Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW FINDINGS OF FACT McGARR, District Judge. I. THE PARTIES AND JURISDICTION The plaintiff, Illinois Tool Works, Inc. (hereinafter “ITW”), is a corporation organized and existing under the laws of the State of Delaware, and has its offices and principal place of business at 8501 West Higgins Road, Chicago, Illinois. ITW manufacturers and sells (in its Conex Division) a variety of products, including thin-wall plastic cups, thin-wall plastic tubs and plastic lids for those cups. Plaintiff’s thin-wall plastic cups and tubs are covered by the Edwards’ patents Nos. 3,139,213 (hereinafter ’213 patent) and 3,091,360 (hereinafter ’360 patent) in suit. The packages and/or lids are covered by Edwards’ patent No. 3,061,139 (hereinafter ’139 patent) in suit. Defendant Foster Grant Co. (hereinafter “Foster Grant”) is a Delaware corporation with a place of business in Chicago, Illinois. Foster Grant manufactures and sells a variety of plastic cups and packages which ITW charges to be infringements of its ’213, ’360 and ’139 patents in suit. Edwards’ first “Nestable Container” patent application Serial No. 699,678 was filed on November 29, 1957. This application did not include claims covering containers with interrupted stacking devices. On October 29, 1958, Edwards filed a continuation-in-part application, Serial Number 769,050, with CIP included claims to containers with both continuous and interrupted stacking means. Pursuant to an election of species requirement by the Patent Office, a divisional application was filed on December 13, 1962, comprising claims directed only to containers with the continuous stacking device, and this divisional application subsequently issued as the ’213 patent on June 30, 1964. CIP application No. 769,050 issued on May 28, 1963 as the ’360 patent, containing claims directed to containers with interrupted stackers. ITW is presently, and since the issue dates set forth above, has been the sole and exclusive owner of U.S. Letters Patent Nos. 3,139,213 and 3,091,360. The ’139 patent in suit, issued on October 30, 1962 with 13 claims and is entitled, “Self-Venting . Package.” This patent covers generally a lid-container package and/or lid which vents gas from the package when a buildup of pressure occurs. The actions alleged in ITW’s complaint and Foster Grant’s counterclaim arise under the patent laws of the United States, 35 U.S.C. §§ 271-287. This Court has jurisdiction over the parties and the subject matter of ITW’s complaint, and the subject matter of Foster Grant’s counterclaim. Venue in this judicial district is proper. II. DEVELOPMENT OF THE EDWARDS’ NESTABLE CONTAINER INVENTIONS For at least the past twenty-five years, the paper companies have been making and selling (1) paper drinking cups for the vending industry and for over-the-counter usage, and (2) paper tubs for dairy food products (R. 63, 69, 79), The paper containers were designed to be dispensed one at a time by a dispensing device located in an automatic vending machine, at or near a counter and the like, or at a dairy filling station (R. 63-4, 455). A typical paper cup is depicted by PX-13 and a typical paper tub is depicted by PX-14 (R. 66-7, 69, 455-57). Both the paper cups and tubs usually were waxed two-piece containers consisting of a paper conical wall section having an overlapped vertically glued seam and an insert or false paper bottom suitably attached to the lower end of the paper wall (R. 63-4, 66, 69, 455). These paper containers were nestable and were arranged in stacks for shipment, handling and dispensing (R. 64). The fact that they were waxed posed problem because an undesirable taste could be imparted to the product in the container (R. 66, 69) and the fact that they were of two-piece construction presented leakage problems (R. 66). With the advent of plastic as a packaging material in the early 50’s, plastic containei’s were made by the “injection-molded” process (PX-15; R. 70-2). Although this process was relatively expensive, injection-molded food tubs, typified by PX-15, were sold during the 50’s, primarily as a premium item (R. 72). In the mid-50’s, injection-molded drinking cups (PX-17) were offered for sale by Crown Co. in relatively small commercial quantities (R. 73). These injection-molded cups (PX-17) were nestable and were arranged in stacks for shipment, handling, and dispensing (R. 74). However these containers, as made prior to the invention of the ’213 patent, due to their rigidity and breakability, required careful handling in shipment and use (R. 74-5). The Crown cup (PX-17) has a stacking device comprising a vertical thickened section in the sidewall, which was not effective (R. 73). The Crown cup jammed, and was withdrawn from the market (R. 74-5). While the paper containers were made and priced to be high volume, disposable items, the cost of the injection-molded plastic containers confined their use primarily to premium or specialty products —being intended for reuse rather than being disposable (R. 72). At or about this same time, other companies — for example, Caine Company —were marketing and selling a thermoformed plastic cup of the type shown by PX-16 (R. 75). This Caine cup (PX-16) has a stacking device comprised of a series of vertical protuberances around the periphery of the sidewall of the cup (R. 76). However the cups jammed or telescoped when stacked (R. 76-7). Even after several changes in the stacking device, the cup never worked properly and was withdrawn from the market (R. 76-7). This was the general status of the container field when ITW became interested in designing, making, and commercially selling an all-plastic container (R. 63). Prior to 1957, ITW was not in the plastic container field (R. 82-3). However in 1956, ITW became aware of and interested in a technique for thermoforming thin-sheet plastic material which could be utilized for making containers (R. 82-3). ITW investigated the use of the Politis machine and its related process, which had been developed and made the subject of patent applications, by a Mr. Charles Politis of Athens, Greece — with the view of entering the market with a line of plastic containers made by the Politis thermoforming process (R. 82-4). In 1956, Mr. Politis gave ITW several samples of thermo-formed plastic containers made on his machine (PX-18 through PX-20), none of which had any type of stacking device (R. 82-6). In late 1956, ITW’s Donald Welshon sent Mr. Politis a Continental Can thermoformed cup which was unsatisfactory because it jammed, but which did illustrate a more acceptable wall thickness (R. 80; PX-166). ITW, in 1956, agreed to take an option (R. 85-6). During the option period, ITW investigated Mr. Politis’ equipment in Greece and ITW’s Donald Welshon made several market surveys which indicated that (1) there existed a substantial commercial potential for marketing plastic containers, and (2) ITW should first attempt to develop plastic drinking cups for the vending industry and, thereafter, should undertake to develop plastic tubs for the dairy food industry (R. 87-91, 94). ITW also learned that the process then being practiced by Politis was technically sound, but that the machinery and process would have to be improved (R. 89, 93). It was also apparent that a new cup had to be designed, because there was no satisfactory plastic cup on the market (R. '87, 94, 100, 460). In May or June, 1957, Bryant Edwards, after working on the solution to the cup problem, conceived of a one-piece, nestable, seamless cup of thin-wall plastic material having a bottom configured to enhance its resistance to deformation, an upwardly and outwardly tapering sidewall of substantial height to permit gripping, a rim constructed to lend lateral strength to the upper end of the container, and a single continuous Z-shaped stacking ring located either at the rim or in the sidewall below the rim (PX-21, R. 102, 113, 454, 472-74). These designs were disclosed to and discussed by Messrs. Welshon, Black, Beart, Cathcart and Wiley who were present at an ITW meeting held on June 12 or 13 (PX-21). Mr. Fred Wiley an ITW consultant for thermo-forming machines and methods made notes of the meeting and recorded the Edwards’ cup designs and volumetric calculations for such cup designs (R. 102-05, 107, 111-12, 464-471, 1025-28, 1034-43). Because of the “apparent” advantages of locating the stacking ring at the rim (i. e., increased material for strength and quick release at top of mold), Edwards made a mold drawing (PX-22), with the stacking ring at the rim (R. 113-14, 115, 476, 477). He took the mold drawing (PX-22) to Greece, a mold was constructed, and sample cups (PX-23) of the Edwards first design were made on the Politis sample press (R. 115-17, 477-78, 1000). Some cups were also made on Politis machinery, but these cups were all scrapped (R. 480). The cups made on the sample press were brought back to the United States by Edwards in July, 1957, and were not submitted to anyone outside of ITW (R. 115-17, 482, 1000). Cups (PX-23, 'PX-24) made from this mold, however, jammed or stuck together (PX-25; R. 119-20, 482-86). As a result, Edwards abandoned this design and scrapped the mold (R. 120-21, 486). Edwards then returned to his earlier design (PX-21) with the stacking ring located in the sidewall below the rim and designed an entirely new mold (R. 121, 126). Edwards made or had made several sketches and drawings in August of 1957 of the cup covered by the ’213 patent (PX-26, PX-27, PX-28; R. 121, 487-88). In September, 1957, Edwards’ new nestable cup (PX-29) was made on the Politis sample machine (PX-31; R. 121-22, 487-91). During September, 1957, and the following few months, the cups (PX-29) were arranged in stacks and the stackability of the new design was tested (R. 122-26, 490). The cups (PX-29) were drop tested in September, 1957, and it was observed that the stacking rings gave these cups a spring-like characteristic (R. 122-26, 490, 492). By locating the stacking ring in the sidewall below the rim it imparted, as contemplated by Edwards in 1957, the following characteristics to the cup design: (1) Guiding Action — the portion of the sidewall above the stacking ring of a lower cup guides the lower shoulder (outwardly projecting) of a stacking ring of an upper cup into stacking relation with the upper shoulder (inwardly projecting) of the lower cup (R. 127, 307, 491-92). (2) Increased Stacking Area- — the upwardly and inwardly inclined section provides a wider stacking shoulder or shelf to cause greater contact area between adjacent stacking rings (R. 129, 492). (3) Lateral or Side-to-Side Rigidity —the upper and lower shoulders prevent the sidewalls of the cups from being squashed or collapsed as a result of the cups being gripped (R. 128, 310, 492). This is of particular importance in thin-wall plastic containers. (4) Concentricity — the side wall structure above and below the stacking ring urges the stacking ring at all times ' “into round”, thereby assuring better stacking of adjacent stacking rings (R. 131, 313). Uniformity of stacking action is also achieved. (5) Resiliency — by virture of the upwardly and inwardly inclined intermediate thin-wall plastic section, the stacking ring is “resilient” so that it acts as a spring which is able to withstand axial impact forces normally encountered during handling, storage, and shipment of stacked cups (R. 132, 490, 492). The subsequently developed cup (PX-48) embodied the design features disclosed by Edwards during the June, 1957 meeting and, as defined by Claim 6, this cup further provides: (6) Cam Action — by reason of the inclined shoulder means, additional resilience optionally may be provided to further enhance the axial resiliency of a stack of containers (R. 520-22). The above-discussed characteristics (1) through (5) flow from and are implicitly a part of Edwards’ nestable container invention as embodied in Edwards’ original PX-29 cup, as disclosed in the Figures 1-5 cups of the ’213 patent, and as found in Foster Grant’s accused plastic cups. The above characteristics (1) through (6) flow from and are implicitly part of Edwards’ nestable container invention, as embodied in Edwards’ PX-48 cup, as disclosed in the Figures 6-8 cups of the ’213 patent, and as found in certain ones of Foster Grant’s accused plastic cups. Subsequently, Edwards designed, produced, and tested other cups (PX-30, PX-32), which included the features of the earlier PX-29 cup but were slightly modified (R. 133-34). The PX-30 and PX-32 cups were submitted to Automatic Canteen for evaluation and testing (R. 136-38, 495). The first substantial order was placed by Automatic Canteen, in December, 1957, for 1,000,000 plastic drinking cups (PX-32; R. 138-39). Shipment to Automatic Canteen began in Spring, 1958 with ITW’s production cups (PX-33) embodying the sidewall continuous Z-shaped stacking ring (R. 142-43, 218). Several thousand of such cups were made and shipped (R. 276). However, for the reasons discussed hereinafter, the balance of this and successive orders from Automatic Canteen were filled with cups embodying Edwards’ nestable container invention, having an interrupted Z-shaped stacking ring below the rim. In accordance with its marketing plan, once ITW had developed and marketed a plastic dringing cup for the vending industry, ITW then embodied Edwards’ container invention including the continuous Z-shaped stacking ring in an all-plastic tub (PX-47, PX-48) for the dairy food industry (R. 160-66, 524-25). In 1958, ITW began to expand its commercial manufacture, and its first customer for its plastic food tubs was The Borden Company, followed by many other dairies (R. 165-67, 525). As stated, ITW delivered several thousand of Edwards’ all-plastic container invention with the continuous Z-shaped stacking ring (PX-33) to fill the Automatic Canteen order of 1,000,000 plastic drinking cups (R. 276, 503). However, as the only production machine owned by ITW was a Politis machine made in Greece, and inasmuch as this Politis machine was poorly constructed and lacked manufacturing precision, it did not produce good copies of the Edwards container (R. 500-02, 504). Moreover, field reports indicated that these plastic cups under certain circumstances were not vending as rapidly as paper cups and that upon occasion those plastic cups, that were not properly made, caused jamming of the vending machines, thereby shutting them down and requiring the attention of a serviceman to return the machines to service (R. 143-45, 1066-68). Faced with these problems Edwards had three alternatives available to him: hand sort acceptable cups, redesign the machinery, or redesign the cups (R. 145-46, 507-08). Edwards elected to redesign the cup, and to this end, in June, 1958 developed an improved cup having an interrupted Z-shaped stacking ring which facilitated cup drop or separation and which permitted greater variations in manufacturing tolerances than did the PX-33 cup (R. 146-51, 508, 518-19, 1064-65). Subsequently, Edwards made several versions of this cup (PX-35 through PX-41), out of which evolved ITW’s production cup PX-41 (R. 146-51, 218, 508-11). Several hundred thousand of these PX-41 cups, embodying Edwards’ ’360 nestable container invention, were made and shipped to Automatic Canteen (R. 152, 514, 1103). At about this time, Edwards developed another improved cup having an interrupted Z-shaped stacking facility with cams (PX-42 through PX-46; R. 152, 156, 514-18). This cup permitted even greater variations in manufacturing tolerances than did the PX-41 cups (R. 152, 514-18). Consequently, ITW’s molds were changed and the balance of the Automatic Canteen order was filled by the PX-46 cups (R. 159). ITW has continued to make and sell plastic drinking cups of the PX-46 type, because the expense involved in changing its vending cup molds back to their original form has not been justified in view of the satisfactory nature of the PX-46 cup design (R. 159-60, 218). The PX-41 cup (embodying the nestable container invention of Claim 1 of the ’360 patent) is characterized as being a one-piece nestable seamless container of thin-wall plastic construction and of a size to be gripped by one hand, having a recessed bottom, a sidewall which tapers upwardly and outwardly, a rim at the upper end of the sidewall having an increased thickness to lend lateral strength at the upper end of the container, and a circumferentially interrupted Z-shaped stacking ring formed in the sidewall below the rim (R. 150). This stacking ring, as contemplated- by Edwards in 1958, is further characterized as providing: (1) Free Cup Separation — the interrupted shoulder construction defines air passages between adjacent nested cups, thereby assuring quick and reliable separation of the lowermost cup from a stack. This feature was obtained without materially impairing the resiliency of the stacking ring (R. 148, 326-27, 512). (2) Resiliency — the inherent flexibility of the thing plastic material in concert with the shape of the stacking ring and its integral relationship to the sidewall of the cup imparts resiliency to the stacking ring, such that it acts as a spring capable of withstanding axial impact forces normally encountered during handling, storage, and shipment (R. 149, 519-20). (3) Easier Stripability — the interrupted shoulder construction in the stacking ring permits the cup to be more readily stripped from a mold than the Edwards cup having a continuous Z-shaped ring. This feature was obtained without sacrificing the overlap produced by the Z-shaped configuration (R. 149, 320-21, 512-13). (4) Greater Radial Overlap — for the same ease or difficulty of stripping, the interrupted Z-shaped stacking ring can provide greater radial overlap of the contacting shoulder means than is available with a continuous Z-shaped stacking ring (R. 147-48, 512). (5) Guiding Action — the portion of the sidewall above the stacking means of a lower cup guides the lower shoulder (outwardly projecting) of a stacking ring of an upper cup into stacking relation with the upper shoulder (inwardly projecting) of the lower cup (R. 149, 511-12). The cocking of cups encountered with “rim stacking” is eliminated. (6) Increased Stacking Area — the upwardly and inwardly inclined section provides a wider stacking shoulder or shelf which causes greater contact area between adjacent stacking rings (R. 147-49, 512). (7) Lateral or Side-to-Side Rigidity —the upper and lower shoulders prevent the side walls of the cups from being squashed or collapsed as a result of the cups being gripped (R. 324, 512). This is of particular importance in thin-walled plastic containers. (8) Concentricity- — the side wall structure above and below the stacking ring urges the stacking ring at all times “into round”, thereby assuring better stacking of adjacent stacking rings (R. 149, 512-13). Uniformity 'of stacking action is also achieved. Thus, although the total area of the shelf in the stacking ring of a lower cup was reduced somewhat, the extent of the overlap produced by the Z configuration was maintained to prevent cup jamming. Edwards, therefore, obtained the benefit of more rapid separability and improved stripability without sacrificing the advantages of the Z-shaped stacking ring (R. 147-49, 154). Furthermore, even though the stacking ring was interrupted, Edwards took advantage of the inherent resiliency of the thin-wall material and the interrupted shape to produce a stacking ring that was as resilient as the continuous Z-shaped stacking ring (R. 149). Thus Edwards also achieved the advantages of improved cup separability and improved stripability, without impairing the resiliency of the stacking ring and without lessening the ability of the stacking ring to act as a shock absorber (or spring) to protect a stack of cups from axial impact forces normally received during handling and shipment (R. 149). III. COMMERCIAL APPLICATION OF EDWARDS’ CONTAINER INVENTIONS Both of the Edwards ’213 and ’360 container inventions are used in one-piece, thin-wall plastic containers sold (1) to vending companies, for example, for vending coffee and soft drinks (R. 177, 190-91), (2) to retail purchasers for over-the-counter and home consumer usage (R. 177, 185-88), and (3) to dairies for packaging dairy food products (R. 177, 188-90). ITW and its domestic licensees make and sell such containers in large quantities (PX-33, PX-41, PX-46, PX-48, PX-150, PX-151, PX-153, PX-154). In addition, Foster Grant itself makes and sells such containers in large quantities (PX-61, PX-62, PX-63, PX-74 and PX-75). For the vending industry, the plastic cups are disposed in stacked relation so as to be storable in a magazine (chute) of a dispensing device in a vending machine (R. 179). The stacked cups are delivered to vending machine operators who periodically fill the vending machine with cups and the drinking product (R. 179). The operator manually drops or places the stacked cups in the dispensing magazine which feeds the cups to a dispenser mechanism (R. 179). When the machine is activated by a coin or otherwise, the mechanism segregates the lowermost cup from the remainder of the stack, whereby under the force of gravity the cup drops from its stacked position into a filling station and is filled with a hot or cold beverage, for example, coffee or a soft drink (R. 179). The cup is then grasped by the purchaser and removed from the filling station of the vending machine (R. 179). For the over-the-counter and home consumer market, the plastic cups are stored and shipped in stacked relation (R. 185-86). In such stacked'relation, the cups are adapted to be placed in a manual dispensing device (R. 186). Generally, the lowermost cup in a stack is grasped by the user and physically separated from the stack (R. 186). For those cups designed to be used with a rigid plastic holder at fountains, cafeterias and the like, the holder engages the uppermost cup in a stack so that it can be physically removed from the stack and used as desired (R. 186-88). For the dairy market, economy of storage, shipping space, and ultimate usage dictate that the plastic tubs be disposed in stacked relation, with freedom to be separated. The plastic tubs arrive at the dairies in stacks which are manually dropped or placed into chutes that guide the tubs into a dispenser mechanism (R. 188). This mechanism permits separation of the lowermost tub from the stack and thereafter, under the force of gravity, the tub drops onto a conveyer which then conveys the tub to a filling station where the tub is filled with, the food product (R. 188). Thereafter, the filled tub is conveyed to a cap-per station where the tub is capped with a plastic lid (R. 188-89). Finally, the capped tub is conveyed to a cooler or to a packaging station where the filled tub is manually or mechanically placed in cartons or cases for shipment (R. 189-90). The tub, filled with the food product, is usually trucked to supermarkets and stored on shelves until purchased by the housewife (R. 189-90). Plastic containers that are tightly wedged or jammed together cannot be separated and dispensed by the dispenser mechanism, with the result in the dairies an attendant must clear the dispenser, and in the vending industry a service call is required to clear the machine (R. 190-92). In the over-the-counter and home consumer market, if two cups stick together, either two cups will be dispensed at double cost, or service is delayed by manual separation of the cups (R. 190). In any event, regardless of the final application and/or usage, in accordance with Edwards ’213 and ’360 inventions, the thin-walled plastic containers are maintained in stacked relation throughout shipment, storage, and handling, thereby permitting eventual easy and dependable dispensing and separation of the containers (R. 192-94). IV. DEVELOPMENT OF THE EDWARDS SELF-VENTING PACKAGE INVENTION As stated above, prior to ITW’s entry into the container field, the container industry for many years had been making paper tubs, either plain or wax-coated, for the dairy food industry (PX-14, R. 69). These companies also sold a lid or closure, made either from paper, metal or plastic, which was used to cap the tub after it was filled with cottage cheese or other dairy food products (R. 168). When, pursuant to its market studies, ITW decided to expand its thermoforming operations into the dairy food market in 1958-59 (R. 162), it began to make and sell an all-plastic cottage cheese tub (PX-47); (R. 162-65). At that time, ITW did not make any kind of lid and, therefore, its customer, the Borden Company, purchased a plastic lid (PX-49) made by Lily-Tulip Cup Corporation for use with plaintiff’s cottage cheese tub (R. 168-69, 525). A short time after the Borden Company began packaging its cottage cheese in plaintiff’s tubs with Lily-Tulip’s lids, Borden received many complaints about “popping” lids (R. 169-70). This was an unexpected circumstance because “popping lids” had not been encountered as a problem in the use of sealed paper tubs. The popping was generally believed to result from the internal pressure of gas generated by the cheese. It was also observed that, after filling and capping at the dairy, the lids would pop off during handling, shipment, or storage prior to purchase by the consumer (R. 169-70, 525-27). It was observed that, since the filled packages were stacked one on top of another, a bump or jarring force caused one of the containers to bounce on top of another, thereby causing a lid to pop off (R. 338-40, 345, 528, 937-38). The “popping lids” obviously spoiled the sanitary condition of the package and rendered the cottage cheese unsalable (R. 170). ITW’s Bryant Edwards was assigned the task of solving the “lid-popping” problem, which was attributed to either trapped air or a pressure increase (R. 170-73, 339-40, 532, 534-35). The first thing Edwards did was to design a lid (PX-50, PX-52) which would prevent air from being trapped in the package during the capping operation (R. 173, 529). While the lid successfully prevented “trapped air”, it did not stop the lid-popping difficulty (R. 173, 530, 898-99). Bryant Edwards then concluded that the solution to the problem required a lid that normally would seal a plastic package to prevent leakage of liquid and admission of air, but which, in response to internal gas pressure, would permit gas to escape from the package and then would promptly reseal the package when the pressure was relieved — and would have the ability to repeat this gas-venting action whenever necessary (R. 173). In October, 1959, Edwards developed a self-venting plastic package which sealed the plastic package and preserved the sanitary condition of the package and, at the same time, permitted any gas under pressure in the package to vent to the atmosphere, and which thereafter resealed the container — all without axial dislodgment of the lid (R. 173-74). Edwards was able satisfactorily to accomplish this by a novel configuration of the engaging areas of the tub and lid, notwithstanding the flexible and delicate characteristic of these areas due to the thin-wall plastic material. Edwards made or had made drawings of his self-venting plastic lid invention, dated as early as October 29, 1959 (PX-52, PX-53, PX-55; R. 530-31). As early as October 26, 1959, Edwards made a sample of his self-venting plastic lid invention (PX-51; R. 173-178, 420). On November 4, 1959, Edwards made a sample of another form of his plastic lid invention (PX-54; R. 531-32). On December 16, 1959, Edwards added a secondary venting feature to his self-venting invention (PX-56; R. 194-96, 420). Inasmuch as ITW did not have shallow-draw or lid printing equipment, it had the Kleer-Plastics Co., on a subcontract basis, make the lids in accordance with Edwards’ self-venting lid invention (R. 536-38). When ITW’s customers used Edwards’ inventive lids (OX-51 through 56) with ITW’s cottage cheese tubs (PX-47, PX-48), they no longer encountered the “lid-popping” problem (R. 176, 536-37). This was and is attributable to Edwards’ self-venting package invention, which (1) is embodied in Edwards’ PX-51 lid and PX-47 tub, (2) is disclosed and claimed in the '139 patent in suit, and (3) found in Foster Grant’s accused plastic packages. V. COMMERCIAL SUCCESS OF EDWARDS’ NESTABLE CONTAINER AND SELF-VENTING PACKAGE INVENTIONS The all-plastic containers and packages sold by ITW and its domestic licensees have enjoyed commercial success. That the ITW containers embody the Edwards nestable container and self-venting package inventions is unrefuted in the record (R. 835-38; PX-150, PX-153, PX-157). It is apparent that the commercial success is attributable to the Edwards nestable container inventions and not to other factors. With respect to ITW’s and its licensees' plastic containers, in each case it is Edwards’ container inventions which maintain the cups in proper stacked relationship. If the cups are delivered to the customer in a jammed or wedged condition, the user incurs additional expense and aggravation (R. 190-92), and if lids pop off the package, the product is unsanitary (R. 170). These customers have a preference for the containers and packages embodying Edwards’ container inventions and are satisfied with their accomplishments and performance. A. The ’213 Patent ITW’s sales of its plastic containers (PX-33, PX-48, PX-150) embodying the Edwards ’213 container invention have been significant. During the past 14 years, ITW has made and sold in excess of 950,000,000 containers (PX-147A) under the '213 container invention. The sales by ITW’s domestic licensees (PX-151) have been even more significant. Through September of 1972, the domestic licensees have sold in excess of 2.600.000. 000 containers (PX-147A) embodying the ’213 invention (R. 300). ITW’s domestic licensees have paid ITW over $1,234,000.00 in royalties for the ’213 container invention (PX-147A, PX-151, R. 1309-12). B. The ’360 Invention ITW’s sales of containers embodying the ’360 invention have been considerable. Since 1958, ITW has produced about 3,600,000,000 containers embodying the ’360 invention (PX-148A, PX-153, R. 1312). ITW’s domestic licensees have sold over 4,000,000 containers embodying the ’360 invention (PX-153, PX-154, PX-148A). ITW’s domestic licensees have paid ITW a total of approximately $520,000.-00 in royalties under the ’360 invention through September of 1972 (PX-148A, PX-153, PX-154). C. The ’139 Invention ITW has sold over 860,000,000 packages embodying the '139 self-venting package invention (R. 1314-15, PX-149). ITW’s licensees have sold over 366.000. 000 packages and/or lids embodying the ’139 invention (PX-149, R. 1315). ITW’s licensees have paid over $381,000.00 in royalties to ITW under the '139 invention (R. 1315). VI. RECOGNITION OF VALIDITY OF PLAINTIFF’S ’213, ’360, AND ’139 PATENTS The validity of the ’213 patent in suit was vigorously contested in the ITW v. Continental Can action, No. 65 C 2179, but was sustained by both this Court (273 F.Supp. 94) and the Seventh Circuit Court of Appeals (397 F.2d 517). Notwithstanding the Continental Can decision, Sweetheart Plastics, Inc. again contested the validity of the ’213 patent in the ITW v. Sweetheart action. Again, the District Court upheld the validity of the ’213 patent (306 F.Supp. 364) and the Seventh Circuit Court of Appeals again affirmed (436 F.2d 1180). Thus the Seventh Circuit has twice held the ’213 patent valid. The validity of the ’360 patent was also in issue in the Sweetheart case. Its validity was upheld by both the District Court and the Seventh Circuit Court of Appeals (436 F.2d 1180). The ’139 patent was also in issue in the Continental Can case and its validity was sustained by both the District Court and the Seventh Circuit Court of Appeals. VII. FOSTER GRANT INFRINGES THE ’213 PATENT ITW charges that all of Foster Grant’s cups having continuous Z-shaped stacking rings, represented by the PX-61, PX-62, and PX-63 cup groups, infringe one or more of the asserted claims 1, 2, 3, 5, 6, 7, 8 and 9 of the ’213 patent. A. The Wilson-Dow Cup and the PX-61 Cup Group The Wilson-Dow cup is represented by the PX-61 cup group (no longer in commercial production). This PX-61 cup group, in turn, is represented by its “chairman”, the Wilson-Dow 12-ounee cup (PX-61A-1). This cup “chairman” (PX-61 A-l), like each member of this PX-61 cup group, has a Z-shaped stacking ring in the lower part of the sidewall. ITW’s Edwards prepared claim chart PX-68 (in PX-72) which shows how the elements of Claim 1 of the ’213 patent read on the Fig. 1 embodiment of the ’213 patent. He further prepared claim chart PX-69 (in PX-72) which demonstrates how each of the elements of Claim 1 of the ’213 patent read on the Wilson-Dow cup “chairman” (PX-61 A-1) (R. 639-41). This same claim chart, PX-69A, shows how the stacking ring element of Claim 1 reads on the stacking ring embodied in the Wilson-Dow cup “chairman” (PX-61A-1) (R. 640). Edwards further recited how Claim 1 applies both structurally and functionally to the Wilson-Dow cup “chairman” (PX-61A-1) (R. 641-43). In this connection, because Edwards did not have á stack of any of the Wilson-Dow cups, he relied upon his experience in the thin-wall plastic cup field to confirm that the stacking ring in the Wilson-Dow cup “chairman” performed (1) its intended shock absorbing function of protecting the stack from axial impact, and (2) its intended stacking function of preventing jammed cups (R. 641-43). Edwards also testified how each of the asserted claims reads on and is infringed by the Wilson-Dow cup “chairman” (PX-61 A-1) (R. 643-46). Despite the contrary testimony of Foster Grant’s expert witness, Mr. Johnson, the Court finds Edwards’ conclusions compelling and adopts them. Foster Grant’s contentions that the Wilson-Dow cup group (PX-61) does not infringe Claims 1, 5, 6 and 9 are without merit. With respect to the Wilson-Dow cup group (PX-61) there is a real identity of means, operation, and result between the asserted claims, and the Wilson-Dow cup group (PX-61) infringes these asserted claims of the ’213 patent. B. The Wilson-Foster Grant Cup and the PX-62 Cup Group The Wilson-Foster Grant cup is represented by the PX-62 cup group (no longer in commercial production). This PX-62 cup group, in turn, is represented by its “chairman”, the Wilson-Foster Grant 32-ounce cup (PX-62A-l). This cup “chairman” (PX-62A), like each member of the PX-62 cup group, has a continuous Z-shaped stacking ring located immediately below the rim in the sidewall. ITW’s Edwards prepared claim chart PX-70 (in PX-72) which shows how the elements of Claim 1 of the ’213 patent read on the Wilson-Foster Grant cup “chairman” (PX-62A-1) (R. 646-47). This claim chart demonstrates how the stacking ring element of Claim 1 reads on the stacking ring embodied in the Wilson-Foster Grant cup “chairman” (PX-62A-l) (R. 647-48). In this connection, because Edwards did not have a stack of these cups, he relied upon his experience in the plastic cup field to confirm that the stacking ring in the Wilson-Foster Grant cup “chairman” performed (1) its intended shock absorbing function of protecting the stack from axial impact, and (2) its intended stacking function of preventing jammed cups (R. 648-49). Edwards also testified how each of the asserted claims reads on and is infringed by the Wilson-Foster Grant cup “chairman” (PX-62 A-l) (R. 650-57). Despite the contrary testimony of Foster Grant’s expert witness, Johnson, the Court adopts the testimony and conclusion of Edwards that the Wilson-Foster Grant cup group (PX-62) infringes Claim 1 of the ’213 patent, and concludes further that the Wilson-Foster Grant cup group (PX-62) infringes Claims 5, 6 and 9 of the ’213 patent. With respect to the Wilson-Foster Grant cup group (PX-62) there is a real identity of means, operation and result between the PX-62 group and the asserted claims of the ’213 patent. Clearly, the asserted claims of the ’213 patent are infringed by the PX-62 cup group. C. The Foster Grant Current Commercial Cup and the PX-63 Cup Group The Foster Grant current commercial cup is represented by the PX-63 cup group. This PX-63 cup group, in turn, is represented by its “chairman”, the Foster Grant 12S cup (PX-63A-1). This cup chairman (PX-63A-l), like each member of the PX-63 cup group has a continuous Z-shaped stacking ring located immediately below the rim in the sidewall. ITW’s Edwards prepared claim chart PX-71 A (in PX-72) which shows how the elements of Claim 1 of the ’213 patent literally read on the Foster Grant current commercial cup “chairman” (PX-63A) (R. 590-93). This claim chart PX-71 (in PX-72) specifically shows how the stacking ring element embodied in the Foster Grant current commercial cup “chairman” (R. 593-619). In this connection, Edwards conducted inking tests, statis load compression tests, comparator load tests, and drop tests on the chairman of this group (R. 600-611, 658). He confirmed that the stacking ring had the claimed characteristics and performed (1) its intended shock absorbing function of protecting the stack from axial impact, and (2) its intended stacking function of preventing jammed cups (R. 602-11). Edwards also testified how each of the asserted claims reads on and is infringed by Foster Grant's cup “chairman” (PX-63A) (R. 619-626). More specifically, Edwards prepared claim chart PX-71 AA (in PX-72) to demonstrate how the elements of Claim 6 of the ’213 patent read on the Foster Grant cup “chairman” (PX-63A) (R. 620-22). He explained how the claimed camming element was embodied in the Foster Grant cup “chairman” (R. 621-22). It is evident from the ’213 patent and its file history that Claim 1 defines Edwards’ container invention over a container having, a rim stacker (R. 1150-1155). In a rim stacker, the rim structure itself comprises the upper shoulder and no shelf or support structure is provided apart from, in addition to, and spaced below the rim, as defined in Claim 1. In contrast to the prior art containers having prior rim stackers, the Foster Grant cup “chairman” (PX-63A) has its Z-shaped stacking ring provided as a separate element located apart from and spaced below the rim. The pertinent language of Claim 1 of the ’213 patent applies to Foster Grant’s current commercial cups. Specifically, Claim 1 of the ’213 patent calls for a “rim of predetermined axial extent which is of sufficient increased lateral width ... to lend required lateral strength to said open upper end.” This language reads upon the crown or upper part of the cup. Between the “rim” and an upper shoulder of the stacking ring is a wall portion extending in the same general upwardly direction as the side wall. The angle of the “wall portion” on Foster Grant’s current commercial cups is 9° 38", which is almost identical to the side wall which is 9° 30" (PX-63A-2, R. 2606). Beneath the “rim” and the “wall portion” is the upper shoulder or shelf of the stacking ring, designated as “stacking ring”. Thus, each of Foster Grant’s current commercial accused cups has a “rim of predetermined axial extent” and “a stacking ring means . . . positioned below and spaced axially from said upper rim . . . (and having) an axial extent greater than the axial extent of the rim portion”, as called for by asserted Claim 1. The stacking ring in Foster Grant’s current commercial cup has the same means, identity, and result as the Edwards’ claimed stacking ring. Foster Grant relies on a statement in the specification of the ’360 patent to equate lip and rim. The statements in the specification of the ’360 patent are irrelevant to the claims in the ’213 patent. The Court does not consider the lip to be the rim, but rather to be a separate entity attached to the rim. Irrespective of the definition of rim used, the stacking ring in Foster Grant’s current commercial cups has an axial height greater than the axial extent of the rim and infringes this element of the ’213 claims. Further, the ’213 claims call for the stacking ring means to have an “axial extent greater than the axial extent of the rim portion.” This element refers to “rim portion” and not to “rim” or “upper rim” used in the earlier claim language. Thus, it follows that the “rim portion” was intended to cover structure other than “rim” — and it is reasonable to conclude that “rim portion” embraces all of the portions associated with the rim, namely, the downwardly extending flange or the under-curled lip. Parenthetically, the rim element is defined as “a rim of predetermined axial extent which is of sufficient increased lateral width ... to lend required lateral strength to said open upper end.” There is no reference in the claim to the axial extent being predetermined to fit into the “mechanisms in the vending machines”. The claim element simply requires that the “rim be of predetermined axial extent which is of increased lateral width ... to lend required lateral strength to the open upper end.” This language is in accordance with the definition of rim in Claim 1. Relying upon the prosecution histories of the various patent applications relating to the ’213 and ’360 patents, Foster Grant develops a “file wrapper estoppel” argument. In support of its estoppel argument, Foster Grant alludes to the original specification. Reference to the specification is irrelevant, since it is the claims of the ’213 patent which are in issue. Foster Grant also refers to the C.I.P. application (PX-7) and to the rim stacking embodiment of Fig. 21. However, any reference to this embodiment, which was specifically deleted by ITW’s attorneys in accordance with the Rules of the Patent Office, is irrelevant. Similarly, Foster Grant's analysis of the prosecution history of the C.I.P. specification (PX-7) which matured into the ’360 patent is irrelevant. The prosecution history leading to the allowance of different claims in the ’360 patent is also irrelevant to the scope of the claims in the ’213 patent. Foster Grant also relies upon the prosecution history of the ’213 patent (PX-6) and suggests that Claim 1 was allowed only because the pending claim was amended to add the “rim” element and the “stacking ring means . positioned below and spaced axially from said upper rim.” Actually, by the final amendment, the claim was “amended” in a variety of ways, not in the single way suggested by Foster Grant, and further, the claim was amended to distinguish over all of the references previously cited by the Patent Office, not to distinguish solely over the Aldington patent as suggested by Foster Grant. Under the remarks in the final amendment, ITW’s attorneys flatly stated “This amendment is being submitted after careful consideration of the newly cited patent to Aldington and after a very careful review of all of the references of record in this application.” The Court finds no file wrapper estoppel which prevents the asserted claims from being infringed by Foster Grant’s current commercial cups. Foster Grant’s witness, Mr. Johnson’s contention is that the Foster Grant cup “chairman” (PX-63A-1) does not have an “intermediate section of the stacking means inclined inwardly and upwardly” to provide a “Z” configuration (R. 2119-20). This contention is apparently premised on Foster Grant’s use of an “S”-shaped stacking ring. However, the “S”-shaped stacking ring does embody the “Z” characteristic (configuration) as defined by the claim itself. The pertinent claim language applies to Foster Grant’s current commercial cup. The intermediate section does have at its lower extremity “internal shoulder means.” The intermediate section is “inclined inwardly and upwardly . to provide a thin wall resilient support. . . .” The language of Claim 1, on its face, is broad enough to cover either Z-shaped or S-shaped supports for the internal shoulder means. The claim calls for the “support converging toward the cup axis from bottom to top sufficiently to increase lateral strength of the stacking ring means and to increase radial extent of the internal shoulder means.” This claim language responds to the intermediate support in Foster Grant’s current cup that must and does converge toward the cup axis to perform the desired function of increasing lateral strength and radial extent. Foster Grant’s current cup (PX-63) has an S-shaped stacker embodying the Z-characteristie specifically defined in Claim 1. Further, the intermediate section of the Foster Grant current commercial cup is generally or substantially “inclined inwardly and upwardly toward the cup axis.” The intermediate section in the stacking ring in the Foster Grant cup has, immediately above the lower shoulder: first, a generally vertical portion ; then an inwardly and upwardly inclined portion; then a vertical portion which joins the upper shoulder means. Foster Grant contends that, under the patent in suit, the intermediate section of the stacking ring must be “more resilient than [that of] the container” (R. 2132) or the claimed stacking devices to “be more resilient than other stacking devices.” (R. 2132) There is nothing in Claim 1 requiring the intermediate section to be “more resilient” than either the container or any other stacking device. Finally, the contention that the intermediate section is not “inclined inwardly and upwardly” is without merit. The Foster Grant cup “chairman” (PX-63A-1) has an intermediate section “in-dined inwardly and upwardly.” Foster Grant’s current commercial cup group (PX-63) infringes Claim 1 of the ’213 patent. Foster Grant contends that Claims 5, 6, 8 and 9 of the ’213 patent are not infringed, because at least one of the shoulder means is not “adapted for camming engagement” and does not “enhance axial resiliency to a stack. .” Foster Grant contends that none of the Foster Grant current commercial cups “had the characteristics, in compression, of the various ITW containers. . . .” This is not the test. On the contrary, the test is whether the accused cups have the claimed “camming engagement” and “axial resiliency”. On this point, the evidence demonstrates that the Foster Grant current commercial cups had camming action, their stacks compressed in response to axial forces, and were axially resilient (R. 2348, 2553-56, 2626-27, 2633). Moreover, in Foster Grant’s patent (PX-98), it is admitted that when “nested containers are compressed in an axial direction, an appreciable amount of ‘give’ or resiliency is present due to the sliding of adjacent containers” (Col. 4, 1.39-41). Whether these Foster Grant cups have more or less camming engagement or more or less axial resilience than other cups is irrelevant. In regard to Claims 8 and 9, Foster Grant challenges both claims, on the ground that the stacking ring in the current commercial cups cannot be “sinuous” (Claim 8) and its shoulder be a “straight line” (Claim 9). This misconstrues the language of Claim 9, since Claim 9 calls for the shoulder presenting a “substantially straight line”, not a straight line. Both Claims 8 and 9 can be asserted without any inconsistency. Further, the cross-section of the stacking ring in Foster Grant’s current commercial cups is “sinuous”, as called for by Claim 8, and the shoulder means are each “a substantially straight line”. Foster Grant’s current commercial cup group (PX-63) infringes Claims 5, 6, 8 and 9 of the ’213 patent, and there is av real identity of means, operation, and result between the asserted claims of the ’213 patent and the PX-63 cup group. VIII. FOSTER GRANT INFRINGES THE ’360 PATENT ITW charges that all of Foster Grant’s cups having interrupted Z-shaped stacking rings, represented by the PX-74 and PX-75 cup groups, infringe one or more of the asserted Claims 1 and 3 of the ’360 patent. The Wilson-Champion cup is represented by the PX-74 cup group (no longer in commercial production). This PX-74 cup group, in turn, is represented by its “chairman”, the Wilson-Champion 12-ounee cup (PX-74A). This cup “chairman” (PX-74A), like each member of this PX-74 cup group, has an interrupted Z-shaped stacking ring located immediately below the upper margin in the sidewall. ITW’s claim chart PX-79A (in PX-82) shows how the elements of Claim 1 of the ’360 patent read on the Fig. 1 embodiment in the ’360 patent (R. 669-75). ITW further introduced claim chart PX-80A (in PX-82) which demonstrates how the elements of Claim 1 of the ’360 patent apply to the Wilson-Champion cup “chairman” (PX-74A) (R. 714-15). This same claim chart, PX-80A, shows how the stacking ring element of Claim 1 reads on the stacking ring embodied in the Wilson-Champion cup “chairman” (PX-74A) (R. 715-16). I find that each of the asserted claims reads on and is infringed by the Wilson-Champion cup “chairman” (PX-74 A) (R. 716-19). With respect to the Wilson-Champion cup group (PX-74), there is an identity of means, operation and result between the asserted claims of the ’360 patent and the PX-74 cup group. The asserted claims of the ’360 patent are infringed by the PX-74 cup group. Foster Grant has asserted a Statute of Limitations defense under 35 U.S.C. § 286. ITW contends that this six-year Statute of Limitations is not applicable, since ITW had asserted, by the filing of its complaint in 1969, that the Wilson-Champion cups were infringements. Although the complaint at that time did not charge Foster Grant with infringement of the ’360 patent, it did, based on the information known to ITW at that time, charge Foster Grant with infringement of the ’213 patent. Rule 15(c) of the Federal Rules of Civil Procedure states that an amended pleading “relates back to the date of the original pleading” “whenever the claim or defense asserted in the amended pleading arose out of the same conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” This rule does not apply here. An alleged infringement of one patent is not the “same conduct, transaction or occurrence” as the alleged infringement of another patent. The statute of limitations applies to and bars ITW from recovering for the infringement of Claims 1 and 3 of the ’360 patent resulting from the manufacture and sale of the above-described Wilson-Champion cups. The Foster Grant current commercial cup is represented by the PX-75 cup group. This PX-75 cup group, in turn, is represented by its “chairman”, the Foster Grant 16 SWV cup (PX-75A). This cup “chairman” (PX-75A), like each member of the PX-75 cup group, has an interrupted Z-shaped, stacking ring located immediately below the upper margin in the sidewall. ITW’s Edwards prepared claim chart PX-81A (in PX-82) which shows how the elements of Claim 1 of the '360 patent read on the Foster Grant current commercial 16 SWV cup “chairman” (PX-75A) (R. 685-86). This claim chart PX-81A (in PX-82) shows how the stacking ring element applies to t'he stacking ring element embodied in the Foster Grant current commercial cup “chairman” (R. 685-91). Edwards further recited how Claim 1 applies both structurally and functionally to Foster Grant’s “chairman” (R. 685-91). In this connection, Edwards identified the interruptions in the interrupted stacking ring in this “chairman” (PX-75A-4) (R. 692), and discussed manometer air communication tests he had conducted. He confirmed that the interrupted stacking ring in the Foster Grant current commercial 16 SWV cup “chairman”: (1) performed its intended shock absorbing and jam prevention function, and (2) provided air communication between adjacent cups in accordance with the interrupted characteristics of the ’360 patent (PX-105) (R. 692-711). Edwards also testified how each of the asserted claims reads on and is infringed by Foster Grant’s cup “chairman” (PX-75A-1) (R. 711-14). The Court concurs in and adopts these conclusions of Edwards. The Foster Grant current commercial cup group (PX-75) infringes claim 1 of the ’360 patent. Dependent claim 3 reads on and is infringed by the current commercial cup group (PX-75). With respect to the Foster Grant current commercial cup group (PX-75), there is a real identity of means, operation and result between the asserted claims of the ’360 patent and the PX-75 cup group. The asserted claims of the ’360 patent are clearly infringed by the PX-75 cup group. IX. FOSTER GRANT INFRINGES ' THE ’139 PATENT ITW charges that all of Foster Grant's packages (represented by the Wilson-Dow cup “chairman” and associated lid, the Wilson-Champion cup “chairman” and associated lid, the Wilson-Foster Grant cup “chairman” and associated lid, and the Foster Grant current commercial cup “chairman” and associated lids), infringe one or more of the asserted claims 1, 2, 6 and 7 of the ’139 patent. The Wilson-Dow, Wilson-Champion, and Wilson-Foster Grant packages are represented by their respective cup “chairmen” (PX-61A, PX-74A, and PX-62A) and their associated lids (PX-84 or 85). Because of the unavailability of lids, Edwards relied upon the lid drawings PX-84 and 85 to make drawings of the above packages. Foster Grant points out that there was some confusion as to the specific lid, including dimensional details, that was used with the Wilson-Dow, Wilson-Champion, and Wilson-Foster Grant packages. Nevertheless, Thomas Eyles, Foster Grant’s designer, testified that lids of the same configuration as that shown in PX-85 were used with all of the early containers (PX-104B, pp. 110-111). It is clear that the lids shown in PC-88, PX-89 and PX-90 conform to that general configuration. Edwards prepared claim chart PX-94 (in PX-97) which shows how the elements of Claim 1 of the ’139 patent read on the Fig. 1 embodiment of the ’139 patent and on the Wilson-Dow package (R. 782-84). Edwards further prepared claim chart PX-95 (in PX-97) which shows how the elements of Claim 1 of the ’139 patent read on the Wilson-Champion and Wilson-Foster Grant package (R. 789-91). These claims charts PX-94 and 95 demonstrate how the sealing means portions and integral combination holding and venting means portion of Claim 1 read on the comparable structure in these Wilson-Dow, Wilson-Champion, and Wilson-Foster Grant packages (R. 789-91). The Court adopts these conclusions and finds that the Wilson-Dow package infringes asserted claims 1, 2, 6 and 7 of the ’139 patent and that the Wilson-Champion and Wilson-Foster Grant packages infringe claims 1, 2, and 6 of the ’139 patent (R. 786-89, 792-94). There is an identity of means, operation and result between the asserted claims of the ’139 patent and the Wilson-Dow, Wilson-Champion and Wilson-Foster Grant package groups. The asserted claims of the ’139 patent are infringed by the Wilson-Dow, Wilson-Champion and Wilson-Foster Grant package groups. The Foster Grant current commercial packages are represented by the Foster Grant current commercial 12S cup “chairman” (PX-63A-1) and its associated lid and the Foster Grant current commercial 16 SWV cup “chairman” (PX-75A-1), (except 20 PB and 24TB), and its associated lid. The 12S and 16SWV cup “chairmen” (PX-63A-1 and PX-75A-1) with their associated lids are deemed to be representative of the various cups and associated lids within their respective groups. Edwards prepared claim chart PX-96A (in PX-97) which shows how the elements of Claim 1 of the ’139 patent read on each of the Foster Grant current commercial packages (R. 761-62). This claim chart PX-96A demonstrates how the sealing means portions and integral combination holding and venting means portion of Claim 1 read on the comparable structure in these Foster Grant current commercial packages. (R. 761-62). Edwards further recited how Claim 1 applies both structurally and functionally to the Foster Grant current commercial packages (R. 762-66). In this connection, Edwards testified that his manometer test (PX-105) established that the accused packages would “seal, vent, and reseal” (R. 767-78). Edwards explained that when a lid was placed on the cup “chairman”, the reading of the manometer increased, thereby indicating that the package “sealed”. In response to the application of air to the package, the manometer reading gradually increased until it reached a predetermined level, which indicated “venting”. Thereafter the manometer reached a final value, which indicated that it has “resealed”. (R. 767-78). Edwards also testified how the asserted claims 1, 2 and 6 are infringed by the Foster Grant current commercial packages (R. 780-82). The Court concurs in and adopts Edwards’ conclusions. Foster Grant asserts that its package is designed to avoid trapped air. This contention is not controlling as to whether the Foster Grant package infringes the ’139 claims. The sole inquiry is whether the Foster Grant package embodies the Edwards invention ,(e. g., sealing, venting, and resealing). The fact that the accused structure performs functions in addition to that performed by the patented structure will not avoid infringement. The Foster Grant package has the Edwards capability of sealing, venting and resealing (R. 2561-62). Furthermore, in Foster Grant’s patent (PX-98), it is admitted that the ribs 34 provide “for venting of the container during application of a closure and for allowing gases to escape, if any are generated by the contents during storage. (Col. 4, 1.19-22). Foster Grant cannot now contend that only the first purpose (i. e., avoiding trapped air) is achieved. Foster Grant asserts that it does not infringe the asserted claims because it neither makes, uses, nor sells “packages”. The Court disagrees. Foster Grant is selling both cups and lids (both imprinted with its customer’s name and cottage cheese designation) to its customers who, with the blessing of Foster Grant, form the “packages” in the United States. Foster Grant manufactures its cups and lids for the specific purpose of selling them to its customers. Foster Grant has no internal organization for packing cottage cheese in its cups and lids, and thus manufactures them “to order” for its customers (R. 2560-61). In addition, it provides the required customer service to ensure proper use of the Foster Grant cups and lids for the packing of cottage cheese (R. 1968, 2561). In every pertinent sense, Foster Grant has contemplated the use of its products as a package and has aided in the assembly. Foster Grant’s accused packages in their intended environment of use, namely, for packaging cottage cheese, embody the structure defined by the asserted claims and, thus, are infringing devices. That Foster Grant's accused packages were designed for use with, and actually have been used for, packaging cottage cheese and similar dairy products has been fully established in the record (PX-98, Col. 1, lines 26-28, R. 2561). A further Foster Grant non-infringement position is that its current commercial package does not have both “a portion offset radially outwardly .” (i. e., a groove) and “an integral combination holding and venting means portion adapted to be associated with said radially offset portion. .” Foster Grant admits that its package has a “portion . . . offset radially outwardly . . .” (i. e., a groove), but denies that it has the integral combination holding and venting means portion that cooperates with “the radially offset portion”. This conclusion depends upon reading the “integral combination holding and venting means portion” solely on “a slot or hole”. I conclude that the integral combination holding and venting means portion directly reads on both “slot or hole” and the inwardly extending portion (i. e., the barb) (R. 761-62). The slots in the cup coact with, cooperate with, and are “associated with” the groove in the cup. Foster Grant concludes its non-infringement argument by relying on alleged “new evidence”