NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

ALIFAX HOLDING SPA,

Plaintiff-Appellant

SIRE ANALYTICAL SYSTEMS SRL,

Plaintiff

v.

ALCOR SCIENTIFIC LLC, FRANCESCO A. 

FRAPPA,

Defendants-Cross-Appellants

______________________

2022-1641, 2022-1723

______________________

Appeals from the United States District Court for the 

District of Rhode Island in No. 1:14-cv-00440-WES-LDA, 

Chief Judge William E. Smith.

______________________

Decided: June 11, 2024

______________________

TODD ROBERTS TUCKER, Calfee, Halter & Griswold 

LLP, Cleveland, OH, argued for plaintiff-appellant. Also 

represented by JOSHUA FRIEDMAN; CHRISTOPHER BAXTER, 

Pierce Atwood LLP, Portsmouth, NH; ROBERT H. STIER,

JR., Stier IP Law LLC, Cape Elizabeth, ME.

 CRAIG M. SCOTT, Hinckley, Allen & Snyder, LLP, Providence, RI, argued for defendants-cross-appellants. Also 

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2 ALIFAX HOLDING SPA v. ALCOR SCIENTIFIC LLC

represented by CHRISTINE K. BUSH; LAUREL M. ROGOWSKI, 

Boston, MA.

 ______________________

Before MOORE, Chief Judge, LOURIE and CUNNINGHAM,

Circuit Judges.

CUNNINGHAM, Circuit Judge.

This appeal is the culmination of the parties’ multiyear litigation at the District Court of Rhode Island concerning automated clinical instruments that measure certain characteristics of human blood samples. Alifax 

Holding SpA and Sire Analytical Systems SRL (collectively, “Alifax”) sued Alcor Scientific LLC (“Alcor”) and Mr. 

Francesco A. Frappa (collectively, the “Cross-Appellants”

or “Defendants”),1 alleging misappropriation of trade secrets, patent infringement, and copyright infringement. 

For the reasons discussed below, we affirm-in-part and reverse-in-part the district court’s decisions, and remand for 

further proceedings. 

I. BACKGROUND

Alifax makes automated clinical instruments used to 

determine the erythrocyte sedimentation rate (“ESR”) of 

human blood samples. Alifax Holding Spa v. Alcor Sci. 

Inc., 404 F. Supp. 3d 552, 557 (D.R.I. 2019) (“New Trial Order”). An employee of an Alifax subsidiary, Mr. Francesco 

A. Frappa, left the company and began working for Alcor. 

Id. Within a year, Alcor offered a new ESR instrument of 

its own, the iSED, with analytical capabilities comparable 

to the Alifax devices. Id. 

1 Because some issues on appeal only apply to one of 

the two Cross-Appellants, we distinguish between CrossAppellants, Alcor, and Mr. Frappa in this opinion.

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ALIFAX HOLDING SPA v. ALCOR SCIENTIFIC LLC 3

On October 7, 2014, Alifax2 sued Defendants for trade 

secret misappropriation under the Rhode Island Uniform 

Trade Secrets Act (“RIUTSA”). Alifax also sued only Alcor 

for infringement of U.S. Patent Nos. 6,632,679 and 

7,005,107. J.A. 136, 140 ¶¶ 20–21, 146 ¶¶ 53–58, 147–48 

¶¶ 59–68; see New Trial Order at 557. On March 20, 2017, 

Alifax amended its complaint to assert a claim of copyright 

infringement solely against Alcor. J.A. 2106–07 ¶¶ 77–85. 

Alcor answered and counterclaimed seeking, among other 

things, declaratory judgment of patent invalidity. See, e.g., 

J.A. 2235 ¶¶ 41–42; see New Trial Order at 557–58. 

Before trial, the parties moved for summary judgment. 

Relevant to this appeal, Defendants moved for summary 

judgment on Alifax’s claims for copyright infringement, patent infringement, and trade secret misappropriation, as 

well as Alcor’s patent invalidity counterclaims. See Alifax 

Holding SPA v. Alcor Sci. Inc., C.A. No. 14-440 WES, 2019 

WL 13091790, at *1, *4–11, *13 (D.R.I. Mar. 26, 2019) 

(“Summary Judgment Order”). On March 26, 2019, the 

court denied Defendants’ motion for summary judgment.

Id. at *13. 

Shortly before trial, the court and the parties continued 

to narrow the case. Three days before trial, the court excluded the opinion of Alifax’s expert, Mr. Christopher J. Bokhart, on copyright infringement damages. Alifax Holding 

SPA v. Alcor Sci. Inc., C.A. No. 14-440 WES, 2019 WL 

1579503, at *1–2 (D.R.I. Apr. 12, 2019) (“Daubert Decision 

on Copyright”). As a result, the parties agreed that Alifax’s 

copyright claim was “out of the case.” New Trial Order at 

558; J.A. 13829. 

2 Alifax Holding SpA was the only plaintiff in the initial Complaint filed on October 7, 2014. J.A. 136. Sire

Analytical Systems SRL was added as a plaintiff in the 

Amended Complaint filed on March 17, 2015. J.A. 106. 

During litigation, Sire merged into Alifax. New Trial Order at 557 n.6. 

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4 ALIFAX HOLDING SPA v. ALCOR SCIENTIFIC LLC

The court bifurcated the trial into liability and damages phases. J.A. 126; see J.A. 13853–54. Five days into 

the liability phase of the trial, Alifax decided that it no 

longer wished to proceed on its patent infringement claims. 

J.A. 14385. To effectuate removal of patent infringement 

from the case, the court granted summary judgment for Alcor on that claim, and the parties executed a covenant not 

to sue, addressing all patents. New Trial Order at 558; see 

J.A. 14458–59. Accordingly, the only remaining claims for 

jury deliberations relevant to this appeal were the trade 

secret misappropriation claims. See New Trial Order at 

558. 

Alifax presented multiple theories of trade secret misappropriation to the jury. There are two trade secrets relevant to this appeal:3 the conversion algorithm trade 

secret, which comprises “[p]ortions of computer program

source code concerning the conversion of photometric

measurements, including source code containing four specific conversion constants,” J.A. 15193, see J.A. 13849; and 

the alleged signal acquisition trade secret, which involves

“the process by which Alifax’s devices gathered ESRrelated raw data through signal acquisition.” Order on 

New Trial Scope and Patent Fees at *2; see also Summary 

Judgment Order at *7.

At the charge conference, the court struck the alleged 

signal acquisition trade secret from the jury verdict form. 

3 In some places, the district court characterized the 

conversion algorithm and the alleged signal acquisition 

trade secrets as a single trade secret. See Summary Judgment Order at *6 (referring to “software and firmware concerning the acquisition and conversion of photometric 

measurements to an ESR value”). Elsewhere, it described

them as separate trade secrets. Alifax Holding Spa v. Alcor Sci. Inc., C.A. No. WES 14-440, 2021 WL 3022697, at 

*2 (D.R.I. July 16, 2021) (“Order on New Trial Scope and 

Patent Fees”) (referring to “two software trade secrets”). 

We treat the alleged signal acquisition and conversion algorithm as two separate trade secrets. 

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ALIFAX HOLDING SPA v. ALCOR SCIENTIFIC LLC 5

J.A. 14943–48. Specifically, the court decided to exclude

“acquisition” from its description of the software and firmware trade secrets, effectively removing the alleged signal 

acquisition trade secret. Id.; see J.A. 15193–99 (Jury Verdict Form). Alifax objected, arguing that it had identified 

the alleged signal acquisition trade secret as “[t]he manner 

in which the software used in Alifax’s ESR analyzers initiates an ESR measurement from a blood sample loaded in 

the ESR analyzer, handles a blood sample to introduce it 

into the capillary container, instructs the ESR analyzer to 

obtain photometric data, and handles and converts the 

photometric data to calculate the ESR of the blood sample.”

J.A. 14944 (citing J.A. 2000 ¶ 5); see also Oral Arg. at 

11:53–12:30, 18:00–19, https://oralarguments.cafc.

uscourts.gov/default.aspx?fl=22-1641_07102023.mp3. Alifax also contended that it introduced evidence and testimony related to the alleged signal acquisition trade secret 

at trial. J.A. 14944–45. 

The court rejected this argument regarding the alleged 

signal acquisition trade secret, finding there to be “no . . . 

record evidence of trade secrets involved in any of the steps 

that are discussed . . . [regarding] how the apparatus 

would be programmed to operate, other than with respect 

to the conversion algorithm . . . .” J.A. 14947–48. The jury 

returned a verdict finding Alifax proved that the conversion algorithm was a trade secret and that Defendants misappropriated that trade secret.4 J.A. 15193–98.

Before the start of the damages phase of the trial, the 

court excluded in their entirety Alifax’s expert opinions by 

Mr. Bokhart concerning trade secret misappropriation 

damages. Alifax Holding SpA v. Alcor Sci. Inc., 387 F.

Supp. 3d 170, 171–72 (D.R.I. 2019) (“Daubert Decision on 

Trade Secrets”). However, over Defendants’ objection, the 

district court allowed Alifax to call Mr. Bokhart as a summary fact witness pursuant to Federal Rule of Evidence

4 The jury also found the Defendants misappropriated other trade secrets and had acted willfully and maliciously. J.A. 15194–98.

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6 ALIFAX HOLDING SPA v. ALCOR SCIENTIFIC LLC

1006 to testify as to the iSED-related revenues and costs

based on Alcor’s financial spreadsheets. J.A. 15309–11; 

Trial Tr. Vol. 11 at 33–34, Alifax Holding SpA v. Alcor Sci. 

Inc., C.A. No. 14-440 WES (D.R.I. May 1, 2019), Dkt. 347; 

see also New Trial Order at 580. The jury awarded $6.5 

million in damages to Alifax for Alcor’s misappropriation of 

the conversion algorithm trade secret. J.A. 15490.5

After the trial concluded, the district court granted Defendants a new trial on both liability and damages for the 

conversion algorithm trade secret. New Trial Order at 

577–82.6 Regarding liability, the court found that the verdict was against the clear weight of the evidence. Id. at 

577. The court reasoned that because there was little evidence that Alifax’s algorithm could produce highly accurate 

results in a non-Alifax device, Defendants could not have 

used Alifax’s algorithm for any purpose. See id. at 577, 

579–80. As to damages, the court found that Mr. Bokhart’s 

testimony exceeded the scope permitted for a summary fact 

witness and unfairly prejudiced Alcor. See id. at 581–82. 

The district court also denied Alcor’s motion as to attorney’s and expert fees and costs related to the copyright 

claim. Alifax Holding SpA v. Alcor Sci. Inc., C.A. No. 14-

440 WES, 2019 WL 4247737, at *4 (D.R.I. Sept. 5, 2019) 

(“Order on Copyright Fees”). 

On July 16, 2021, the court (1) held that no new evidence or witness would be permitted at the new trial, Order 

on New Trial Scope and Patent Fees at *2; (2) excluded the 

theory based on an alleged signal acquisition trade secret 

from the new trial, id. at *3; and (3) denied Alcor’s motion 

for attorney’s fees related to the patent infringement 

claims. Id. at *5. Following additional briefing by the 

5 The court ruled that the jury would not be permitted to award damages against Mr. Frappa. New Trial Order at 558 n.7; J.A. 15330–31. This ruling is not subject to 

this appeal. 

6 The court considered the motion for a new trial as 

a joint request from both Defendants. New Trial Order, 

404 F. Supp. 3d at 556 n.3. 

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ALIFAX HOLDING SPA v. ALCOR SCIENTIFIC LLC 7

parties, the court also precluded Alifax from seeking compensatory damages at the new trial. Alifax Holding Spa v. 

Alcor Sci. Inc., C.A. No. WES 14-440, 2021 WL 3911258, at 

*1 (D.R.I. Sept. 1, 2021) (“Order Precluding Damages”). 

The parties agreed not to go to trial on nominal damages, 

and on February 18, 2022, the district court dismissed with 

prejudice the trade secret claim. J.A. 91, 98 (Order Dismissing Trade Secret Claim). On March 25, 2022, the district court entered final judgment on all remaining claims, 

including entering judgment in favor of Defendants on patent infringement, trade secret misappropriation, and copyright infringement. J.A. 101–02 (Final Judgment). 

Alifax timely appealed. The Cross-Appellants filed a 

timely cross appeal. We have jurisdiction under 28 U.S.C. 

§ 1295(a)(1).

II. DISCUSSION

On appeal, Alifax argues that the district court erred 

by (1) excluding the alleged signal acquisition trade secret 

from jury consideration, Appellant’s Br. 42–47; (2) granting a new trial on liability relating to the conversion algorithm trade secret, id. at 51–55; (3) granting a new trial on 

damages, id. at 55–56, see also id. at 57–64; (4) excluding

the alleged signal acquisition trade secret from the new 

trial, id. at 47–50; and (5) precluding Alifax from presenting evidence and witnesses for compensatory damages at 

the new trial. Id. at 37–40. Alcor argues that the district 

court abused its discretion in denying attorney’s fees relating to the patent and copyright claims. Cross-Appellants’

Principal & Resp. Br. 57, 66; see also id. 58–65, 67–71. 

A

We apply our own law to issues unique to patent law 

and regional circuit law—here, First Circuit law—to issues 

unrelated to patent law. Atlas IP, LLC v. Medtronic, Inc., 

809 F.3d 599, 604 (Fed. Cir. 2015) (citation omitted). We 

review the district court’s jury instructions, new trial orders, and evidentiary rulings under the law of the regional 

circuit. See Eli Lilly & Co. v. Aradigm Corp., 376 F.3d 

1352, 1359 (Fed. Cir. 2004) (jury instructions); Verizon 

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8 ALIFAX HOLDING SPA v. ALCOR SCIENTIFIC LLC

Servs. Corp. v. Cox Fibernet Va., Inc., 602 F.3d 1325, 1331 

(Fed. Cir. 2010) (new trial orders and evidentiary rulings). 

In the First Circuit, the court’s rulings on jury instructions

are reviewed de novo. Cigna Ins. Co. v. Oy Saunatec, Ltd., 

241 F.3d 1, 8 (1st Cir. 2001) (citation omitted). The grant

of a motion for a new trial is reviewed for abuse of discretion. Jennings v. Jones, 587 F.3d 430, 436 (1st Cir. 2009). 

A court’s decision regarding new evidence at a new trial 

“[i]s one for the informed discretion of the trial judge,” and 

the First Circuit reviews for an abuse of discretion. Fusco 

v. Gen. Motors Corp., 11 F.3d 259, 267 (1st Cir. 1993). 

We apply the law of the regional circuit in reviewing 

decisions on attorney’s fees relating to copyright claims and 

the law of this circuit in reviewing decisions on attorney’s

fees relating to patent claims. See Brooktree Corp. v. Advanced Micro Devices, Inc., 977 F.2d 1555, 1582–83 (Fed. 

Cir. 1992) (applying regional circuit law to attorney’s fees

relating to copyright claims); Serio-US Indus., Inc. v. Plastic Recovery Techs. Corp., 459 F.3d 1311, 1321 (Fed. Cir. 

2006) (applying Federal Circuit law to attorney’s fees relating to patent infringement claims). Under First Circuit 

law, the review of a district court’s decision on a fee award 

relating to copyright claims is “extremely deferential,” and 

the First Circuit “will disturb a ruling . . . only if the record 

persuades us that the trial court indulged in a serious lapse 

in judgment.” Airframe Sys. Inc. v. L-3 Commc’ns Corp., 

658 F.3d 100, 109–10 (1st Cir. 2011) (quoting Latin Am. 

Music Co. v. Am. Soc’y of Composers, Authors & Publishers 

(ASCAP), 642 F.3d 87, 91 (1st Cir. 2011)). This court reviews a district court’s denial of attorney’s fees in a patent 

case for abuse of discretion. Elec. Commc’n Techs., LLC v. 

ShoppersChoice.com, LLC, 963 F.3d 1371, 1376 (Fed. Cir. 

2020) (citations omitted). 

B 

Alifax first argues that the district court erred by excluding the alleged signal acquisition trade secret from jury 

consideration at the liability phase of the trial. Appellant’s 

Br. 42–47; see J.A. 14943–48 (charge conference transcript). Alifax argues that the “jury was entitled to infer 

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ALIFAX HOLDING SPA v. ALCOR SCIENTIFIC LLC 9

that [Mr.] Frappa’s detailed plan for acquiring a signal 

from a blood sample was derived from his eleven years at 

Alifax, particularly in view of the other evidence at trial.” 

Appellant’s Br. 44, see also id. 45–47. We are not persuaded that the district court erred by excluding the alleged signal acquisition trade secret from jury 

consideration. 

Alifax failed to meet its burden of proof to establish the 

existence and scope of the alleged signal acquisition trade 

secret. See generally R.I. Gen. Laws § 6-41-1(4) (defining 

trade secret); TLS Mgmt. & Mktg. Servs., LLC v. Rodriguez-Toledo, 966 F.3d 46, 52 (1st Cir. 2020) (“[T]he trade 

secret owner has the burden of proof to establish the existence and scope of the alleged trade secret in the litigation.”)

(applying Puerto Rico law based on Uniform Trade Secrets 

Act);7 see also IDX Sys. Corp. v. Epic Sys. Corp., 285 F.3d 

581, 583–4 (7th Cir. 2002) (“[A] plaintiff must do more than 

just identify a kind of technology and then invite the court 

to hunt through the details in search of items meeting the 

statutory definition.”) (applying Wisconsin law following 

UTSA). To meet this burden, the trade secret owner must

“describe the subject matter of its alleged trade secrets in 

sufficient detail to establish each element of a trade secret.” 

Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655, 661 

7 Because Alifax brought its trade secret claims under RIUTSA, we apply Rhode Island law. Atl. Rsch. Mktg. 

Sys., Inc. v. Troy, 659 F.3d 1345, 1356 (Fed. Cir. 2011). 

Nonetheless, we look to courts’ interpretation of the Uniform Trade Secrets Act (UTSA) enacted by other states for 

guidance, because RIUTSA is “construed to . . . make uniform the law with respect to the subject of this chapter 

among states enacting it.” R.I. Gen. Laws § 6-41-8; see 

Read & Lundy, Inc. v. Wash. Tr. Co. of Westerly, No. PC99-

2859, 2002 WL 31867868, at *8 (R.I. Super. Ct. Dec. 13, 

2002) (citing cases from other jurisdictions adopting the 

UTSA to interpret provisions of RIUTSA), aff’d, 840 A.2d 

1099 (R.I. 2004).

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10 ALIFAX HOLDING SPA v. ALCOR SCIENTIFIC LLC

(4th Cir. 1993) (applying Maryland law following UTSA

and collecting cases); see also TLS, 966 F.3d at 54. 

Here, Alifax not only failed to describe the alleged signal acquisition trade secret with sufficient detail but also

failed to identify its proper scope. At oral argument, Alifax 

alleged that the signal acquisition trade secret is “how to 

acquire photometric signals from a blood sample.” Oral 

Arg. at 20:45–21:32; see also J.A. 10534 (Alifax’s proposed 

jury instruction). But this definition only provides a highlevel summary of the purpose of the alleged trade secret

without describing it in detail. Alifax also cites its identification of misappropriated trade secrets, which defines the 

alleged signal acquisition trade secret as “the manner in 

which the software used in [Alifax’s] ESR analyzers initiates an ESR measurement from a blood sample loaded in 

the ESR analyzer, handles a blood sample to introduce it 

into the capillary container, [and] instructs the ESR analyzer to obtain photometric data.” J.A. 2000 ¶ 5; see also 

Oral Arg. at 11:54–12:30, 18:00–19, 22:50–23:00. This paragraph also fails to clarify “the existence and scope of the 

alleged trade secret,” TLS, 966 F.3d at 52, making it impossible to ascertain whether certain elements of the alleged trade secret have been established, such as 

“[d]eriv[ing] independent economic value . . . from not being generally known” and “not being readily ascertainable 

by proper means.” R.I. Gen. Laws § 6-41-1(4). Therefore, 

neither definition offered by Alifax satisfies its burden to 

describe the alleged trade secret in sufficient detail to establish each element of a trade secret. See Trandes, 996 

F.2d at 661. 

Alifax’s trial evidence and testimony similarly fail to 

meet its burden to identify the alleged signal acquisition

trade secret. First, Alifax argues that a document labeled

“iSED Software Procedures description” would entitle a 

jury to infer that Cross-Appellants misappropriated Alifax’s alleged signal acquisition trade secret. Appellant’s 

Br. 43–44; see J.A. 15716–19 (Trial Exhibit 64). But as Alifax’s counsel admitted at oral argument, Trial Exhibit 64 

is an Alcor document. Oral Arg. at 13:48–55. Alifax also 

points out that the document was drafted by Mr. Frappa

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ALIFAX HOLDING SPA v. ALCOR SCIENTIFIC LLC 11

after signing a royalty agreement in which he agreed to 

provide Alcor with technical documentation related to how

an ESR analyzer performed its functions. See Appellant’s 

Br. 43–44; J.A. 15714. But nothing in the record indicates

that the contents of the document were Alifax’s alleged signal acquisition trade secret. In fact, because neither Alifax 

nor Trial Exhibit 64 identifies the scope of the alleged trade 

secret, a jury would not be able to distinguish “[w]hich aspects are known to the trade” from those “which are not.” 

See IDX Sys., 285 F.3d at 584 (holding that a 43-page document describing a software package was not sufficiently 

specific); Trandes, 996 F.2d at 661–62 (claiming possession 

of secret “formulas” but failing to provide evidence of what 

the formulas were did not provide sufficient detail to “sustain even a prima facie case of misappropriation”). We are 

also unpersuaded by Alifax’s argument that Astro-Med, 

Inc. v. Nihon Kohden America, Inc., 591 F.3d 1, 18–19 (1st 

Cir. 2009), supports an inference that Trial Exhibit 64 

must have included Alifax’s trade secret information 

simply because Alcor hired Mr. Frappa. See Appellant’s 

Br. 43, 46–47. In Astro-Med, the First Circuit upheld an 

inference that a trade secret was misappropriated, after 

parties had clearly articulated what the trade secret constituted—which “includ[ed] confidential marketing, pricing, and customer information.” 591 F.3d at 7–8, 18. AstroMed is thus distinguishable because Alifax has failed to articulate the contents of the alleged trade secret. 

Alifax also argues that Mr. Giovanni Batista Duic’s

trial testimony established the existence and scope of the

alleged signal acquisition trade secret. Appellant’s Br. 45

(citing J.A. 13936–37, 13924–25). We also find this argument unpersuasive. The cited portion of Mr. Duic’s testimony simply describes how Alifax’s ESR instruments work

at a high level. See J.A. 13936–37, 13924–25. At most, this 

testimony would have allowed the jury to make an inference that there are a few discrete points of similarity between Alcor’s software procedure and how Alifax’s device 

works. Compare J.A. 13936–38 with J.A. 15716–19. Taking this testimony into consideration, the evidence adduced

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12 ALIFAX HOLDING SPA v. ALCOR SCIENTIFIC LLC

at trial is still not enough to allow the jury to identify the

alleged trade secret with sufficient detail.

For the foregoing reasons, we find no error in the district court’s decision to remove the alleged signal acquisition trade secret from jury consideration.

C

Next, Alifax argues that the district court abused its 

discretion in granting a new trial on liability as to the conversion algorithm trade secret because it required “Alifax’s 

algorithm [to be] capable of producing highly accurate results in a non-Alifax device,” when RIUTSA does not require evidence of “use” to show misappropriation.

Appellant’s Br. 52 (citing New Trial Order at 577). CrossAppellants respond that the district court did not abuse its 

discretion because the court properly found that the conversion algorithm trade secret had no independent economic value derived from its alleged secrecy. CrossAppellants’ Principal & Resp. Br. 41–44. We agree with 

Alifax. 

“A trial court may grant a new trial on the basis that 

the verdict is against the weight of the evidence. Further, 

the district court has the power and duty to order a new 

trial whenever, in its judgment, the action is required in 

order to prevent injustice.” Jennings, 587 F.3d at 436 (citations and internal quotation marks omitted). 

Here, the district court abused its discretion in finding

that the jury verdict was against the clear weight of the 

evidence, New Trial Order at 577, because it did not consider whether the evidence could establish that the trade 

secret was acquired through improper means, which alone 

is sufficient to satisfy the definition of misappropriation 

under RIUTSA. See R.I. Gen. Laws § 6-41-1 (“‘Misappropriation’ means: (i) Acquisition of a trade secret of another 

by a person who knows or has reason to know that the 

trade secret was acquired by improper means; or (ii) Disclosure or use of a trade secret of another. . . .”) (emphasis 

added). The district court’s decision focused on what it saw 

as the “critical assumption” underpinning the verdict—

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ALIFAX HOLDING SPA v. ALCOR SCIENTIFIC LLC 13

that “Alifax’s algorithm was capable of producing highly 

accurate results in a non-Alifax device”—which it found to 

be necessary for the Defendants to use the conversion algorithm. New Trial Order at 577–79. But the new trial order

did not discuss whether Alifax’s algorithm would meet the 

alternative acquisition prong of misappropriation. Id. at 

577–80. Therefore, because a “material factor deserving 

significant weight”—whether Alifax presented sufficient 

evidence on improper acquisition—was not addressed, we 

find that the district court abused its discretion in finding 

the jury verdict to be against the clear weight of the evidence. Rinsky v. Cushman & Wakefield, Inc., 918 F.3d 8, 

27 (1st Cir. 2019).

Cross-Appellants further contend that Alifax failed to 

show that it undertook reasonable efforts to maintain the 

secrecy of the conversion algorithm or that the conversion 

algorithm had independent economic value from not being 

generally known. Cross-Appellants’ Br. 41–43, 48–49. 

Both arguments are directed to the sufficiency of evidence 

to establish the conversion algorithm as a trade secret. See 

R.I. Gen. Laws § 6-41-1 (4). Because the district court focused its analysis on the jury’s finding on misappropriation

and did not sufficiently address whether the conversion algorithm qualifies as a trade secret, New Trial Order at 

577–80, we decline to address this argument in the first 

instance. See Ahern v. Scholz, 85 F.3d 774, 780 (1st Cir. 

1996) (determining that proper review of a district court’s 

new trial ruling for clear abuse of discretion includes “isolat[ing] the factual basis for the trial court’s ruling” and not 

“assessing the credibility of witnesses and weighing testimony”). 

Because we conclude that the district court abused its 

discretion in finding that the jury verdict regarding liability on the conversion algorithm trade secret was against 

the clear weight of the evidence, we find that the district 

court erred in granting a new trial on liability related to 

the conversion algorithm trade secret. Therefore, we direct 

the district court to enter judgment for Alifax on this issue

according to the jury verdict. See de Perez v. Hosp. del 

Maestro, 910 F.2d 1004, 1008–09 (1st Cir. 1990) (reversing 

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14 ALIFAX HOLDING SPA v. ALCOR SCIENTIFIC LLC

new trial order when “the evidence simply was mixed and 

contradictory”).

D

Alifax next argues that the district court abused its discretion by granting a new trial on damages because of Mr. 

Bokhart’s testimony. Appellant’s Br. 55. Alifax contends

that the court erred in finding that the testimony “exceeded 

the scope permitted by Rule 1006 [Summaries to Prove 

Content]” when it would have been admissible under Federal Rules of Evidence 611(a) (Mode and Order of Examining Witnesses and Presenting Evidence) and 703 (Bases of 

an Expert’s Opinion Testimony). Id. at 56. Alifax also argues that the district court abused its discretion by finding

that Mr. Bokhart’s testimony unfairly prejudiced CrossAppellants. Id. at 61. We do not agree. 

We hold that the district court correctly found that Mr. 

Bokhart exceeded the scope permitted by Federal Rule of

Evidence 1006 as a summary witness by improperly including expert testimony that was previously excluded. New 

Trial Order at 580–82. After previously excluding Mr. Bokhart’s opinions concerning trade secret misappropriation 

damages, Daubert Decision on Trade Secrets at 171–72, the 

district court allowed Mr. Bokhart to present financial information relevant to damages as a summary fact witness 

under Rule 1006. J.A. 15309–11; New Trial Order at 580. 

Rule 1006 allows a party use summary writing or summary

witness testimony “to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.” Id. at 580–81; see Fed. R. Evid. 

1006. But evidence cannot be offered under Rule 1006 if it 

contains expert opinion that goes beyond summarizing voluminous materials or making a calculation based on data 

contained in such materials. See 11 Charles A. Wright & 

Arthur R. Miller, Federal Practice and Procedure § 8043 

(3d ed. 2022); see also Eichorn v. AT & T Corp., 484 F.3d 

644, 650 (3d Cir. 2007). As the district court found, Mr. 

Bokhart’s testimony “necessarily reflected the application 

of his financial and accounting expertise,” i.e., included expert testimony. New Trial Order at 581. Regarding 

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convoyed sales, such as test cards and diagnostic devices, 

Mr. Bokhart testified that the revenue these items generated were iSED-related and therefore should be considered

when calculating damages. Id. at 581–82; see also J.A. 

15351–52 (explaining how Alcor’s iSED-related revenue

stream included revenues from the sale of test cards used 

to make iSED operational). But no evidence or any other 

witness had established the relationship between convoyed 

sales and the conversion algorithm trade secret. New Trial 

Order at 582; J.A. 15379–80 (trial testimony admitting no 

documentation showed that test cards, controls, and diagnostic devices were iSED-related). Therefore, Mr. Bokhart’s testimony must have relied on his accounting 

expertise.

Because Mr. Bokhart’s testimony exceeded the scope of 

Rule 1006 and he was the only damages witness Alifax presented, the district court did not abuse its discretion by

finding that unfair prejudice to Defendants warranted a 

new trial on damages. New Trial Order at 580, 582; see

Turcotte v. Ford Motor Co., 494 F.2d 173, 183–85, 187 (1st 

Cir. 1974) (remanding for new trial on damages when witness improperly applied state law); see also In re Taxotere 

(Docetaxel) Prods. Liab. Litig., 26 F.4th 256, 267, 269 (5th 

Cir. 2022) (finding lay witness improperly offered expert 

opinion and remanding for a new trial). 

Alifax’s argument that Mr. Bokhart’s testimony was 

admissible under Federal Rules of Evidence 611(a) and 703 

is also without merit. See Appellant’s Br. 56. Rule 611(a)

(Mode and Order of Examining Witnesses and Presenting 

Evidence) requires that the testimony must be supported 

by evidence already admitted. See United States v. Milkiewicz, 470 F.3d 390, 395–98 (1st Cir. 2006) (noting that 

“summary chart [under Rule 611(a)] . . . must be linked to 

evidence previously admitted and usually is not itself admitted into evidence”). Furthermore, Rule 703 (Bases of 

An Expert’s Opinion Testimony) is only available to expert 

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16 ALIFAX HOLDING SPA v. ALCOR SCIENTIFIC LLC

witnesses.8 See Fed. R. Evid. 703; see also United States v. 

DeSimone, 488 F.3d 561, 576–77 (1st Cir. 2007) (holding no 

abuse of discretion in admitting an expert’s summary chart

under Rule 703). Because Mr. Bokhart’s testimony was not 

based on evidence in the record and he testified as a fact 

witness, his testimony was not admissible under these 

rules either. 

Alifax’s cited cases are also distinguishable. For example, two of these cases are inapposite because they involve 

a district court’s finding under Rule 403. Appellant’s Br. 

62–63; see Espeaignnette v. Gene Tierney Co., 43 F.3d 1, 5–8 

(1st Cir. 1994); United States v. Frabizio, 459 F.3d 80, 90–

91 (1st Cir. 2006). Here, the district court did not exclude 

Mr. Bokhart’s testimony under Rule 403; rather, it found

that “[p]ermitting the jury’s damages award to stand would 

constitute a miscarriage of justice” in light of Bokhart’s testimony. New Trial Order at 582; see Jennings, 587 F.3d at

436 (“[T]he district court has the power and duty to order 

a new trial whenever, in its judgment, the action is required in order to prevent injustice.”). 

In sum, we conclude that the district court did not 

abuse its discretion in granting a new trial on damages. 

E

Next, Alifax challenges the district court’s decision to

exclude the alleged signal acquisition trade secret from the 

new trial. Appellant’s Br. 47–50; see Order on New Trial 

Scope and Patent Fees at *2–3. Alifax argues that even if 

the district court was correct to exclude the alleged signal 

acquisition trade secret from the jury after close of the 

8 We do not address Alifax’s challenge to the district 

court’s Daubert decision excluding Mr. Bokhart’s expert 

testimony because Alifax only raised this issue in a footnote in its opening brief. Appellant’s Br. 41–42 n.9. See 

Aquinnah/Gay Head Cmty. Assoc., Inc. v. Wampanoag 

Tribe of Gay Head (Aquinnah), 989 F.3d 72, 80 (1st Cir. 

2021) (finding argument addressed in a single footnote in 

opening brief forfeited).

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ALIFAX HOLDING SPA v. ALCOR SCIENTIFIC LLC 17

original trial, that does not justify excluding the alleged

signal acquisition trade secret entirely from the new trial

because the questions at the end of the original trial and at 

summary judgment before trial are different. Appellant’s 

Br. 47. Moreover, Alifax asserts the district court’s exclusion of the alleged signal acquisition trade secret was an 

improper application of partial retrial law. Id. at 48. We 

disagree. 

The district court did not misapply partial retrial case 

law. Order on New Trial Scope and Patent Fees at *2–3. 

After explaining that it had already ruled that the evidence 

at the original trial could not support a finding that the alleged signal acquisition trade secret was misappropriated, 

it concluded that this issue “ha[d] been properly and conclusively resolved.” Id. at *2–3 (cleaned up) (citing 

Drumgold v. Callahan, 707 F.3d 28, 46 (1st Cir. 2013)). 

The court further found the remaining issue of the conversion algorithm is “so distinct and separable from the signal 

acquisition claim,” the trial on that issue alone would not 

result in injustice. Id. (cleaned up) (citing Drumgold, 707 

F.3d at 46). Because we find that the district court did not 

err in precluding jury consideration of the alleged signal 

acquisition trade secret, see supra Section II.B, we agree 

with the district court’s analysis here. 

Neither of Alifax’s cited cases support Alifax’s argument that an issue must be retried even if it was properly

removed from the jury in the first trial. See Appellant’s 

48–49 (citing Gasoline Prods. Co. v. Champlin Ref. Co., 283 

U.S. 494, 500 (1931); Drumgold, 707 F.3d at 46–47). Alifax’s cited case law does not support its argument that excluding the alleged signal acquisition trade secret from

consideration by the jury—a decision subject to the same

standard as judgment as a matter of law, see Wilson v. Maritime Overseas Corp., 150 F.3d 1, 10 (Fed. Cir. 1998)—was 

not a proper and conclusive way of resolving this claim.9 

9 Instead, “the court, by granting only a partial new 

trial, cannot exclude from the jury an issue on which it has 

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18 ALIFAX HOLDING SPA v. ALCOR SCIENTIFIC LLC

Alifax also presents no evidence that the alleged signal acquisition trade secret is not “so distinct and separable”

from the conversion algorithm trade secret that a trial on 

that issue alone would lead to injustice, so as to require a 

retrial. Drumgold, 707 F.3d at 46. Because we find that 

the district court did not misapply partial retrial law, we 

find no error in its decision precluding Alifax from presenting the alleged signal acquisition trade secret at the new 

trial. Order on New Trial Scope and Patent Fees at *2–3. 

F

Lastly, Alifax challenges the district court’s decision 

precluding Alifax from seeking compensatory damages at 

the new trial. Appellant’s Br. 37–40; see Order Precluding 

Damages at *1–3. Alifax argues that the district court 

abused its discretion because it mistakenly assumed that 

Mr. Bokhart’s testimony was essential to the case when it 

had presented other available avenues for introducing evidence. Appellant’s Br. 38. Cross-Appellants respond that 

Mr. Bokhart was Alifax’s sole damages witness and that 

the district court properly precluded Alifax from offering 

new damages witnesses, testimony, or theories on retrial. 

Cross-Appellants’ Principal & Resp. Br. 28. We agree with 

Alifax.

At the outset, Alifax clarified at oral argument that it

does not intend for Mr. Bokhart to serve as its damages 

witness in the new trial, unless the alleged signal acquisition trade secret would be included in the new trial. Oral 

Arg. at 08:46–10:11. Rather, it seeks to introduce Alcor’s

sales record of iSED devices and accessories through other 

fact witnesses already disclosed in the pretrial memoranda

or to introduce Alcor’s financial statements already identified on the trial exhibit list. See Appellant’s Br. 38–39. 

Thus, the crux of the issue on appeal is whether the district 

not yet passed” unless “the circumstances would justify a 

judgment as a matter of law on an issue.” 11 Charles A. 

Wright & Arthur R. Miller, Federal Practice and Procedure

§ 2814 (3d ed. 2022).

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court abused its discretion in finding that “the only damages witness disclosed by Alifax was [Mr.] Bokhart,”

thereby precluding the damages theory altogether. Order 

Precluding Damages at *2–3. 

The finding that Mr. Bokhart was the sole damages 

witness is not supported by the record. At least some of the

fact witnesses that Alifax proposes to call at the new trial 

for damages are listed in the pretrial memorandum. Compare J.A. 18481 (Alifax’s brief at the district court identifying Ms. Rossetto, Dr. Galiano, Mr. Duic, Mr. Frappa, Mr. 

Ruggeri, Mr. Sacchetti and/or Ms. Ruggeri as potential witnesses) with J.A. 10477 (Alifax’s pretrial memorandum

identifying Mr. Duic, Mr. Frappa, Dr. Galiano, Ms. Rossetto, Mr. Ruggeri, and Mr. Sacchetti as potential witnesses). Likewise, at least some documents Alifax seeks to 

present for damages were also listed in Alifax’s pretrial exhibit list attached to its pretrial memorandum. Compare

J.A. 18480 (identifying Trial Exhibit 173, J.A. 15957–64)

with Exhibit A to Alifax’s Pretrial Memorandum at 6, Alifax Holding SPA v. Alcor Sci. Inc., No. 1:14-cv-00440-WESLDA (D.R.I. Mar. 15, 2019), Dkt. 226-1. To the extent that 

the district court’s finding was based on an understanding 

that Alifax’s fact witness were disclosed for the liability 

phase only, this reasoning is not supported because there 

was no requirement for the parties to distinguish between 

possible damages and liability witnesses in the pretrial 

memoranda. See Oral Arg. at 42:15–33 (Cross-Appellants 

conceding that parties were not required to designate witnesses as damages or liability witnesses). 

We further find the district court’s conclusion to be contradicted by Alifax’s initial disclosures. Order Precluding

Damages at *2–3. Alifax’s initial disclosures list at least 

some of the individuals it may seek to call as damages witnesses at the new trial. See J.A. 15071–72 (identifying Mr. 

Duic, Dr. Galiano, Mr. Frappa, Mr. Ruggeri, and Mr. Sacchetti). Furthermore, after Mr. Bokhart’s expert testimony

on damages was excluded mid-trial, the district court itself 

suggested that Alifax could call on other fact witnesses, 

such as Ms. Ruggeri, to present Alcor’s financial 

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20 ALIFAX HOLDING SPA v. ALCOR SCIENTIFIC LLC

spreadsheet as evidence of damages. J.A. 15312; see Oral 

Arg. 42:03–14 (Cross-Appellants admitting the same).

Because the court erred in finding that Mr. Bokhart 

was the only damages witness that Alifax disclosed, we 

hold that it abused its discretion in precluding Alifax from 

presenting any compensatory damages testimony or evidence at the new trial from previously disclosed witnesses 

who could address the damages issues. Order Precluding

Damages at *2–3; see AdjustaCam, LLC v. Newegg, Inc., 

861 F.3d 1353, 1358 (Fed. Cir. 2017) (“A district court 

abuses its discretion when its ruling rests on . . . a clearly 

erroneous assessment of the evidence.”) (citations omitted).10 

G

On cross-appeal, Alcor first challenges the district 

court’s denial of its motion for attorney’s fees under 35 

U.S.C. § 285. Cross-Appellants’ Principal & Resp. Br. 

57–58; see also id. at 59–65. Alcor argues that Alifax knew 

prior to suit that Alcor’s iSED device did not fall within the 

scope of the patent claims and that Alifax failed to obtain 

a claim construction that would support its infringement 

theory, yet still proceeded to trial with no viable infringement theory. Id. at 59. Alcor further contends that these 

facts show that Alifax did not have good faith in pursuing

its patent infringement claims and misrepresented its infringement theory as a literal infringement theory. Id. at 

60–63. Alcor also argues that the district court abused its 

discretion in relying on Medtronic Nav., Inc. v. Brain LAB 

Medizinische Computersysteme GmbH, 603 F.3d 943, 954 

(Fed Cir. 2010) to arrive at its conclusion without discussing the Octane factors. Id. 64–65. We disagree. 

10 Alifax additionally argues that the district court 

erred in requiring it to present expert testimony on damages. Appellant’s Br. 37; see Order Precluding Damages at 

*3 & n.4. Because we do not agree with this reading of the

district court’s opinion, we do not separately address this 

argument. 

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Section 285 of the Patent Act allows a district court, in 

an exceptional case, to award reasonable attorney’s fees to 

the prevailing party. 35 U.S.C. § 285. “District courts may 

determine whether a case is ‘exceptional’ in the case-bycase exercise of their discretion, considering the totality of 

the circumstances.” Octane Fitness, LLC v. ICON Health 

& Fitness, Inc., 572 U.S. 545, 554 (2014). Under a similar 

provision of the Copyright Act, among the nonexclusive factors that courts have considered relevant to this determination are “frivolousness, motivation, objective 

unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances 

to advance considerations of compensation and deterrence.” Id. at 554 n.6 (citing Fogerty v. Fantasy, Inc., 510 

U.S. 517, 534, n.19 (1994)).

The district court did not abuse its discretion because 

it correctly found that Alifax’s patent claims “were not exceptional” and properly considered arguments raised by Alcor. Order on New Trial Scope and Patent Fees at *4–5. 

The district court rejected Alcor’s argument that “Alifax 

pulled a bait and switch regarding its theory of patent infringement,” id. at *4, and instead found that “the evidence 

shifted between summary judgment and trial.” Id. at *5. 

For example, it explained that its claim construction order 

was not inconsistent with Alifax’s infringement position

and that it rejected Alcor’s similar argument on summary 

judgment. Id. at *4; see Summary Judgment Order, at *4

(noting Alcor’s argument depends “upon reading limitations into the claims that do not exist”). The court further 

correctly explained that Alifax’s infringement position was 

supported by its expert testimony, but the expert testified 

inconsistently at trial. Order on New Trial Scope and Patent Fees, at *5; see J.A. 14227–28 (relevant expert testimony). The court thus did not err in concluding that Alcor

had not shown that Alifax misrepresented its evidence to 

the court. See Order on New Trial Scope and Patent Fees

at *4–5. On appeal, Alcor simply asks this court to reweigh 

the evidence based on the same arguments it presented at 

the district court. See Cross-Appellants’ Principal & Resp. 

Br. 60–63. Because “[w]e do not and should not reweigh 

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22 ALIFAX HOLDING SPA v. ALCOR SCIENTIFIC LLC

evidence or make factual findings anew on appeal,” we reject Alcor’s argument. Impax Lab’ys Inc. v. Lannett Holdings Inc., 893 F.3d 1372, 1382 (Fed. Cir. 2018) (citation 

omitted); see Bayer CropScience AG v. Dow AgroSciences 

LLC, 851 F.3d 1302, 1307 (Fed. Cir. 2017) (declining to “reweigh evidence in a manner inconsistent with . . . abuse of 

discretion” standard).

Additionally, we are not persuaded that the district 

court improperly relied on Medtronic. Cross-Appellants’

Principal & Resp. Br. 64. In Medtronic, we held that the 

denial of summary judgment can be “an indication that the 

party’s claims were objectively reasonable and suitable for 

resolution at trial,” unless there was a misrepresentation

to the court. 603 F.3d at 954. The district court correctly

found that the denial of Alcor’s summary judgment motion

on patent infringement indicates that Alifax’s patent 

claims were “suitable for resolution at trial.” Order on New 

Trial Scope and Patent Fees, at *5. Because the court also

properly found Alifax did not misrepresent its patent infringement theory, Medtronic squarely applies and the district court’s reliance on this case was proper. 

We further are not persuaded by Alcor’s argument that 

the court did not engage in any Octane factors analysis. 

Cross-Appellants’ Principal & Resp. Br. 65. The court discussed the substantive strength of Alifax’s position and 

whether the manner in which it was litigated was unreasonable. See Order on New Trial Scope and Patent Fees at 

*4–5. This discussion closely follows the analysis in Octane. 572 U.S. at 554 & n.6. Therefore, the district court 

did not abuse its discretion in finding that this case was 

not exceptional. 

H

Lastly, Alcor argues that the district court abused its 

discretion in denying its motion for attorney’s fees as to Alifax’s copyright infringement claim under 17 U.S.C. § 505. 

Cross-Appellants’ Principal & Resp. Br. 66–67. Alcor argues that the court abused its discretion in finding that Alifax’s copyright infringement claim was not objectively 

weak because Alifax never identified the content of the 

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ALIFAX HOLDING SPA v. ALCOR SCIENTIFIC LLC 23

copyrighted work or presented a cognizable damages theory for its copyright claim. Id. at 67–68. Alcor also contends that the district court erred by failing to consider 

certain Fogerty factors, including deterrence. Id. at 70–71. 

We disagree. 

For a court to award attorney’s fees under 17 U.S.C. 

§ 505, “the prevailing party need only show that its opponent’s copyright claims or defenses were objectively weak.” 

Latin Am. Music, 642 F.3d at 91 (citation and internal quotation marks omitted). A finding of objective weakness 

may turn on “frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances 

to advance considerations of compensation and deterrence.” Fogerty, 510 U.S. at 534 n.19. The “district court 

has discretion to decline to award attorney’s fees even 

when the plaintiff’s copyright infringement case is quite 

weak.” Airframe Sys., 658 F.3d at 109. 

First, the court correctly held that Alifax’s purported 

failure to present the entirety of the copyrighted source

code had little bearing on the overall strength of its claim. 

Order on Copyright Fees at *3; see Airframe, 658 F.3d at

109 (affirming denial of attorney’s fees despite plaintiff not 

establishing the content of copyrighted source code). Moreover, as the district court explained, one of the reasons that 

Alifax was unable to succeed on its copyright claim was because Alifax’s expert “failed to revise his opinion as the factual circumstances became more refined.” Order on 

Copyright Fees at *4; see Daubert Decision on Copyright at 

*1–2; Daubert Decision on Trade Secret at 171–72 (“The 

copyright claim fell away with the exclusion of Mr. Bokhart’s damages testimony.”). Failure of an expert to revise his damages opinion as the case progresses has little 

to do with the overall strength of Alifax’s case on the merits. We therefore reject the argument that Alifax’s failure 

to disclose copyrighted source code or to provide evidence 

of damages at trial should have compelled the district court 

to find Alifax’s claim to be objectively weak. 

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24 ALIFAX HOLDING SPA v. ALCOR SCIENTIFIC LLC

Second, we are not persuaded that the district court 

abused its discretion by failing to properly consider the 

Fogerty factors. Cross-Appellants’ Principal & Resp. Br. 

70–71. Regarding frivolousness and motivation, the court 

explicitly rejected the argument that “the claim was frivolous or unreasonable,” and found that “nothing in the record indicat[es] that Alifax brought this claim with an 

improper motivation.” Order on Copyright Fees at *4. The 

court’s finding is supported by the record: Alifax consistently argued throughout the litigation that Defendants

took Alifax’s source code without permission. Based on its 

argument, the court denied Alcor’s summary judgment motion on copyright infringement. See id. at *3; Summary 

Judgment Order at *9–11. Additionally, the district court’s 

finding that Alifax’s copyright claim “fell away” due to the 

damages expert’s failure to revise its opinion supports the 

court’s conclusion that there was no improper motivation. 

Daubert Decision on Trade Secret at 171–72; see Daubert 

Decision on Copyright at *1–2; New Trial Order at 558. Because the district court correctly rejected the argument as 

to motivation, it was not an abuse of discretion to find there 

to be “no need to compensate Alcor nor to deter Alifax.” Order on Copyright Fees at *4. 

Therefore, we hold that it was not an abuse of discretion for the district court to deny attorney’s fees as to Alifax’s copyright infringement claim. 

III. CONCLUSION

We have considered the parties’ remaining arguments 

and find them unpersuasive. For the foregoing reasons, we 

affirm the district court’s exclusion of the alleged signal acquisition trade secret from jury consideration at the original trial and the new trial; reverse the district court’s grant 

of a new trial as to the liability of the conversion algorithm 

trade secret and direct the district court to reinstate the 

jury verdict on this issue; affirm the district court’s grant 

of a new trial on damages for misappropriation of the conversion algorithm trade secret; reverse the district court’s 

decision to preclude Alifax from presenting evidence and 

witnesses on compensatory damages at the new trial; and 

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ALIFAX HOLDING SPA v. ALCOR SCIENTIFIC LLC 25

remand for a new trial on damages consistent with this 

opinion. We also affirm the denials of Alcor’s motions for 

attorney’s fees relating to its patent and copyright infringement claims. 

AFFIRMED-IN-PART, REVERSED-IN-PART AND 

REMANDED

COSTS

No costs.

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