Berry Plastics Corp. and Pescor Plastics Inc. will meet in court again Feb. 23, over a disputed design patent for a drink cup that fits in a car-cup holder.
In a Dec. 19 decision, U.S. District Court in Alexandria, Va., denied Pescor's motions for summary judgment that Berry's Drive-Thru cup design patent is invalid, and therefore Pescor's cup does not infringe against it.
``We're disappointed because we were not victorious in getting a summary judgment,'' Tim Kilpatrick, Pescor executive vice president, said in a telephone interview. ``We still think we can win.''
The cup is a 32-ounce, injection molded, thin-walled, high density polyethylene cup. Pescor claims the cup's design has been circulating in the industry since 1992. The patent dispute now has entered its third year.
``This is the biggest cup case on record,'' said George Willbrandt, Berry vice president of drink cup sales and marketing.
Berry, based in Evansville, Ind., applied for a design patent in September 1995 and subsequently filed lawsuits against Pescor of Fort Worth, Texas, Packaging Resources Inc. of Lake Forest, Ill., and PackerWare Corp. of Lawrence, Kan. Pescor and PRI countersued. Berry since has acquired PackerWare.
Pescor's fluted version of the cup in 1995 was ruled possibly to be infringing on Berry's patent. When the case is tried before a jury next month, both of Pescor's cup designs, fluted and nonfluted, will be under consideration.
Willbrandt said the court's ruling ``vindicates'' Berry's long-held belief that its patent is valid.
Berry makes aerosol overcaps, drink cups and housewares.