Eclectic Products, Inc. v. Painters Products Inc.

Filing 59

Opinion and Order. The 962 Patent is declared invalid and unenforceable and this action is dismissed with prejudice. Signed on 3/2/2015 by Chief Judge Ann L. Aiken. (plb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ECLECTIC PRODUCTS, INC., an
Oregon domestic business
corporation,
Plaintiff,

v.
PAINTERS PRODUCTS, INC.,
a California domestic business
corporation,
Defendant.

Dennis W. Percell,
Erin E. Gould,
Arnold Gallagher, P.C.
800 Willamette Street, Suite 800
Eugene, Oregon 97401
Alex C. Johnson, Jr.
Kelly R. Lusk
Marger Johnson & McCollom, P.C.
210 SW Morrison Street, Suite 400
Portland, Oregon 97204
Attorneys for plaintiff
James C. Chaney
The Chaney Firm LLC
777 High Street, Suite 280
Eugene, Oregon 97401
Attorney for defendant
Page 1 - OPINION AND ORDER

Case No.

6:13-CV-02181-AA
OPINION AND ORDER

AIKEN, Chief Judge:
The Court is called upon to construe a design patent for an
applicator cap on a tube dispenser used for spackling paste, U.S.
Design Patent D4 8 2, 962
Products, Inc.

Products,

judgment

as

u.s.c.

§

9 62

Patent") .

Plaintiff Eclectic

("Eclectic") brought this action against defendant

Painters

to

enforceable,

("the

("Painters"),

Inc.

whether

defendant's

seeking

962

a

Patent

declaratory

is

valid

and

and whether plaintiff has infringed on it under 35

271.

In response,

Painters asserts its patent is valid

and that Eclectic infringed on it.

Def.'s Cl. Construction Br. 1.

On F~bruary 22, 2014, the Court held a claim construction hearing.
Based on the parties' briefs, other filings,

and oral arguments,

the Court holds the design patent invalid for indefiniteness.
STANDARD

In a patent case, a court first must construe the patent claim
before

the

Markman v.

trier

of

fact

can

decide

Westview Instruments,

(Fed. Cir. 1995) (en bane).

Inc. ,

issues

of

infringement.

52 F. 3d 967,

97 0,

97 7-7 9

"The construction of claims is simply

a way of elaborating the normally terse claim language in order to
understand

and

explain,

but

not

to

change~

the

scope

of

the

claims." Embrex, Inc. v. Service Engineering Corp., 216 F.3d 1343,
1347

(Fed.

omitted).

Cir.

2000)

(citation

and

internal

quotation

Claim construction is a matter of law,

construction

differ

depending

utility or a design patent.
Page 2 - OPINION AND ORDER

on

whether

Markman,

the

and rules of

case

52 F. 3d at

marks

concerns

97 9;

a

Egyptian

Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 679 (Fed. Cir. 2008).
Under U.S.

patent laws,

utility patents cover "new and useful"

inventions while design patents protect only the appearance of
inventions, specifically, "new, original and ornamental design[s]"
for

articles

of

manufacture.

International Seaway Trading Corp.
12 33,

12 38

(Fed.

design patents).

Cir.

provide

v.

§§

171;

101,

Walgreens Corp.,

(contrasting

see

58 9 F. 3d

utility patents

with

In design patents, inventors define their claims

with illustrations.
must

2 00 9)

u.s.c.

35

37 C.F.R. § 1.152.

detailed

verbal

Although courts typically

construction

of

utility

patents,

courts are encouraged to forgo that for design patents and rely on
patent illustrations as much as possible.

Egyptian Goddess,

v.

Cir.

Swisa,

Inc.,

543 F. 3d 665,

679

(Fed.

2008).

Inc.

Both the

Supreme Court and the Patent and Trademark Office have recognized
that a design is better represented by an illustration "than it
could be by any description and a description would probably not be
intelligible without the illustration."

Dobson v.

Dornan,

118

U.S. 10, 14 (1886); Manual of Patent Examining Procedure§ 1503.01
(8th ed. 2006) ("as a rule the illustration in the drawing views is
its own best description").

Nonetheless, a court has discretion to

provide verbal elaboration if

"necessary or helpful."

Egyptian

Goddess, 543 F.3d at 680.
Courts may also determine whether patents are invalid for
indefiniteness as part of their "duty as the construer of patent
claims."

Exxon Research & Eng'g Co.

v.

United States,

265 F.3d

1371, 1376 (Fed. Cir. 2001) abrogated on other grounds by Nautilus,
Page 3 - OPINION AND ORDER

Inc. v. Biosig Instruments,

Inc.,

134 S. Ct. 2120

Inc. v. Lawson Software, Inc., 700 F.3d 509, 517

(2014); ePlus,

(Fed. Cir. 2012)

("indefiniteness is a question of law and in effect part of claim
construction") .

Claim construction generally resolves disputes

over the meaning of the patent, but, in some cases, the patent is
"so

lacking

in

clarity

as

to

be

Personalized Media Commc'ns, LLC v.
696,

705

(Fed.

Cir.

1998).

invalid

as

indefinite."

Int'l Trade Comm'n,

161 F.3d

Because patents are presumed to be

valid, the challenger bears "the evidentiary burden to show facts
supporting a conclusion of invalidity" by "clear and convincing
evidence."

Young v. Lumenis, 492 F.3d 1336, 1344 (Fed. Cir. 2007).
BACKGROUND

In 1994, Kurtis Koptis received a design patent for a tube
dispenser with a sponge applicator tip and clear plastic cap, U.S.
Design Patent D351,338

("the 338 Patent"), 1 and two years later,

he obtained a utility patent for the same invention, U.S. Utility
Patent 5,577,851 ("the 851 Patent") . 2

Pl.'s Cl. Construction Br.

Ex. #4, at 2 and Ex. #7, at 2; Def.'s Cl. Construction Br. Ex. #1,
at 3-5.

Koptis assigned patent rights to his company,

Products,
gave

and in 1996,

Eclectic

Products

Painters

Painters entered into an agreement that
"the

exclusive

license

to manufacture,

distribute, market and sell a nail hole filler spackling compound

The complete 338 Patent is attached hereto as Appendix 1.
2

The complete 851 Patent is attached hereto as Appendix 2.

Page 4 - OPINION AND ORDER

using the Dispenser" design and technology and the Painters label.
Compl.

3;

Def. 's

Cl.

Construction

Br.

Ex.

#1,

at

3-5.

3

In

exchange, Eclectic agreed to pay royalties to Painters until at
least the end of the 338 Design Patent's 14-year term.
Pursuant to the agreement,

Id.

4

Eclectic began manufacturing a

"Painters Nail Hole Filler" product that used the patented tube
. dispenser

Def. 's

design.

Construction Br. Ex. #5.

Cl.

Construction

Br.

2;

fll. 's

Cl .

However, Eclectic experienced problems

with the dispenser's clear plastic snap-on cap, which often fell
off

during

shipping,

Construction Br.
Compl. 3.

Ex.

retailing,
#1,

at 5;

and

storage.

Def. 's Cl.

Def.'s

Construction Br.

Cl.
2;

The parties each claim credit for solving the problem

by replacing the product's snap-on cap with a screw-on cap that
attached via threading on the neck of the applicator tip.

Compl.

3; Def.'s Cl. Construction Br. 2; Def.'s Cl. Construction Br. Ex.
#1,

at 5-6.

In 2002,

Koptis applied for another design patent

reflecting the change to the dispenser, and Patent 962 issued on

In his declaration, Koptis explains the invention's
purpose as allowing a user to apply spackling paste directly from
the tube.
Def.'s Cl. Construction Br. Ex. #1, at 4.
When a user
squeezes the tube, "paste is extruded through the hole in the
center of the angled sponge" on the applicator tip.
Id.
"[T]he
flat surface of the sponge allows the paste to be pushed into a
nail hole or other gap in a surface then leveled and smoothed
without the need for any other tools." Id.
The parties supply conflicting information about the term
of the licensing agreement.
Compl. 5; Def.'s Cl. Construction
Br. Ex., #1, at 5; Def.'s Cl. Construction Br. 2.
Thus far,
neither party has provided the licensing agreement to clarify the
precise expiration date.
·
Page 5 - OPINION AND ORDER

Dec. 2, 2003. 5
4.

Def.'s Cl. Construction Br. Ex. #1, at 5-6; Compl.

Around 2012, after the initial 338 Design Patent had expired,

disputes arose between the parties.
2;

Compl.

5.

Eclectic

Def.'s Cl. Construction Br.

notified

Painters

that

agreement ended with the expiration of the

338

the

licensing

Patent,

ceased

making royalty payments, and began manufacturing another product,
"GOOP Nail Hole Filler."

Compl. 5; Def.'s Cl. Construction Br. 3;

Def.'s Cl. Construction Br. Ex. #1, at 13.

Painters claimed the

licensing agreement extended until the expiration of the new 962
Design Patent,

and not the earlier design patent.

Construction Br.

3.

On Sept.

5,

2013,

Painters

Def.'s Cl.
initiated an

arbitration proceeding in Riverside County, California, claiming
infringement,

breach of contract,

other wrongdoing by Eclectic.
On

Dec.

11,

2013,

misappropriation,

fraud,

and

Compl. 5, 17. 6

Eclectic

filed

the

present

complaint,

seeking a declaratory judgment as to whether Painters' 962 Design
Patent

is

valid

and

enforceable,

infringed under 35 U.S.C. § 271.

and

whether

Compl. 8-9.

Eclectic

has

On Nov. 21, 2014,

Eclectic filed its claim construction brief which asks the Court
to

hold

the

962

Patent

invalid

indefiniteness or functionality.
Alternatively,

on

the

grounds

of

either

Pl.'s Cl. Construction Br. 19.

Eclectic requests that the Court to construe the

The complete 962 Patent is attached hereto as Appendix 3.
In its claim construction brief, Painters stated that the
arbitration was dismissed on procedural grounds in May 2014 and
that Painters was seeking to have the dismissal set aside.
Def.'s Cl. Construction Br. 1. It is unclear whether Painters
succeeded.
Page 6 - OPINION AND ORDER

patent

to

cover

dispenser.

Id.

only

the

top

portion

of

the

pictured

tube

In its brief, Painters argues the patent is valid

and urges the Court to interpret the patent as issued and without
limitations.

Def.'s Cl. Construction 4-7.
DISCUSSION

The Court first addresses whether the patent is invalid for
indefiniteness.

In order to be valid, a patent must include "one

or more claims particularly pointing out and distinctly claiming
the

subject

matter

invention." 35 U.S.C.

which

the

applicant

112(b), 171(c) . 7

§§

regards

as

[the]

Recently, the Supreme

Court enunciated a new and stricter standard for patent validity,
holding

that

a

patent

does

not

satisfy

the

definiteness

requirement merely because "a court can ascribe some meaning to a
patent's claims." Nautilus, Inc. v. Biosig Instruments, Inc., 134
S. Ct. 2120, 2130 (2014).

A patent must "inform, with reasonable

certainty, those skilled in the [relevant] art about the scope of
the invention."

Id. at 2124.

Otherwise, the patent is invalid.

This standard provides "for a modicum of uncertainty" in patent
claims to incentivize inventors to innovate, but requires "clear
notice of what is claimed, thereby appris[ing] the public of what
is still open to them."

Id. at 2128, 2129; Interval Licensing LLC

The Section 112 standard for definiteness applies to
utility and design patents alike.
35 U.S.C. § 171(c). Apple,
Inc. v. Samsung Electronics Co., 932 F. Supp. 2d 1076, 1084-85
(N.D. Cal. 2013); Litton Systems, Inc. v. Whirlpool Corp., 728
F.2d 1423, 1440 (Fed. Cir.1984), overruled on other grounds by
Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir.
2008) .
Page 7 - OPINION AND ORDER

v. AOL, Inc., 766 F. 3d 1364, 1370 (Fed. Cir. 2014).

Courts must

evaluate definiteness from the perspective of someone skilled in
the relevant field and in light of the patent's specification and
prosecution history.

Nautilus, 134 S. Ct. At 2128.

The 962 Patent provides a brief verbal description of its
claim:

~The

ornamental design for an applicator cap, as shown and

described."

The patent then supplies the following Figures 1-6,

showing a

front

elevational,

left

side,

rear,

right,

top,

and

bottom views of the design:
FJG.1

FIG. 4
I

r,

\I

1/
i

i

1

I II

\I

~\ III
I
1

\\

FIG. 2

I

II

I.

FIG. 3

FIG. 6

In assessing a patent's definiteness, a court considers first
Page 8 - OPINION AND ORDER

and

foremost

intrinsic

evidence,

which

includes

the

claim

language, the specifications, and any prosecution history of the
patent in evidence.

Young,

4 92

F. 3d at 134 6.

Courts may also

consider extrinsic evidence, "evidence external to the patent and
prosecution

history,

including

expert

and

inventor

testimony,

dictionaries, and learned treatises," but it has less evidentiary
value.
2005)

Philips v. AWH Corp., 415 F.3d 1303, 1313, 1315 (Fed. Cir.
(en bane).

Here,

intrinsic evidence establishes the 962
The words of the patent lay claim

Patent as fatally indefinite.
to

"an applicator

cap,

as

shown," but

the

drawings

depict

an

entire tube dispenser with a threaded neck and a sponge tip but,
notably,

no cap that fits over the tube.

This conflict between

the patent's verbal and visual descriptions creates uncertainty
about the claim's meaning.

The patent,· on its face,

fails to

provide notice of what is claimed.
Moreover, a closer examination of the verbal portion of the
claim does not resolve the ambiguity.

In construing words such as

"applicator cap," courts generally give them "their ordinary and
customary meaning," defined as "how a person of ordinary skill in
the art understands a claim term."
F.3d

1303,

1313

(Fed.

Cir.

2005).

Phillips v.
Eclectic

AWH Corp.,
argues

that

415
the

ordinary and customary meaning is: "a protective covering fitted
over and/or attached to the top of the applicator."
Cl.

Construction Br.

provide

any

9.

Painters,

interpretation

of

the

Pl.'s Resp.

on the other hand,
term

"applicator

does not
cap,"

nothing in the intrinsic record indicates a different meaning.
Page 9 - OPINION AND ORDER

and
In

fact, the defendants, who presumably possess "ordinary skill" in
this field, appear to share Eclectic's interpretation of the term
"applicator cap."
uses

the

term

Painters' claim construction brief repeatedly

"cap"

to

describe

the

removable

clear

covering protecting the dispenser 1 s applicator tip.
De£. 1 s

Cl.

Construction

Br.

2

(mentioning

protective cap which covered the

"the

[dispenser's]

plastic

See,

clear

e.g.,

plastic

applicator"

and

"the screw-on protective cap which engaged threading to be molded
into the neck of the product tube").

In an attached declaration,

Koptis refers to "the original clear cap which fitted over the
applicator end of the product" and states that he added "threading
in the neck of the tube to keep the clear protective cap firmly in
place."

De£. 1 s Cl.

Construction Br.

Ex.

#1,

at 5.

The Court

concludes that an individual of ordinary skill in the relevant
field would interpret "applicator cap" to refer to a protective
covering

for

an applicator.

depict anything of the sort.

Yet,

the patent

drawings

do not

A skilled artisan examining the 962

Patent is left to conjecture what exactly the inventor intended to
claim.

As

such,

indefiniteness.

the
The

Court
Court

holds

the

need

not

962

Patent

reach

invalid

the

for

issue

of

functionality or perform further claim construction.
CONCLUSION

For above reasons, the Court holds the 962 Patent invalid for
indefiniteness under 35 U.S.C.

§

112(b).

Accordingly, the Court

ORDERS that the 962 patent be declared invalid and unenforceable
and that this action be DISMISSED with prejudice.
Page 10 - OPINION AND ORDER

The clerk is

directed to provide copies of this order to all counsel of record
and to enter judgment in plaintiff's favor pursuant to Fed.
Civ. P. 58.
IT IS SO ORDERED.
Dated this

~~f

March 2015.

Ann Aiken
United States District Judge
h

Page 11 - OPINION AND ORDER

..

R.

Appendix 1: Page 1 of 3

111111111111111111111111111111111111111111111111111111111111111111111111111

United States Patent

USOOD351338S
[11)

(19J

Koptis

(45]

[54]

TUBE DISPENSER

(75]

Inventor:

Kurt Koptis, Yucca Valley, Calif.

[73]

Assignee:

Painter's Products Inc., Palm Desert,
Calif.

[.. ]

Term:

14 Years

[21)

Appl. No.: 2,993

[22]
(52]

Filed:
Dec. 28, 1992
U.S. Cl ...................................... D9/302; D9/337;
D9/338
Field of Search ................ D9/302, 306, 337, 338,
D9/442; 222/92, 93, 106, 107; 401/130, 139;
239/333, 337, 383

(58)

(56]

References Cited
U.S. PATENT DOCUMENTS

D. 92,135 5/1934 Johnson ............................... D9/302
D. 129,508 9/1941 Landau ............................ D9/338 X
D. 208,174 7/1967 Carveth ............................... D9/338
D. 216,294 12/1969 Rias ................................. D9/526 X

Patent Number:
Date of Patent:

Des. 351,338

** Oct.

11, 1994

D. 308,476 6/1990 Rosenberg ........................... D9/338
D. 322,391 12/1991 Morane ........................... D9/448 X
D. 322,392 12/1991 Schneider et al. .................. D9/300
D. 327,003 6/1992 Schneider et al. .................. D9/300
1,342,537 6/1920 Everett ................................ 401/139
2,532,696 12/!950 Zimmerman .......................... 222/92

Primary Examiner-Bernard Ansher
Assistant Examiner-M. Siegel
Attorney, Agent, or Firm-Charles H. Schwartz;
Ellsworth R. Roston

[57]

CLAIM

The ornamental design for a tube dispenser, as shown
and described.
DESCRIPTION
FIG. 1 is a front perspective view of a tube dispenser
showing my new design;
FIG. 2 is a back elevational view thereof;
FIG. 3 is a top plan view thereof;
FIG. 4 is a right side elevational view thereof;
FIG. 5 is a left side elevational view thereof; and,
FIG. 6 is a bottom plan view thereof.

\

Appendix 1: Page 2 of 3

U.S. Patent

Oct. 11, 1994

Sheet 1 of 2

Des. 351,338

FIG I

\

FIG. 2

FIG. 3

Appendix 1: Page 3 of 3

U.S. Patent

Oct. 11, 1994

Sheet 2 of 2

Des. 351,338

I

'•

\J
FIG. 4

FIG 5

FIG 6

Appendix 2: Page 1 of 5

1111111111111111111111111111111111111111111111111111111m llllllllllllllllll
US005577851A

United States Patent
Koptis
[54]

Inventor:

[73]

Patent Number:
Date of Patent:

TUBE DISPENSER WITH SPONGE
APPLICATOR

[75]

[lll
[45]

[19]

Assignee: Painter's Products Inc., Palm Desert,
Calif.
Appl. No.: 22,077

[22]

Filed:

[51]
[52]

Int. Cl.6 .. : .................................................... B43K 1/00
U.S. Cl. .......................... 401/202; 401/207; 401/265;
401/266; 401/183
Field of Search ..................................... 401/202, 207,
401/196, 265, 266, 134, 183-6

[58]

Feb. 24, 1993

References Cited

[56]

U.S. PATENT DOCUMENTS
1,007,492
3,072,953
3,106,742
3,214,780
3,271,810
3,756,732
3,797,946
3,922,099

4,271,982 6/1981 Niksich et a!. .....................
4,848,946 7/1989 Goncalves ...........................
4,887,924 12/1989 Green ..................................
5,042,690 8/1991 O'Meara .............................

Kurt Koptis, Yucca Valley, Calif.

[21]

10/1911
1/1963
10/1963
1111965
9/1966
9/1973
3/1974
1111975

Ruch ....................................... 401/262
Bunke ................................. 401/262 X
Schultz et al ........................... 401/202
Sharpe ................................ 401/185 X
Raffe ................................... 401/266 X
St6ffier .................................... 401/202
Witzmann et al .................. 401/266 X
Christine et al ........................ 4011134

5,577,851
Nov.26, 1996
401/134 X
401/183 X
4011266 X
401/134 X

FOREIGN PATENT DOCUMENTS
1124161
1411630

6/1956
4/1969

France ................................... 401/266
Germany ............................... 401/202

Primary Examiner-Danton D. DeMille
Attorney, Agent, or Firm-Charles H. Schwartz; Ellsworth
R. Roston
[57]

ABSTRACT

A tube dispenser, sponge applicator and cover assembly
including a tube dispenser having a main body portion, an
upper neck portion extending from the main body at an
upper end and an upper circumferential portion at the upper
end of the main body portion adjacent to the-neck portion.
A sponge applicator for attachment around the neck portion
of the tube dispenser for applying any substance contained
in the tube dispenser. A cover member having an upper
portion for covering the sponge applicator and the neck
portion of the tube dispenser and a lower circumferential
portion to mate with and seal to the upper circumferential
portion of the main body of the tube dispenser.

6 Claims, 1 Drawing Sheet

Appendix 2 : Page 2 of 5.

U.S. Patent

5,577,851

Nov. 26, 1996

FIG. I

FIG. 2 .
.36

/6
10

~

16

FIG. 3

Appendix 2: Page 3 of 5

5,577,851

1

2

TUBE DISPENSER WITH SPONGE
APPLICATOR

structure and again is generally complex in construction and
thereby expensive.
SUMMARY OF THE INVENTION
5

In the present invention a very simple assembly of a tube
dispenser, sponge applicator and cover member is provided.
Specifically, the tube dispenser does not require any special
The present invention relates to a tube dispenser with
closure cap, but actually includes a cutoff tip so that prior to
sponge applicator and specifically to a tube dispenser with
sponge applicator that has a cover member to seal off the 10 cutting off this tip the contents of the tube dispenser are
completely sealed and not in any way exposed to the
contents of the tube dispenser when not in use.
environment. The sponge applicator has a specific angle
In the prior art, tube dispensers have been known, which
design to facilitate the application of the paste material, such
serve . as containers for a variety of substances. The subas a spackle compound, and with the sponge applicator
stance may be dispensed from the container by deforming
the container walls so as to force the contents of the 15 attached to the top of the tube dispenser surrounding a
dispensing aperture.
container through an aperture at one end of the container.
In the particular example shown in the present applicaThe most common tube dispenser of this type is a tube of
tion, the applicator is attached by a threaded connection to
toothpaste. In addition, tube dispensers have been provided
a neck portion at the top of the tube dispenser. Finally, the
which include an applicator device mounted around the
aperture. When the contents of the tube are dispensed 20 cover member is very simple in construction and is specifically designed to seal the tube dispenser and sponge applithrough the aperture, the applicator is then used to apply the
cator by seating onto a circumferential portion at the upper
contents of the tube to a desired surface.
end of the tube dispenser. In the present invention, the cover
For example, in the past, structures of the above described
member does not seal to a portion of the sponge applicator.
type have been used to apply a liquid dressing or polish to
leather such as shown in Albert U.S. Pat. No. 2,870,471, 25 The cover member is independent of the sponge applicator,
and seals around the upper circumferential portion of the
Fagan U.S. Pat. No. 3,023,448 and Schultz et a! U.S. Pat.
tube dispenser itself.
No. 3,106,742. Other applicators which have been used in
The cover structure is very simple in construction and
the prior art are again directed to the application of a liquid
provides for an air tight seal because of the nature of the
from the tube container to a surface such as shown in
Schwartzman U.S. Pat. No. 3,565,294 and Johnson U.S. Pat. 30 materials used for the cover member and the tube dispenser.
Specifically, the co.ver member is made out of a substantially
No. 3,811,783.
stiff material such as a hard plastic material, while the tube
Huish U.S. Pat. No. 3,121,906 shows a similar tube
dispenser is made out of a pliable plastic material which is
applicator for dispensing and applying the contents of a
much more flexible than the cover member. When the cover
container which are more viscus than those described in the
patents referred to above. Specifically, the Huish patent 35 member is positioned around the upper end of the tube
dispenser the upper circumferential will deform sufficiently
relates to paste and viscus substances such as an oven
for the cover member to provide for a tight sealing area
cleaning composition. The present invention is more genaround the upper end of the tube. The present invention
erally directed to a tube dispenser with sponge applicator of
therefore provides for a simple structure which completely
the type shown in the Hulsh patent in that it is more directly
applicable to a paste-like substance and specifically a 40 seals the contents of the tube dispenser before use, and
allows for a resealing of the assembly if the contents are only
spackle compound used to fill holes in walls and ceilings
partially used. This is accomplished using a simple and
prior to painting.
inexpensive cover member which seals directly onto an
Also in the prior art are various devices used by plasterers
upper circumferential portion of the tube dispenser.
to provide for the application of plaster material on a
45
continuous basis such as shown in the Martin U.S. Pat. No.
A BRIEF DESCRIPTION OF THE DRAWINGS
2,864,109, the Anderson U.S. Pat. No. 2,882,716 and the
BACKGROUND OF THE INVENTION

Etens U.S. Pat. No. 3,368,234. These types of devices are
directed to a different area than the present invention since
they relate to the spreading of plaster material to much larger
areas than would be practical with the present invention.
The devices of the prior art suffer from a number of
deficiencies including complexity in construction and difficulty in reusing since the prior art devices are often poorly
sealed once they have been opened. For example, the Huish
patent has a snap-on cover which attaches to a portion of the
sponge applicator assembly. Both the cover and sponge
applicator are complicated in· structure and thereby relatively
expensive to produce. In addition, the cover seals so poorly
that a separate closure cap must be used to seal off the
contents of the tube container once the container has been
opened and used.
Many of the other prior art patents include screw type
covers which are again more complex in structure and would
not provide for a good seal once the tube dispenser has been
used. The Schwartzman patent also has a snap-on cap or
cover which cooperates with a portion of the applicator

FIG. 1 is a perspective view of a tube dispenser, sponge
applicator and cover assembly of the present invention and
50 with the cover member shown partially broken away to
illustrate the sponge applicator;
FIG. 2 is an exploded view of the assembly of FIG. 1 and
with the cover member and sponge applicator shown in
cross section; and
55
FIG. 3 is a cross-sectional view taken along lines 3---3 of
FIG. 1 in illustrating the sealing of the cover member to an
upper circumferential portion of the tube dispenser.
60

DESCRIPTION OF THE PREFERRED
EMBODIMENT

Referring specifically to FIGS. 1-3, it can be seen that the
assembly of the present invention is composed of three
inter-related parts. These parts are the squeezable tube
65 dispenser 10, a sponge applicator 12, and a cover member
14. The sponge applicator 12 is shown to be secured to the
top of the tube dispenser 10 using a screw thread arrange-

Appendix 2: Page 4 of 5

5,577,851

3
ment and with the cover 14 covering the top of both the tube
dispenser 10 and the sponge applicator 12 by sealing around
an upper circumferential portion of the tube container 10.
The tube dispenser 10 includes a main body portion 16
surmounted at the top by a neck portion 18. The neck portion
18 includes a spiral exterior thread 20 and a closed tip
portion 22 to provide for a seal of the contents of the main
body portion 16 of the tube 10. The closed tip portion 22
may be cut off by a knife to dispense the contents of the tube
until the tip 22 is cut off. The contents, such as a spackle
compound, are sealed within the tube dispenser 10 and
remain fresh and thereby storeable for a considerable period
of time.
The sponge applicator 12 includes a lower rigid plastic
portion 24 and an upper sponge member 26. The sponge
member 26 may be attached to the lower plastic portion 24
such as by an adhesive. The lower portion 24 includes a
cylindrical member 28 having a spiral interior thread 30
which mates with the spiral exterior thread 20 of the neck
portion 18. It can be seen therefore that the sponge applicator 12 may be threaded onto the top of the tube dispenser
10. Finally, the sponge applicator 12 includes an opening 32
that extends through the sponge portion 26 and the substantially rigid portion 24 so that any contents of the container
10 may be squeezed through the neck 18 and through the
opening 32 to be applied by the outer surface 34 of the
sponge 26.
The cover member 14 is designed to cover the end of the
tube dispenser 10 and the sponge applicator 12 and to reseal
the tube dispenser. Specifically, when the end 22 of the neck
18 is cut off, the contents of the container 12 may be
dispensed through and applied by the sponge applicator 12.
Once.the application has been completed then the cover 14
may be reinstalled as shown in FIGS. 1 and 3 so as to seal
the upper end of the assembly of the present invention. The
tube dispenser with sponge applicator may then be reused at
a later time.
The cover 14 has an upper end 36 which covers the
sponge applicator 12 and a lower end 38 which forms a rigid
ring which is designed to seal against an upper circumferential portion 40 of the main body portion 16 of the tube
dispenser 10. As can be seen in the drawings and specifically
in FIG. 3, the lower portion 38 overlays and provides a
friction fit to the upper circumferential portion 40 of the
main body 16 of the tube dispenser 10. The lower end 38 of
the cover 14 has a stepped design as shown by step 42 to act
as a stop to limit the insertion of the cover 14 on the upper
circumferential portion 40.
The container 10 is preferably formed of a relatively
pliable plastic material whereas the cover member 14 and
specifically the lower portion 38 are preferably formed of a
somewhat stiffer material such as a hard plastic. The lower
portion 38, which forms the substantially rigid ring, therefore provides a substantially air tight seal to the upper
circumferential portion 40 and has a friction fit due to the
interrelationship between the relatively pliable and relatively stiff plastic materials.
The applicator sponge 12, and specifically the sponge
portion 26, may be formed from a spongy material, such as
a foamed plastic material, so as to provide for the proper
application of the contents of the tube dispenser 10. One
specific material that the present invention is designed for is
a spackle compound and with the assembly of the present
invention thereby used to apply spackle material to holes or
cracks in walls or ceilings and with the sponge applicator 12
then used to smooth off the spackle material to conform to

4
the surrounding wall or ceiling and thereby provide a proper
surface for painting.
Typically, after the present invention has been used, for
example to apply spackle in a desired manner, the sponge
assembly 12 may be thoroughly cleaned by flushing with
running water so as to clean any excess spackle material out
of the sponge material and out of the opening 32. This may
be accomplished with the sponge applicator either separated
from container 10, or with the sponge applicator still in
10 position as long as excess water does not enter into the tube
dispenser 10. Once the sponge applicator 12 has been
thoroughly cleaned, then the cover member 14 may be
friction fit onto the top of the tube dispenser to have the
lower ring portion 38 of the cover 14 engage the upper
circumferential portion 40 of the tube 10 as shown in FIGS.
15

20

25

30

35

40

45

50

55

60

65

1 and 3.
Although the present has been described with reference to
a particular embodiment, it is to be appreciated that various
adaptations and modifications may be made and the invention is only to be limited by the appended claims.
I claim:
1. A tube dispenser, sponge applicator and cover assembly
wherein the tube dispenser is designed to contain a substance for application to an exterior surface including,
a tube dispenser having a main tubular' body portion, an
upper neck portion extending inwardly from the upper
end of the main tubular body portion for dispensing any
substance within the main tubular body portion and a
non-threaded upper circumferential portion at the upper
end of the main tubular body portion and adjacent to the
neck portion,
said upper circumferential portion at the upper end of said
main tubular body portion being a smooth continuation
of said main tubular body portion,
a sponge applicator for attachment around the neck portion of the tube dispenser for applying to the exterior
surface the substance contained in the tube dispenser
which has been dispensed through the upper neck
portion and through the sponge applicator,
a cover member having an upper portion for covering the
sponge applicator and the neck portion of the tube
dispenser and a non-threaded lower circumferential
portion to provide a friction fit to mate with and seal,
to the upper circumferential portion of the main body
portion of the tube dispenser,
wherein the cover member is formed of a relatively stiff
material and the tube dispenser, and including said
tubular main body portion and said upper circumferential portion is formed of a relatively pliable material
and wherein said cover member is so dimensioned that
the lower circumferential portion of the cover member
forms a substantially rigid ring to provide the friction fit
to mate with and seal to the outer surface of said
relatively pliable upper circumferential portion of the
main tubular body portion of the tube dispenser, and
wherein the lower circumferential portion of the cover
member has an inner step dimensioned to seat on the
upper neck portion adjacent said upper circumferential
portion at the upper end of the main tubular body
portion and has a lower end forming said rigid ring
engagable on the upper circumferential portion of the
main tubular body portion to mate and seal with said
outer surface of said upper circumferential portion, said
inner step providing a stop to limit the insertion of the
cover member on the upper circumferential portion of
the main tubular body portion of the tube dispenser.

Appendix 2: Page 5 of 5

5,577,851
5

6

2. The assembly of claim 1 wherein the cover member and
5. The assembly of claim 1 additionally including an
the tube dispenser are both formed of plastic material and
opening extending through the sponge member to insure the
with the cover member being a hard plastic material and the
easy passage of the substance contained in the main body of
tube member being a pliable plastic material.
the tube dispenser and with the substance contained in the
3. The assembly of claim 1 wherein the upper neck
portion of the tube dispenser has a closed end which must be
tube dispenser a paste-like substance.
cut off or punctured in order to release the substance
6. The assembly of claim 5 wherein the paste-like subcontained in the main body of the tube dispenser.
stance contained in the tube dispenser is a spackle com4. The assembly of claim 1 wherein the sponge applicator
is attached around the neck portion of the tube dispenser and 10 pound for use in patching holes and cracks in walls and
ceilings.
additionally including complementary threaded portions on
an inside surface of the sponge member and an outside
surface of the neck portion.

* * * * *

Appendix 3: Page 1 of 4
111111111111111111111111111111111111111111111111111111111111111111111111111
USOOD482962S

United States Design Patent

c1o) Patent No.:

Koptis

(1:2)

(45)

(54)
(75)

Inventor:

(73)

Assignee: Painters Products Inc., Palm Desert,
CA (US)

(**)

'lhm:

(21)

i\ppl. No.: 29/170,531

(22)

Filed:

(.'il)
(52)
(58)

LOC (7) Cl ..................................................... 09-01
U.S. Cl ......................................................... H9/33S
Field of Search .................. 09/302, 306, 337-338,
09/414, 424, 430-432, 434, 442, 499;
206/277, 361, 527; 220/200, 260, 890;
222/()2-93, 106-107, 173, 554, 556; 239/333;
401/130, 139, 49, 126, 208, 220

(56)

Date of Patent:

))320,310
))342,021
1)351,338
D414,688
6,126,923

APPLICATOR CAP
Kurt Koptis, Yucca Valley, CA (US)

US D482,962 S

**

Dec. 2, 2003

S ' 10/1991 Kuhn .......................... D4/114
S ' 12/1993 Porln ........................... D9/338
S ' 10/1994 Koptis ......................... D9/302
S • 10/1999 Loeb el nl. .................. D9/338
A * 10/20CXJ Burke el al. .................. 424/49

* cited hy examiner
Primary Examiner-Philip S. Hyder
Assistant Examiner-Daniel Bui
(74) Allorne_l; Agent, or Firm-Harvey S. Ht\rtz

14 Years

(57)

Nov. 6, 2002

References Cited

U.S. PATENT DOCUMENTS
1,797Ji86 A * 3/1931 Homer ........................ 222/92
3,360,543 A ·• 2/1968 Ronco ........................... 604/2

ClAIM

The ornamental design for an applicator cap, as shown and
described,

DESCRIPTION
FIG. 1 is a fronl elevational view of an applkator cap
showing my new design;
FIG. 2 is a left side view thereof;
FIG. 3 is a rear view thereof;
FIG. 4 is a right side view thereof;
PIG. S is a top plan view thereof; and,
FIG. 6 is a bottom plan view !hereof.

1 Claim, 3 Drawing Sheets

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EXI!IBIT _

_A

PAGE _____

L

OF~

Appendix 3: Page 2 of 4

I

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I

F!Ci 2
.I

Appendix 3: Page 3 of 4

U.S. Patent

Dec. 2, 2003

Sheet 2 of 3

US D482,962 S

FIG. 4
I

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FIG. 3

Appendix 3: Page 4 of 4

U.S. Patent

Dec.2,2003

FIG, 5

FIG, 6

Sheet 3 of 3

US D482,962 S