Gordon Cartons v. Alford Cartons, 6818.

• Decision Date: 27 December 1954
• Docket Number: No. 6818.,6818.
• Citation: 218 F.2d 246
• Parties: GORDON CARTONS, Inc., and Gordon Cartons of Michigan, Inc., Appellants, v. ALFORD CARTONS, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

218 F.2d 246 (1954)

GORDON CARTONS, Inc., and Gordon Cartons of Michigan, Inc., Appellants, v. ALFORD CARTONS, Appellee.

No. 6818.

United States Court of Appeals, Fourth Circuit.

Argued November 10, 1954.

Decided December 27, 1954.

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

Merton S. Neill, New York City (Bowie, Burke & Leonard, Baltimore, Md., Pennie, Edmonds, Morton, Barrows & Taylor, New York City, and Stanton T. Lawrence, Jr., Rutherford, N. J., on brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

This suit was brought for infringement of United States Patent No. 2,643,813 issued on June 30, 1953 to Oscar L. Vines, assignor to Alford Cartons, Inc., the plaintiff in the District Court. The patent relates to folding cartons of cardboard of the knocked-down set-up type extensively used in food stores for the packaging of fruit, such as tomatoes and the like. Infringement was admitted and the validity of the patent was sustained by the District Judge, who observed that the issue of patentable invention presented a close question. 121 F.Supp. 363.

The folding carton industry has been one of intense activity and in the modern merchandising of food, especially in so-called super markets countless millions of tomato trays are used every year. As was to be expected, the industry developed an efficient tray which, as Vines himself conceded during the trial, is entirely satisfactory and unobjectionable. Indeed the evidence shows that the patent in suit was deliberately designed by Vines in the employ of Alford Cartons, a manufacturer of folding boxes, to enable it to compete successfully with Standard Folding Tray Company which has produced 90 per cent of the tomato cartons used in this country in the past ten years, and with Associated Folding Box Company, the next largest manufacturer of the article.

In view of the usefulness and popularity of the device, it was inevitable that efforts to improve it and to patent new or changed forms should be made over the years; but the field has been crowded, and it is noteworthy that most of the patents recently issued have been declared invalid as embodying merely improvements or changes within the competence of persons skilled in the art. In the following cases patents on collapsible paperboard boxes were held invalid, since in each case the features relied on as improvements were found in earlier structures and it was held that there was no inventive contribution to the art in combining them. For example, three patents issued to Gross in 1928, 1930 and 1933 for a box with a locking device which could be instantly erected from a flat to a receiving position were invalidated in Simplex Paper Box Corp. v. Rosenthal Paper Co., 8 Cir., 104 F.2d 349, and Simplex Paper Box Corp. v. Boxmakers, 7 Cir., 116 F.2d 914; the Levkoff patent No. 2,342,551 issued in 1944 for a collapsible box with stiff ends was declared invalid in Associated Folding Box Co. v. Levkoff, 1 Cir., 194 F.2d 252; and the patent to Himes No. 2,243,421 of 1941 and the patent to Parks No. 2,011,232 of 1945 for collapsible boxes easily erected by hand into locking position were invalidated in Himes v. Chadwick, 9 Cir., 199 F.2d 100.

The essential character of the boxes shown in these cases, as well as in the case at bar, is well described in the following excerpt from the opinion in Associated Folding Box Co. v. Levkoff, 1 Cir., 194 F.2d 252, 253, 254:

"Boxes or trays of the type involved are ordinarily stamped out of a single sheet of cardboard. In its most rudimentary form a stamping, or blank as it is called, for a folding box would be either a square or a rectangular piece of cardboard, depending upon the shape of the box desired, having score lines or grooves equidistant from and parallel to each of its four sides and spaced inwardly from the edges of the blank the distance desired for the height of the box. These score lines of course intersect at four points, each point inward from a corner of the blank, and because the lines are all equidistant from the sides, and each is parallel to a side, the score lines define a square at each corner of the blank. The square area so defined is called a corner web, and it is divided into two triangular portions called corner web sections by a diagonal score line extending from the point of intersection of the longitudinal and transverse score lines previously described outward to the corner of the blank. Thus when the side portions and end portions of the blank are bent upward on the longitudinal and the transverse score lines respectively as hinges to form the side panels and end panels of the box, each corner square can be folded inwardly on the diagonal score line across it and the double thick triangular pieces of material resulting can then be folded against and fastened by gluing, stapling, sewing, or any other appropriate method, to either an adjacent side wall or end wall to hold the box erected."

The Vines structure is shown in the diagrammatic drawings of his patent which are set out below: ^*

As shown in Fig. 1, the Vines carton or tray consists of a substantially rectangular blank which is made of cardboard. The blank has longitudinal fold lines 10 and 11 which extend the full length of the blank, as well as two pairs of transverse fold lines, the first pair being designated 12 and 13 and the second pair 16 and 17. Diagonal fold lines 18, 19, 20 and 21 extend outwardly from the longitudinal fold lines 10...