had been circulating in the industry since 1992. According to Kilpatrick, the only issue of infringement was Berry's use of flutes in its design. Pescor's current design is smooth.
``This is a bully tactic to cloud an issue that's very clear,'' Kilpatrick said. ``We have the old facts and a truckload of new facts and are more confident than ever,'' Kilpatrick added.
``[Berry] is grasping at straws. There is no infringement and the patent shouldn't have been issued in the first place. We look forward to getting this settled once and for all.''
Kilpatrick claims Pescor controls more than 25 percent of the U.S. plastic car cup market, which he pegged at a total of $60 million.
PRI did not return calls for comment. WNA Cups Illustrated Inc. of Lancaster, Texas, which began injection molding car cups after Berry's patent was found invalid, also did not return calls.