Two major PET blow molders are battling over technology to make multilayer ketchup and beer bottles.
Pechiney Plastic Packaging Inc. last month won a key recommendation in a 10-year-old patent-infringement case against Continental PET Technologies Inc.
A special master appointed by the U.S. District Court in Hartford, Conn., found that Continental PET has infringed on barrier technology patents for PET bottles that it supplies to H.J. Heinz Co. and Miller Brewing Co.
Continental PET has 30 days to appeal the recommendation. Company officials could not be reached for comment. Continental PET was acquired by Toledo, Ohio-based Owens-Illinois Inc. in 1998.
A Pechiney official expects Continental to appeal on the grounds that the patent is invalid. He added that the case may be a long way from a conclusion, but he expects Pechiney eventually to win significant compensation.
"The court case has been pending since 1990," said Mike Hoover, vice president and general counsel for Chicago-based Pechiney. "To the extent [Continental PET has] been selling products for 10 years or so — particularly ketchup bottles — we think there'd be some substantial damages."
No dollar amount has been applied to the damages, pending the forthcoming discovery process, he said Dec. 20 by telephone.
At issue is a fold-over barrier-layer technology that Hoover said is patented by Pechiney. This technique allows the ethylene vinyl alcohol barrier layer to fold over on itself in the neck of injection molded preforms.
"When layers are injected into preform, you have to make sure the barrier layer doesn't go beyond where the PET layers are," he said. "When our barrier layer goes up the side of wall, it goes up so far, stops and folds back on itself: That's a patented feature.
"The special master found Continental PET bottles had that feature."
Several factors dragged the case this long, he said, including the death of the original judge slated to hear the case. The case did not receive much attention from the next judge until 1997.
"For about the first five years, no discovery took place, as Continental accused us of frivolous filing," Hoover said.
If Pechiney is awarded monetary damages, Hoover said the company may seek further injunctions against Continental.
"It's certainly possible that in addition to getting money damages, one of the other damages we'd consider would be injunctive relief — to try to stop them from making the infringing articles," he said. "The question then is can Continental PET change its products or processes to make the same things without infringing the patents."
Pechiney Plastic Packaging was 26th in Plastics News' 2000 ranking of North American blow molders. Contentinal PET was ranked as part of Owens-Brockway Plastic Products, which was No. 1 with estimated blow molding sales of $1 billion.