Alford Cartons v. GORDON CARTONS, Civ. No. 6799.

• Decision Date: 14 May 1954
• Docket Number: Civ. No. 6799.
• Citation: 121 F. Supp. 363
• Parties: ALFORD CARTONS v. GORDON CARTONS, Inc. et al.
• Court: U.S. District Court — District of Maryland

121 F. Supp. 363

ALFORD CARTONS v. GORDON CARTONS, Inc. et al.

Civ. No. 6799.

United States District Court, D. Maryland.

May 14, 1954.

Pennie, Edmonds, Morton, Barrows & Taylor, Merton S. Neill, New York City, & Stanton T. Lawrence, Jr., Rutherford, N. J., and Bowie, Burke & Leonard, Daniel B. Leonard, Baltimore, Md., for plaintiff.

Bernard F. Garvey, Washington, D. C., and Thomas J. Kenney, Baltimore, Md., for defendants.

COLEMAN, Chief Judge.

This is a suit for infringement of a patent to Oscar L. Vines, No. 2,643,813. issued June 30, 1953, on application of August 24, 1951, for a folding paper-board carton adapted to contain fruit, more commonly known as a tomato tray.

The plaintiff, Alford Cartons, hereinafter referred to as Alford, to which the Vines patent was assigned on June 30, 1953, is a New Jersey corporation with its principal place of business at Ridgefield Park, in that State, where it manufactures and sells many types of paper-board folding cartons and boxes. One of the defendants, Gordon Cartons, Inc., hereinafter referred to as Gordon Baltimore, is a Maryland corporation with its principal place of business in Baltimore. The other defendant, Gordon Cartons of Michigan, Inc., hereinafter referred to as Gordon Michigan, is also a Maryland corporation with its principal place of business at the same address as that of defendant Gordon Baltimore, where both are engaged in the manufacture and sale of paper-board folding cartons and boxes. The defendant companies derive their name from one Allen A. Gordon who originated the business of the two defendants. Upon the death of Allen A. Gordon, Gordon Michigan became a wholly owned subsidiary of Gordon Baltimore.

To the present complaint, which was filed on August 18, 1953, both defendants filed a motion for summary judgment on the ground that the Vines patent was anticipated by the prior art. The motions, after full argument were denied; the defendants admitted infringement, and trial was had in due course upon the sole issue of the validity of the Vines patent which embraces five claims, all of which are in suit. Defendants have not emphasized any distinction between the claims as respects their validity, it being asserted that all are equally invalid for the reason: (1) what is claimed is per se lacking in invention; (2) the claims are anticipated by prior art patents; (3) also by prior use; and (4) there has been no commercial use of the patent. It is deemed sufficient to quote merely the first of the five claims, which is as follows: "1. A carton blank of substantially rectangular shape provided with two parallel fold lines extending longitudinally the full length of the blank, each of said longitudinal fold lines being disposed substantially the same distance from and parallel to the longitudinal sides of the blank, the blank being further provided with a first pair of parallel fold lines each of which extends transversely across a separate end portion of the blank at substantially the same spaced distance inwardly therefrom and with a second pair of parallel fold lines each of which extends transversely across a separate end portion of the blank at substantially the same distance inwardly from the proximate fold line of the first pair as the distance between the said proximate fold line and the proximate end of the blank, the blank further having four separate fold lines extending diagonally outwardly to the two sides of the blank at an angle of about forty-five degrees thereto from each of the four intersections of the two longitudinal fold lines and the two transverse fold lines of said second pair thereof, the portion of each end of the blank defined by the two longitudinal fold lines, the end of the blank and the transverse fold line proximate thereto being provided with an outwardly arched cut line having its ends positioned adjacent the intersections of said longitudinal fold lines with said proximate transverse fold line, the ends of the blank being provided with an outwardly projecting tongue portion, and the body of the blank being provided with a substantially centrally disposed transverse cut line adjacent the inboard side of each of the transverse fold lines of said second pair thereof."

Vines, in his introduction to the specifications of his patent, after stating that his folding carton "is of the knockdown, set-up type such that the carton in its knocked-down condition can be set up by a bending motion applied to the end portions of the carton", thus summarizes recent developments in this art: "There has been extensive development in recent years of folding cartons suitable for use in the packaging of fruit such as tomatoes and the like. These tomato trays, as they are generally referred to, are commonly provided with an open top so that the filled tray can be subsequently wrapped with a transparent material which will leave the contents of the tray exposed to view. A particularly successful form of tomato tray has thus been developed in which the tray is composed of a blank having two side panels folded over and inwardly on top of a central panel about two fold lines extending longitudinally of the blank so as to form a substantially flat structure in the knocked-down condition. For erection of the folded tray, each end portion of the flat structure is folded upwardly about an inner transverse fold line so that a folding web, defined in each of the two side panels adjacent the transverse fold line, causes the side walls to assume an upstanding position. In the resulting structure it is particularly important that the end walls of the erected tray stand straight and provide strength for not only the ends of the carton but also for the adjoining portions of the side walls of the carton. An additional feature which is generally required in such structures is a flap at each end of the carton adapted to project inwardly a short distance from the upper edge of each end portion. The purpose of these inwardly projecting flaps is to provide a horizontal platform upon which another filled tray can be supported when a plurality of the filled trays are stacked for shipment or display."

Following this introductory statement Vines gives a recital of what he claims to be the features of his folding carton, when read in the light of the specifications and the drawings of the patent, involving novelty in construction, greater economy in production and increased utility over anything in the prior art. These features, summarized, are eight in number, as follows: (1) the scoring or perforated line for folding extends the full length of the blank form; (2) the arched shape cut in the end of the bottom of the blank form extends in the direction of the extreme end of the form; (3) the extensions of the two side walls are folded so as to form a double thickness end wall structure; (4) when this double thickness end wall is first raised to its vertical position, outward distortion of the side walls causes the end wall structure to open; (5) as the upper half of the double thickness end wall is folded forward, even though slightly, any tendency to support the end walls outwardly is resisted because such folding of the double thickness end wall locks in place the remaining inner portion of the end wall structure; (6) the particular portion of the double end wall structure which is folded forwardly and inwardly is locked in its upright final position by the tongue at the extreme end of the blank form, which fits into a slot in the bottom panel of the form; (7) the arched shape cut in the extension of the bottom of the blank form is fashioned from the innermost surface of the double thickness wall section that is folded into the tray; and (8) the structure of double thickness remaining after the arched shape flap has been cut out of the ultimate extension of the bottom of the blank, this double thickness structure being along both side edges of that portion of the end structure which fits into the interior of it, causes the two webs at the ends of the side walls to be hugged or pressed closely, both on their outer and inner surfaces, by the double thickness of the end wall, thus giving to both the end and side wall structure rigidity that counteracts buckling or breaking.

The testimony discloses that the folding carton industry, while of comparatively recent origin, is, nevertheless, one crowded with many types of cartons and that the competition is very great. It also discloses that the more recent modern merchandising methods, particularly of the so-called super-markets, have greatly increased the use of all sorts of containers, especially paper-board cartons. The testimony further indicates that sales of tomatoes in cartons of one form or another have become increasingly great each year, reaching at the present time sales of billions of tomatoes in such containers; that about 90% of the tomatoes thus sold in approximately the past ten years has been in cartons made by the Standard Folding Tray Company of Brooklyn, and that the next largest producer of cartons used in the tomato trade has been the Associated Folding Box Company of Boston. It is asserted on behalf of the plaintiff company that carton manufacturers generally have long endeavored to design and manufacture a tomato tray that could economically compete with that of the Standard Folding Tray Company, but have been unsuccessful until the advent of the Vines invention.

In this crowded and highly competitive field involving the art of making knock-down paper-board cartons, considerable litigation naturally occurred. Three patents to Ralph A. Gross, Nos. 1,690,109, 1,758,510 and 1,940,213, respectively, are the earliest litigated patents to which we have been referred. See Simplex Paper Box Corp. v. Rosenthal Paper Co., 8 Cir., 104 F.2d 349, and Simplex Paper Box Corp. v. Boxmakers, Inc., 7 Cir., 116 F. 2d 914. All three Gross patents were held invalid in these decisions on the...