## United States Court of Appeals for the Federal Circuit

04-1273, -1274

INVITROGEN CORPORATION, Plaintiff-Appellant,

v.

BIOCREST MANUFACTURING, L.P., STRATAGENE HOLDING CORP ., and STRATAGENE, INC., Defendants-Cross Appellants.

Francis M. Wikstrom , Parsons Behle & Latimer, of Salt Lake City, Utah, argued for plaintiff-appellant. Wi th him on the brief were C. Kevin Speirs and Kristine Edde Johnson . Of counsel on the brief was Alan W. Hammond , Invitrogen Corporation, of Carlsbad, California. Marc R. Labgold , Patton Boggs LLP, of McLean, Virginia, argued for defendantscross appellants. With him on the brief were Scott A.M. Chambers and Kevin M. Bell ; and Richard J. Oparil , of Washington, DC. Appealed from: United States District C ourt for the Western District of Texas Judge Sam Sparks

## United States Court of Appeals for the Federal Circuit

04-1273,-1274 INVITROGEN CORPORATION, Plaintiff-Appellant,

v. BIOCREST MANUFACTURING, L.P., STRATAGENE HOLDING CORP ., and STRATAGENE, INC., Defendants-Cross Appellants.

___________________________ DECIDED: October 5, 2005

___________________________ Before RADER, DYK, and PROST, Circuit Judges

. RADER, Circuit Judge

. On remand from this court, the United States District Court for the Western District of Texas, on summary judgment, dete rmined that Biocrest Manufacturing, L.P., Stratagene Holding Corporation, and Stratagene, Inc. (collect ively Stratagene) infringed Invitrogen Corporation’s (Invit rogen’s) U.S. Patent No. 4,981,797 (issued Jan. 1, 1991) (the ’797 patent), and that the ’797 patent was not invalid fo r indefiniteness, although it was invalid because of public use under 35 U.S.C. § 102(b). Invitrogen Corp. v. Biocrest Mfg. , No. A-01-CA- 167 -SS (W.D. Tex. Feb. 12, 2004) ( Invitrogen II ). Although not specifically enumerating all of the counterclaims on which judgment was obviated due to its holding on invalidity, the trial cour t rendered final judgment sufficient to givethis court jurisdiction under 28 U.S.C. § 1295(a)(1) (2000). See Pandrol v. Airboss , 320 F.3d 1354, 1362-63 (F ed. Cir. 2003) (“ What essentially is required is some clear and unequivocal manifestation by the tr ial court of its belief that the decision made, so far as it is concerned, is the end of the case.”). This court affirms the tr ial court’s decisions on infringement and on non-invalidit y due to indefiniteness. Because the district court relied on an incorrect understanding of public use, this court reverses the trial court’s judgment of invalidity on that ground and remands.

I. The ’797 patent involves the introduction of recombinant DNA molecules into receptive E. coli cells to improve the cells’ “competence,” i.e. , their ability to take up and establish exogenous DNA and replicate this DNA as they multiply. See ’797 patent, col. 1, ll. 11-13. A cell that accepts a lien DNA is called a transformable cell. Claim 1 of the ’797 patent claims: A process for producing transformable E. coli cells of improved competence by a process comprising the following steps in order: (a) growing E. coli in a growth-conductive medium at a temperature of 18°C to 32°C; (b) rendering said E. coli cells competent; and (c) freezing the cells.
’797 patent, col. 10, ll. 27-32 (emphasis added). Stratagene makes thirty-four competent E. coli cell lines by a process “including t he steps of incubating cells at 37°C, growing the cells in a fermenter at 26°C, and freezing the cells.” Invitrogen sued Stratagene for infringement on March 12, 2001. The district court construed the claims and then granted Stratagene’s summa ry judgment motion of non-infringement. Invitrogen appealed to this court, disputing the lower court’s

04-1273,-1274 2construction of both “improved competence” in the preamble and “growing” in step (a). This court decided that the trial court had correctly construed the term “improved competence.” Invitrogen Corp. v. Biocrest Mfg. , 327 F.3d 1364, 1370 (Fed. Cir. 2003) ( Invitrogen I ). This court noted that the te rm required only a general increase in competence, as compared wit h that generally obtained when cells are prepared by either (1) growing the cells at 37°C, render ing them competent, and freezing them, or (2) growing the cells at 37°C, rendering them competent, and not freezing them. Id. A t the same time, however, this court decided t hat the trial court had incorrectly construed “growing.” Id. This court construed that term to permit preparatory steps in advance of step (a), including growth of E. coli at a temperature outside the range in step (a). Id. Thus, the trial court received the case on remand. On remand, the trial court properly applied this court’s construction of “growing” by stating that “the temperatur e of the medium in which the E. coli cells are grown” before step (a) “does not matter.” The distri ct court then found literal infringement of claims 1, 2, 4, 5, 7, 8, 11, 14, and 15 of the ’797 paten t; decided that Claim 1 was not indefinite under 35 U.S.C. § 112, ¶ 2; and found the claims in valid under the public use provision of 35 U.S.C. § 102(b). The cour t dismissed all other motions as moot. See Invitrogen II

.

II. This court reviews a grant of summary judgment de novo , determining whether the evidence in the record raises any genuine dispute about material facts. In this review, all reasonable factual inferences are dr awn in favor of the non-moving party. See I n re Cruciferous Sprout Litig. , 301 F.3d 1343, 1346 (Fed. Cir. 2002), cert. denied ,

04-1273,-1274 3538 U.S. 907 (2003). W hether a patent is invalid due to public use under § 102(b) is a question of law based on underly ing questions of fact. Netscape Communications Corp. v. Konrad , 295 F.3d 1315, 1321 (Fed. Cir. 2002). A patent is presumed valid. 35 U.S.C. § 282 (2000). Overcomi ng the presumption requires a showing of facts proved by clear and convincing evidence. Connell v. Sears Roebuck & Co. , 722 F.2d 1542, 1549 (Fed. Cir. 1983). That standard of proof also applies in the summary judgment
context. Nat’l Presto Indus., Inc. v. W. Bend Co. , 76 F.3d 1185, 1189 (Fed. Cir. 1996). Overall, this court makes an independent determination, applying the standards for summary judgment. Group One, Ltd. v. Hallmark Cards, Inc. , 254 F.3d 1041, 1045 (Fed. Cir. 2001). The Federal Circuit applies its own law wit h respect to issues of substantive patent law and certain procedural issues pertain ing to patent law, bu t applies the law of the regional circuits on non-patent issues. Institut Pasteur v. Ca mbridge Biotech Corp. , 186 F.3d 1356, 1368 (Fed. Cir. 1999). Therefore, th is court reviews the district court’s evidentiary rulings under the la w of the United States Cour t of Appeals for the Fifth Circuit for an abuse of discretion. Snap-Drape, Inc. v. Comm'r of Internal Revenue , 98 F.3d 194, 197 (5th Cir. 1996). The parties do not dispute that Invitr ogen used the claimed process before the critical date, in its own laboratories, to produce compet ent cells. Invitrogen did not sell the claimed process or any products made with it. The record also shows that Invitrogen kept its use of t he claimed process confidential. The process was known only within the company. Stratagene does not dispute that the cl aimed process was maintained as a secret within Invitrogen until so me time after the critical date.

04-1273,-1274 435 U.S.C. § 102(b) states that a person shall be ent itled to a patent unless “ the invention was . . . in public use or on sale in this country, more than one year prior to the date of the application for pat ent in the United States.” 35 U.S.C. § 102(b) (2000) (emphasis added). In Pfaff v. Wells , the Supreme Court consi dered the meaning of the phrase “the inventi on” in § 102(b). Pfaff v. Wells Elecs., Inc. , 525 U.S. 55, 60 (1998). The Court explained that anal ysis under § 102(b) involves two separate inquiries, one evaluating whether “the invention” was comp lete and ready for patenting, and the other evaluating whether that in vention was “on sale.” Id. at 66-67. In that context, the Court found no role for this court’s “totality of the circumstances” test, which directed a court to consider the circumstances surrounding the alleged offer for sale together with the circumstances surrounding the stage of developm ent of the invention that may have been prematurely exploited in the market. See id. at 66, n.11. In pl ace of that “totality of the circumstances” test, the Court formu lated the now-familiar te st that evaluates both whether the product was subject to a commercial offer for sale ( i.e. , was it “on sale”) and whether the invention was “ready for patenting” ( i.e. , was there an “invention” at the time of the sale). See id. at 67. Following the Court’s guidance in Pfaff , this court rejected the totality of the circumstances test in the context of statutory bar disputes. See EZ Dock v. Schafer Sys., Inc. , 276 F.3d 1347, 1351 (Fed. Cir . 2002) (“[T]his court now ‘follows the Supreme Court’s two-par t test without balancing various policies according to the totality of the circumstances.’”) (quoting Weatherchem Corp. v. J.L. Clark, Inc. , 163 F.3d 1326, 1333 (Fed. Cir. 1998)). In Pfaff , the Court specifically considered t he “on sale” portion of the § 102(b) statutory bar language, but in so doing, the Court noted t hat both the “on sale” and

04-1273,-1274 5“public use” bars were based on t he same policy considerations. Id. at 64. The Court noted that both the on sale and public use bars of § 102 stem from the same “reluctance to allow an inventor to remove existing knowledge from public use.” Id. I n Pfaff , the Court applied the separate components of its test to facts raising the “on sale” issue. Nonetheless, the Court’s analysis of the statutory term “inv ention,” or the ready for patenting prong, applies to both of the other parts of section 102(b), “on sale” and “public use.” Thus, the Supreme Court’s “ready for patenting test” applies to the public use bar under § 102(b). A bar under § 102(b) arises where, bef ore the critical date, the invention is in public use and ready for patenting. This c ourt notes that in applying the Pfaff two-part test in the context of a public use bar, evidence of experimental use may negate either the “ready for patenting” or “public use” prong. See EZ Dock , 276 F.3d at 1352 (recognizing an overlap of the exper imental use negation and the ready for patenting standard). This court’s decisions in Netscape Communications Corp. v. Konrad , 295 F.3d 1315 (Fed. Cir. 2002), and Bernhardt, L.L.C. v. Co llezione Europa USA, Inc. , 386 F.3d 1371 (Fed. Cir. 2004), do not compel a different analysis. In Netscape , this court considered a possible public use and formulated it s inquiry as a “look to the totality of the circumstances when evaluating whether there has been a pub lic use within the meaning of section 102(b).” Netscape , 295 F.3d at 1320 (citing Sinskey v. Pharmacia Ophthalmics Inc. , 982 F.2d 494, 498 (Fed. Cir. 1992), a pre- Pfaff opinion). Likewise, in Bernhardt , this court stated, “[i]n determing whet her an invention was in public use, a court ‘must consider how the totality of t he circumstances comports with the policies underlying the on sale and public use bars.’” Bernhardt , 386 F.3d at 1379 (quoting

04-1273,-1274 6Manville Sales Corp. v. Paramount Sys., Inc. , 917 F.2d 544, 549 (Fed. Cir. 1990) (a prePfaff opinion)). The language in Netscape and Bernhardt should not be construed to resurrect a totality of the circumstances test for determining whether an “invention was . . . in public use . . . more than one year prio r to the date” of the patent application. 35 U.S.C. § 102(b) (2000). Such a reading of Netscape and Bernhardt would be inconsistent with Pfaff and this court’s cases abandoni ng such a balancing test. See Pfaff , 525 U.S. at 66 n.11; EZ Dock , 276 F.3d at 1351; Weatherchem , 163 F.3d at 1333. The proper test for the public use prong of the § 102(b) st atutory bar is whether the purported use: (1) was accessi ble to the public; or (2) was commercially exploited. Commercial exploitation is a clear indication of public use, but it likely requires more than, for example, a secret offer for sale . Thus, the test for the public use prong includes the consideration of evidence re levant to experiment ation, as well as, inter alia , the nature of the activity that occurred in public; public access to t he use; confidentiality obligations imposed on members of the pub lic who observed the use; and commercial exploitation, see Allied Colloids, Inc. v. Am. Cyanamid Co. , 64 F.3d 1570, 1574 (Fed. Cir. 1995). That evidence is relevant to di scern whether the use was a public use that could raise a bar to patentability, but it is distinct from evi dence relevant to the ready for patenting component of Pfaff ’s two-part test, another necessa ry requirement of a public use bar.

The district court reasoned that Strat agene had used the claimed process in its own laboratories, more than one year before the ’797 applicati on was filed, to “further other projects” beyond development of t he claimed process and to acquire a commercial advantage. Stratagene admits that it used the claimed process in its own

04-1273,-1274 7laboratories before the cr itical date to grow cells to be used in other projects within the
company. The district court determined that us e of the invention in Stratagene’s general business of widespread research generat ed commercial benefits. The district court examined the totality of the circumstances and found that this use was “public.” See Invitrogen II . Stratagene argues, however, that th is secret internal use was not “public use” under the applicable test, because it neither sold nor offered for sale the claimed process or any product derived from the process, nor did it otherwise place into the public domain either the process or any product derived from i t. Under the proper test for public use under § 102(b), these facts do not erect a bar. The basic tenet of U.S. pat ent law is that an original inventor gains an exclusive right to the invention. U.S. Const. art. I, § 8, cl. 8. Thus, an inventor’s own work cannot be used to invalidate patents protecting his own later inventive activities unless, inter alia , he places it on sale or uses it publicly more than a y ear before filing. 35 U.S.C. § 102(b); see also In re Katz , 687 F.2d 450, 454 (CCPA. 1982); In re Facius , 408 F.2d 1396, 1406 (CCPA 1969) (“[C]erta inly one’s own invention, whatever the form of disclosure to the public, may not be prior art against oneself, absent a statutory bar.”). Section 102(a) denies any applic ant for a patent an exclusiv e right to any invention already “known or used by others in this country” (emphasis added). On the other hand, § 102(b) can apply to t he inventor’s own actions. Section 102(b) expressly requires a “public use” in this country for a statutory bar to aris e based on use by the inventor himself. See Pennock v. Dialogue , 27 U.S. 1, 23 (1829) (an applicant must be the “first and true” inventor to obtain a patent, but “if he shall put [the invention] into public use, or sell it for public use before he applies for a patent . . . this should furnish

04-1273,-1274 8another bar to his claim”); Katz , 687 F.2d at 454 (“Disclosure to the public of one’s own work constitutes a bar to the grant of a pat ent claiming the subjec t matter so disclosed (or subject matter obvious therefrom).”). Fu rther, to qualify as “public,” a use must occur without any “limitation or restri ction, or injunction of secrecy.” Egbert v. Lippmann , 104 U.S. 333, 336 (1881); In re Smith , 714 F.2d 1127, 1134 (Fed. Cir. 1983). In some cases, this court has determined that a use before the critical period was not public even without an express agreement of confidentiality. See, e.g. , Moleculon Research Corp. v. CBS, Inc. , 793 F.2d 1261 (Fed. Cir. 1986) (i nventor’s private use and demonstrations to colleagues were not public). For instance, in TP Laboratories, Inc. v. Professional Publishers, Inc. , 724 F.2d 965 (Fed. Cir. 1984), t he inventor was a dentist who installed the inventive or thodontic appliance in several of his patients. Although the inventor had not obtained any expr ess promise of confidentialit y from his patients, this court did not consider the us e “public” because the dentist-pati ent relationship itself was tantamount to an express vow of secrecy. Id. at 972. In reaching that result, this court opined in general that secret use may be pub lic “within the meani ng of the statute, if the inventor is making commercial use of the in vention under circumstanc es which preserve its secrecy.” Id. ∗ This court noted specifica lly that, under the facts of TP Laboratories , it

∗ Kinzenbaw v. Deere & Co. , 741 F.2d 383 (Fed. Cir. 1984) is more definite concerning this dicta in TP Laboratories. Kinzenbaw states that commercial use trumps secrecy. Id. at 390. (“A commercial use is a public use even if it is kept secret.”) However, this statement was also dicta in Kinzenbaw , because the court did not find it necessary to resolve the question of whether t he use of the invention was secret or not. Id. A careful reading nonetheless shows that Kinzenbaw is consistent with the basic principle that a confidential use is not public under § 102 (b ) unless there is commercial exploitation. The use in Kinzenbaw was not confidential. In that case, the jury had good reason to find Deere’s widespread comme rcial exploitation of the invention “public.” The facts showed that:

04-1273,-1274 9could find no “commercial exploitation” of the invention during th e critical period, identifying “commercial exploitation” with sale of the device or a charge for its use of the invention within the confident ial confines of the com pany to generate commercial benefits. Id. at 972-73. Thus, TP Laboratories bolsters the general point that an agreement of confidentiality, or circumstances creating a sim ilar expectation of secrecy, may negate a “public use” where there is not commercial exploitation. The classical standard for assessing the public nature of a use was established in Egbert . In Egbert , the inventor of a corset spring gave two samples of the invention to a lady friend, who used t hem for more than two years before the inventor applied for a patent. Egbert , 104 U.S. at 335. The in vention was sewn into a corset and therefore, by its nature, not visible to the public. T hus, the Court had to dec ide whether such an invention could nevertheless be “public.” Although he later married the lady friend, the inventor in Egbert received no commercial advantage. Nonetheless, on these facts, the Court established the principl e that it was indeed “public” use to give or sell the

Deere’s sales branch, acting thr ough local independent dealers, made the invention available to farmers (call ed “customers” in Deere's internal memoranda) for commercial use. Deer e instructed the dealers to keep the units moving: “If one customer is not going to be using it for a few days and another customer could, please move it.” In 1973, the farmers used the planters for 1,000 hours in five states, and in 1974, for 500 hours in 11 states. By the end of 1974, 40, 000 acres had been planted with the machines. . . . [T]hree years after it began using the invent ion, Deere filed the application for its patent. Id. at 389-90. No wonder this court sust ained a finding that Deere’s wide-spread activities were “primarily for commercializing the apparatus” and therefore public. Id.

04-1273,-1274 10invention “to another, to be used by t he donee or vendee, without limitation or restriction, or injunction of secrecy.” Id. at 336. As the Supreme Court pointed out in Pfaff , supra , secrecy of use alone is not sufficient to show that existing knowl edge has not been withdrawn from public use: commercial exploitation is also forbidden. Invitrogen’s invention was not given or sold “to another,” or used to creat e a product given or sold to another, and was maintained under a strict obligation of se crecy. Without more, these circumstances are insufficient to create a public use bar to patentability. The Supreme Court decided Electric Storage Battery Co. v. Shimadzu , 307 U.S. 5 (1939), in accord with the basic principle of Egbert . In Electric Storage Battery , an accused infringer put the invent ion into “public” use. The accused infringer’s public use came about because he had independently come upon both the method and the apparatus of the patent s, and “continuously employed the alleged infringing machine and process for the production of lead oxide powder used in the manufacture of plates for storage batteries which have been sold in quantity.” Id. Thus, that case was marked by an outright commercial use of the inv ention by someone other than the applicant, long before the applicant’s filing date. Those facts allowed the Court to invalidate the patents at issue, and to observe that “[t]he ordinary use of a machine or the practice of a process in a factory in the usual course of producing articles for commercial purposes is a public use.” Id. at 20. Invitrogen, on the other hand, did not sell its invention or any products made with it, and kept the invention entirely conf idential within the company, distinguishing this case from Electric Storage Battery

.

04-1273,-1274 11While there are instances in which a secret or confi dential use of an invention will nonetheless give rise to the public use bar, this is not such a case. In Metallizing Engineering Co. v. Kenyon Bearing & Auto Parts Co. , 153 F.2d 516 (2d Cir. 1946), the patentee used a secret process to recondition worn metal parts for its customers before the critical date. The Second Circuit corre ctly held “that it is a condition upon an inventor’s right to a patent that he shall not exploit his discove ry competitively after it is ready for patenting; he must c ontent himself with either se crecy, or [a patent].” Id. at 520. In contrast, there is no evidence that Invitrogen received compensation for internally, and secretly, exploiting its cells. The fact that Invi trogen secretly used the cells internally to develop future products that were never sold, without more, is insufficient to create a public use bar to patentability.

III. Stratagene argues that it does not infringe the ’797 pat ent because its cells do not have “improved competence” as requir ed by the patent’s preamble, although it admits that it practices each and every element of Claim 1, and does so in the claimed order. To settle this question, the court or dered tests on each of Stratagene’s thirty-four cell strains, to determine whether they exhi bited “improved competence.” The tests compared cells grown at 37°C, rendered com petent, then frozen, wit h cells grown at 37°C, rendered competent, but not frozen, and with cells prepared using the claimed process. Invitrogen’s expert supervised thes e tests. The tests showed that twentyeight strains made using t he Stratagene process exhibited enhanced competence, five exhibited decreased competenc e, and one exhibited no change.

04-1273,-1274 12Stratagene argues that those te sts, presented in the form of an affidavit from the Invitrogen expert, are inadmissi ble. Stratagene contends that the affidavit lacks credibility because the expert did not conduc t the tests personally, and thus does not have sufficient “personal knowledge” of the resu lts. To the contrary, the district court carefully considered the admissi bility of this evidence, and concluded that the expert had obtained sufficient personal knowledge through review of the records of the tests. This court detects no abuse of discretion in the district c ourt’s decision to admit that evidence. Stratagene also argues that the tests rais e a genuine issue of material fact about the improved competence of Stratagene’s samp les, because some of the samples did not exhibit improved competenc e. Again, to the contrary, a great majority of Stratagene’s samples did exhibit improved com petence. The claim requires that the quantity of E. coli cells that take up and es tablish exogenous DNA to be generally increased . The tests show that general incr ease. In addition, Stratagene’s own inventor had recorded in his notebooks that he found “improved competence” when the cells of several cell lines were grown within the claimed range. The record contains no evidence that contradicts t he general increase in competenc e observed in the tests. Therefore, the trial court properly resolved this issue as well.

IV. Stratagene also argues that the ’797 patent is invalid for indefiniteness, objecting to the phrase “improved competence.” A claim is definite if “one skilled in the art would understand the bounds of the claim when read in light of the specification.” Personalized Media Communications, LLC v. ITC , 161 F.3d 696, 705 (Fed. Cir. 1998) . Claims are

04-1273,-1274 13indefinite “if reasonable efforts at claim construc tion prove futile,” that is, if a claim “is insolubly ambiguous, and no narrowing cons truction can properly be adopted.” Exxon Research & Eng’g Co. v. United States , 265 F.3d 1371, 1375 (Fed. Cir. 2001). Even if it is a formidable task to understand a claim, and the result not unanimously accepted, as long as the boundaries of a claim may be underst ood it is “sufficiently clear to avoid invalidity [for] indefiniteness.” Id. at 1375. Because this court construed the phrase “improved competence” in Invitrogen I such that one skilled in the art would understand the bounds of the claim, this court detec ts no unacceptable indefiniteness in that language in this appeal. The claim is not “ins olubly ambiguous,” i.e., not indefinite. Stratagene further argues that it would have had to practice the claimed process in order to determine if it was infringi ng, even though “[t]he pr imary purpose of the definiteness requirement is to ens ure that the claims are writt en in such a way . . . that interested members of the public . . . can determine whether or not they infringe.” Oakley, Inc. v. Sunglass Hut Int’l , 316 F.3d 1331, 1340 (Fed. Cir . 2003). Indeed, the lower court had to have separate side-by -side tests done to determine whether Stratagene infringed, and other testimony indicates that tests were necessary to determine infringement. However, Oakley goes on to explain that “a patentee need not define his invention with mathem atical precision in order to comply with the definiteness requirement.” Id. at 1341. Stratagene is really talk ing about the difficulty of avoiding infringement, not indefiniteness of the clai m. “The test for indefiniteness does not depend on a potential infringer’s ability to ascertain the nature of its own accused product to determine infringement, but inst ead on whether the claim delineates to a skilled artisan the bounds of the invention.” SmithKline Beecham Corp. v. Apotex Corp. ,

04-1273,-1274 14403 F.3d 1331, 1341 (Fed. Cir. 2005). This court’ s and the district court’s constructions of the claim showed that it contained no material ambiguities, and therefore was not invalid for indefiniteness. See All Dental Prodx, LLC v. Advantage Dental Prods., Inc. , 309 F.3d 774, 780 (Fed. Cir. 2002).

V. Finally, Stratagene asks this court to consider its affirmative defenses of enablement, anticipation, and obviousness, as al ternate grounds for invalidity. Final judgment by the district c ourt included an order that in validated the ’797 patent based on public use under § 102(b), and on no other ground. The district court declared moot the other invalidity claims and made no final judgment on them . Therefore, under 28 U.S.C. § 1295(a)(1) (final judgment rule), this court declines to assert jurisdiction to consider an appeal on these issues.

This court reverses the trial court’s judgment of invalidit y due to public use, affirms the trial court’s partial summary judgment of infrin gement and denial of Stratagene’s motion for summary judgment of invalidity due to indefiniteness, and remands the case for further proceedings.

COSTS Each party shall bear its own costs. AFFIRM-IN-PART, REVERSE-IN-PART, and REMAND

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