NOTE: This disposition is nonprecedential.
`United States Court of Appeals
`for the Federal Circuit
`__________________________
`
`CIMLINE, INC.,
`Plaintiff-Appellant,
`
`v.
`CRAFCO, INC.,
`Defendant-Appellee.
`__________________________
`2010-1348
`__________________________
`Appeal from the United States District Court for the
`District of Minnesota in case no. 07-CV-3997, Judge
`Richard H. Kyle.
`__________________________
`
`Decided: March 2, 2011
`__________________________
`PAUL R. SMITH, Foley & Mansfield, PLLP, of Minnea-
`polis, Minnesota, argued for plaintiff-appellant. With him
`on the brief was LAURIS A. HEYERDAHL.
`
`
`CASEY A. KNISER, Patterson Thuente Christensen
`Pedersen, P.A., of Minneapolis, Minnesota, argued for
`defendant-appellee. With him on the brief was ERIC H.
`CHADWICK.
`
`Page 1 of 16
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`
`United States Court of Appeals
`for the Federal Circuit
`__________________________
`
`CIMLINE, INC.,
`Plaintiff-Appellant,
`
`v.
`CRAFCO, INC.,
`Defendant-Appellee.
`__________________________
`2010-1348
`__________________________
`Appeal from the United States District Court for the
`District of Minnesota in case no. 07-CV-3997, Judge
`Richard H. Kyle.
`__________________________
`
`Decided: March 2, 2011
`__________________________
`PAUL R. SMITH, Foley & Mansfield, PLLP, of Minnea-
`polis, Minnesota, argued for plaintiff-appellant. With him
`on the brief was LAURIS A. HEYERDAHL.
`
`
`CASEY A. KNISER, Patterson Thuente Christensen
`Pedersen, P.A., of Minneapolis, Minnesota, argued for
`defendant-appellee. With him on the brief was ERIC H.
`CHADWICK.
`
`Page 1 of 16
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`CIMLINE v. CRAFCO
`
`
`
`2
`
`__________________________
`Before RADER, Chief Judge, GAJARSA and PROST, Circuit
`Judges.
`
`PROST, Circuit Judge.
`
`
`Plaintiff-Appellant Cimline, Inc. (“Cimline”) appeals
`the district court’s dismissal of its complaint seeking,
`inter alia, a declaration of invalidity or noninfringement
`of U.S. Patent No. 5,967,375 (“’375 patent”) and the
`court’s sua sponte entry of summary judgment in favor of
`Defendant-Appellee Crafco, Inc. (“Crafco”) on its counter-
`claim for infringement. Cimline, Inc. v. Crafco, Inc., 672
`F. Supp. 2d 916 (D. Minn. 2009). Thereafter, the parties
`stipulated to $25,000 in damages for infringement of the
`’375 patent and the district court entered an injunction
`against Cimline. We affirm-in-part, vacate-in-part and
`reverse-in-part the district court’s judgment because the
`’375 patent is invalid.
`
`BACKGROUND
`
`Cimline and Crafco are competitors in the market for
`the manufacture and sale of sealant melters. Sealant
`melters are heavy machinery equipment that are often
`trailered and used to heat and melt blocks of sealant. The
`melted sealant is poured into cracks in roadway surfaces
`to seal them and prevent further deterioration of the
`roadway. Early sealant melters did not include conveyor
`belts. Thus, heavy sealant blocks were hoisted to the top
`of the sealant melter box and dropped into a reservoir
`tank, sometimes called the “kettle.” This manual task
`posed some danger to the operator, since the sealant
`blocks are heavy and can cause hot sealant to splash back
`
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`CIMLINE v. CRAFCO
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`3
`
`onto the operator when dropped into the kettle. Hot
`sealant can cause serious burns.
`In the mid-1990s, employees of the Pennsylvania De-
`partment of Transportation (“PennDOT”) sought a better
`way to load sealant blocks into the melter. PennDOT
`made modifications to sealant melters purchased from
`Crafco. Specifically, PennDOT added a manual conveyor
`belt attached to a splash box affixed at the top of the
`kettle. Propelled by gravity, sealant blocks would travel
`down the manual conveyor belt and drop through a
`hinged door at the top of the splash box. The hinged door
`would prevent hot sealant from splashing back when the
`sealant block was dropped into the kettle. Because seal-
`ant blocks traveled down the manual conveyor belt under
`the force of gravity, only one block at a time could be
`loaded onto the conveyor belt.
`Crafco sent an employee to PennDOT to observe the
`modifications to its machine. Thereafter, Crafco sent a
`letter to PennDOT warning it that Crafco would not
`honor the warranty on modified sealant melters and that
`Crafco could not be held liable for injuries resulting from
`use of the modified melters. Later, Crafco attended a
`sales meeting with PennDOT and PennDOT requested
`that Crafco make a sealant melter similar to the modified
`melters, but having a powered conveyor belt that could
`drop sealant blocks through a splash box. Crafco agreed
`and assigned the redesign project to a new employee, Mr.
`David Barnes. Ultimately, Mr. Barnes, the named inven-
`tor, delivered a redesigned sealant melter satisfying
`PennDOT’s requirements and Crafco filed a patent appli-
`cation on this redesign, which matured into the ’375
`patent.
`
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`CIMLINE v. CRAFCO
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`
`Though the extent of Mr. Barnes’s knowledge of the
`scope of the prior art at the time of invention is in dis-
`pute, the actual scope of the prior art is not. First, Crafco
`sold sealant melters without conveyor belts or splash
`boxes in the 1990s. Those sealant melters were modified
`by PennDOT to add manual conveyor belts and splash
`boxes. The record evidence shows, however, that Crafco
`built and delivered sealant melters to the Texas Depart-
`ment of Transportation in the 1980s. Those sealant
`melters included both a manual conveyor belt and a
`splash box. It is unclear why Crafco sold sealant melters
`without a conveyor belt and a splash box to PennDOT in
`the 1990s when it had previously sold sealant melters
`with a conveyor belt and a splash box in the 1980s. It is
`undisputed, however, that sealant melters using a man-
`ual conveyor belt and a splash box were in the prior art
`since at least the 1980s.
`The ’375 patent issued on October 19, 1999, with
`twenty-three claims. Crafco asserts three dependent
`claims: claims 4, 5, and 23. Claims 4 and 5 depend from
`claim 1, which requires:
`A sealant melter, comprising:
`(A) mobile frame;
`(B) heated sealant tank mounted on said frame,
`said sealant tank having a liquid sealant dis-
`charge opening and an upper sealant block inlet
`opening;
`(C) a splash box disposed above said inlet opening
`of said sealant tank, said splash box having an
`upper splash box inlet and having a lower splash
`
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`CIMLINE v. CRAFCO
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`box outlet disposed above said inlet opening of
`said sealant tank; and
`(D) a sealant block conveyor which conveys seal-
`ant blocks from a source to said splash box inlet,
`said sealant block conveyor having 1) a discharge
`end positioned adjacent said splash box inlet and
`2) an inlet end; and wherein said inlet end of said
`sealant block conveyor is vertically adjustable
`relative to said frame.
`
`5
`
`
`Claim 4 adds the requirement that the “sealant block
`conveyor is a powered conveyor” and claim 5 adds a
`requirement to the sealant melter of claim 4, wherein the
`device includes a control assembly mounted at the inlet
`end of the sealant block conveyor. J.A. 73. Claim 23
`depends from independent claim 21, which includes
`additional limitations on the dimensions of the splash box
`and a requirement that the splash guard close before the
`sealant block enters the pool of melted sealant in the
`kettle. Figure 1, shown below, includes a depiction of an
`exemplary embodiment of a sealant melter being towed by
`a vehicle.
`
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`6
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`CIMLINE v. CRAFCO
`
`
`
`
`In 2000, Crafco offered to sell its patented device to
`Cimline. Cimline did not respond. Several years later,
`Cimline offered to rent its new sealant melters to Penn-
`DOT. Crafco advised Cimline that the Cimline sealant
`melters copied Crafco’s patented technology. Cimline
`then built a sealant melter that it thought designed
`around the ’375 patent. Crafco, however, continued to
`assert that Cimline’s redesign infringed the ’375 patent.
`Thus, Cimline filed suit against Crafco seeking, inter alia,
`a declaration that the ’375 patent is invalid, or alterna-
`tively—if the ’375 patent is valid—a declaration that
`Cimline’s sealant melter does not infringe.
`Upon Crafco’s motion for summary judgment on the
`counts alleged in Cimline’s complaint, the district court
`dismissed Cimline’s invalidity count noting that “Cimline
`has not satisfied its burden of creating a genuine issue of
`fact concerning invalidity” under 35 U.S.C. §§ 102(b) and
`103(a). Cimline, 672 F. Supp. 2d at 927. The district
`court sua sponte granted summary judgment to Crafco on
`infringement of the ’375 patent under the doctrine of
`equivalents by Cimline’s sealant melter. Id. at n.16. The
`
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`7
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`district court dismissed all claims of the complaint with
`prejudice and entered an injunction against Cimline.
`Cimline appealed and we have jurisdiction under 28
`U.S.C. § 1295(a)(1).
`
`DISCUSSION
`
`We review a district court’s grant of summary judg-
`ment de novo. Revolution Eyewear, Inc. v. Aspex Eyewear,
`Inc., 563 F.3d 1358, 1365 (Fed. Cir. 2009). Summary
`judgment is appropriate where there is no genuine issue
`of material fact and the moving party is entitled to judg-
`ment as a matter of law. Fed. R. Civ. P. 56(c); AquaTex
`Indus., Inc. v. Techniche Solutions, 419 F.3d 1374, 1379
`(Fed. Cir. 2005). Thus, summary judgment may be
`granted when no “reasonable jury could return a verdict
`for the nonmoving party.” Anderson v. Liberty Lobby,
`Inc., 477 U.S. 242, 248 (1986).
`A court of appeals, in the absence of a formal counter-
`claim or cross-motion requesting relief, may nonetheless
`enter judgment in favor of the non-moving party when
`there are no material issues of fact in dispute and the
`parties have had the opportunity to argue all relevant
`issues. See First Nat’l Bank v. Md. Cas. Co., 290 F.2d 246
`(2d Cir. 1961), cert. denied, 368 U.S. 939 (1961); Procter &
`Gamble Indep. Union v. Procter & Gamble Mfg. Co., 312
`F.2d 181 (2d Cir. 1962), cert. denied, 374 U.S. 830 (1963);
`see, e.g., UMC Elecs. Co. v. United States, 816 F.2d 647,
`657 (Fed. Cir. 1987), cert. denied, 484 U.S. 1025 (1988)
`(when facts are undisputed and issue is solely one of law,
`appellate court need not remand but may resolve issue);
`Genentech, Inc. v. Novo Nordisk A/S, 108 F.3d 1361, 1368
`(Fed. Cir. 1997) (invalidating patent for failure to meet
`the enablement requirement when the parties’ arguments
`had been fully vetted); see also Campaign for Family
`
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`CIMLINE v. CRAFCO
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`Farms v. Glickman, 200 F.3d 1180, 1186-87 (8th Cir.
`2000); 28 U.S.C. § 2106 (“The Supreme Court or any other
`court of appellate jurisdiction may affirm, modify, vacate,
`set aside or reverse any judgment, decree, or order of a
`court lawfully brought before it for review, and may
`remand the cause and direct the entry of such appropriate
`judgment, decree, or order, or require such further pro-
`ceedings to be had as may be just under the circum-
`stances.”); 10A Charles Alan Wright, Arthur R. Miller &
`Mary Kay Kane, Federal Practice and Procedure §§ 2716,
`2720 (3d ed. 1998).
`‘‘Obviousness is a question of law based on underlying
`findings of fact.’’ In re Kubin, 561 F.3d 1351, 1355 (Fed.
`Cir. 2009). A patent is invalid for obviousness “if the
`differences between the subject matter sought to be
`patented and the prior art are such that the subject
`matter as a whole would have been obvious at the time
`the invention was made to a person having ordinary skill
`in the art to which said subject matter pertains.” 35
`U.S.C. § 103(a). The underlying factual inquiries are (1)
`the scope and content of the prior art, (2) the differences
`between the prior art and the claims at issue, (3) the level
`of ordinary skill in the art, and (4) any relevant secondary
`considerations, such as commercial success, long felt but
`unsolved needs, and the failure of others. KSR Int’l Co. v.
`Teleflex Inc., 550 U.S. 398, 406 (2007) (citing Graham v.
`John Deere Co., 383 U.S. 1, 17-18 (1966)).
`I
`
`The district court determined that Cimline failed to
`offer sufficient evidence of obviousness necessary to
`satisfy its burden of demonstrating a genuine issue of
`material fact to survive summary judgment. In particu-
`lar, the district court noted that Cimline did “little more
`
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`9
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`than point to the products Crafco sold in the 1980s and
`PennDOT’s modifications and then assert, in a conclusory
`fashion, that the ’375 patent must have been obvious in
`light of those products.” Cimline, 672 F. Supp. 2d at 925.
`Though the issue of obviousness was scantly briefed to the
`district court, the parties’ oral argument to this court
`focused primarily on the obviousness issue, with the
`parties agreeing that there are no material issues regard-
`ing the underlying factual inquiries on the legal determi-
`nation of obviousness. See, e.g., Oral Argument at 4:27-
`48,
`available at
`http://oralarguments.cafc.uscourts.gov/Audiomp3/2010-
`1348.MP3. We agree that there are no genuine issues of
`fact regarding the underlying factual inquiries of the
`obviousness analysis and address each factor in turn.
`The scope and content of the prior art and the differ-
`ences between the prior art and the claims at issue are
`not in dispute. The prior art includes sealant melters
`built by Crafco in the 1980s and sold to the Texas De-
`partment of Transportation. Those sealant melters
`included splash boxes and manual conveyor belts. Like-
`wise, the sealant melters modified by PennDOT in the
`mid-1990s included splash boxes and manual conveyor
`belts. The prior art also includes powered conveyor belts
`like those used in the mining industry. Mr. Barnes, the
`named inventor of the ’375 patent, testified that powered
`conveyor belts existed for perhaps as many as seventy-
`five years. When compared to the prior art, the asserted
`claims of the ’375 patent differ in only one way: the use of
`a powered conveyor controlled by a switch. Though
`Crafco asserts that the splash box limitations of claim 23
`also differentiate its invention from the prior art, the
`testimony of inventor Barnes indicates that the splash
`box of the PennDOT sealant melter was the same as the
`splash box of the ’375 patent.
`
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`CIMLINE v. CRAFCO
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`There is no dispute regarding the level of ordinary
`skill in the art. Further, the parties do not dispute any
`evidence regarding secondary considerations. For in-
`stance, at oral argument, Cimline was questioned regard-
`ing the existence of factors such as long felt need and the
`delay in combining powered conveyor belts with sealant
`melters. Oral Argument at 5:28-7:00. Crafco, however,
`offered no response to Cimline’s answers. Thus, no issue
`of fact exists regarding the underlying factual inquiries of
`the obviousness analysis.
`Cimline argues that the ’375 patent is obvious be-
`cause it discloses an invention that is merely the combi-
`nation of prior art sealant melters—having manual
`conveyor belts and splash guards—with powered conveyor
`belts. Citing the report of its expert, Cimline argues that
`powered conveyor belts were in the prior art since at least
`the 1980s and for at least seventy-five years, according to
`the inventor of the ’375 patent. Cimline contends that
`Crafco’s combination of prior art sealant melters with a
`powered conveyor belt yielded nothing “more than the
`predictable use of prior art elements according to their
`established functions.” KSR, 550 U.S. at 417. Also,
`Cimline argues that the district court incorrectly sug-
`gested that “the focus instead must be on whether there
`exists ‘a reason that would have prompted a person of
`ordinary skill in the relevant field to combine’ a powered
`conveyor with a sealant melter.” Id. at 418; Appellant Br.
`at 38. Cimline further asserts that the district court
`erred in failing to apply common sense to determine that
`the combination of prior art sealant melters with powered
`conveyor belts is obvious.
`Crafco responds that the district court correctly de-
`termined that Cimline offered “almost no evidence to
`support its allegations of obviousness.” Appellee Br. at 8.
`
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`Crafco asserts that the conclusory opinions of Cimline’s
`expert failed to create any genuine issue of fact regarding
`obviousness and the district court was correct to discredit
`this evidence. See Innogenetics N.V. v. Abbott Labs., 512
`F.3d 1363, 1373-74 (Fed. Cir. 2008). Specifically, Crafco
`asserts that although powered conveyors were in the prior
`art, the prior use of these conveyors did not address the
`safety aspects addressed by the ’375 patent. According to
`Crafco, the use of the powered conveyor belt in the ’375
`patent improves the safety of the sealant melter by allow-
`ing sealant blocks to be lined up end-to-end while the
`operator drops them one-by-one into the melter, thereby
`avoiding harmful burns from hot sealant splashing back
`on the operator.
`
`II
`
`As a preliminary matter, we find fault with the dis-
`trict court’s reliance on pre-KSR decisions and its focus on
`whether there existed explicit teachings as to “a reason
`that would have prompted a person of ordinary skill in
`the relevant field to combine” a powered conveyor with a
`sealant melter. Cimline, 672 F. Supp. 2d at 926. The
`Supreme Court set forth a flexible inquiry in KSR, which
`allows for a court “to take account of ‘the inferences and
`creative steps,’ or even routine steps, that an inventor
`would employ.” Ball Aerosol & Spec. Container v. Ltd.
`Brands, 555 F.3d 984, 993 (Fed. Cir. 2009). When taking
`these inferences and creative or routine steps into ac-
`count, it may be proper to conclude that the result of a
`“combination [of prior art] would have been entirely
`predictable and grounded in common sense” under the
`proper set of facts. Id.
`Our cases which have relied on “common sense” con-
`sistently teach that “factfinders may use common sense in
`
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`CIMLINE v. CRAFCO
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`addition to record evidence” to determine the legal issue
`of obviousness. Perfect Web Tech., Inc. v. InfoUSA, Inc.,
`587 F.3d 1324, 1329 (Fed. Cir. 2009); see also Wyers v.
`Master Lock Co., 616 F.3d 1231, 1239 (Fed. Cir. 2010);
`Ball Aerosol, 555 F.3d at 993. In bridging the gap be-
`tween prior art references and a conclusion of obvious-
`ness, the factfinder may rely on the prior art references
`themselves, the knowledge of those of ordinary skill in the
`art, the nature of the problem to be solved, market forces,
`design incentives, the “interrelated teachings of multiple
`patents,” “any need or problem known in the field of
`endeavor at the time of invention and addressed by the
`patent,” or the background knowledge, creativity, and
`common sense of the person of ordinary skill. KSR, 550
`U.S. at 418–21; see also Ruiz v. A.B. Chance Co., 234 F.3d
`654, 665 (Fed. Cir. 2000). While we note that the district
`court was without the benefit of our opinions in Perfect
`Web and Wyers at the time of its opinion,1 these cases on
`“common sense” derive from the Supreme Court’s direc-
`tion in KSR and we apply the law as it stands today.
`The ’375 patent discloses a sealant melter having a
`powered conveyor and a splash guard box. As compared
`to the prior art, the ’375 patent differs only in that the
`prior art used a manual, gravity-propelled conveyor belt.
`The improvement achieved by the modification disclosed
`in the ’375 patent in using a powered conveyor belt,
`rather than a manual conveyor belt, is that multiple
`blocks of sealant could be placed end-to-end on a conveyor
`belt. The operator could then cause single blocks of
`sealant to drop into the melter one-by-one by toggling a
`
`
`1 Our opinion in Perfect Web issued on the same day
`that Judge Kyle issued his opinion, Cimline, 672 F. Supp.
`2d at 916. Our opinion in Wyers followed later.
`
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`remote switch, as needed, to complete a roadway mainte-
`nance project.
`The combination of prior art sealant melters having a
`manual conveyor belt with a powered conveyor belt re-
`quires nothing more than common sense to appreciate the
`resultant advantage. The claimed invention of the ’375
`patent represents no more than “the predictable use of
`prior art elements according to their established func-
`tions.” KSR, 550 U.S. at 417. Further, it is clear that a
`person of ordinary skill would have perceived a reason-
`able expectation of success in the combination of these
`two elements of the prior art. See In re O’Farrell, 853
`F.2d 894, 904 (Fed. Cir. 1988) (“For obviousness under §
`103, all that is required is a reasonable expectation of
`success.”). None of Crafco’s arguments to the contrary are
`convincing. The teachings of “common sense” in this case
`derive not only from the nature of the problem to be
`solved, but also from market forces themselves. As to the
`nature of the problem to be solved, the record evidence
`shows that it is common sense that an object, such as
`coal, can travel along a powered conveyor and will stop
`when the power to the conveyor is turned off. J.A. 384-86.
`As to market forces, these are clearly evidenced by the
`sales meeting and production request that PennDOT
`made of Crafco after Crafco witnessed PennDOT’s modifi-
`cations to early Crafco sealant melters.
`Crafco’s argument that the district court correctly
`found a lack of evidence as to obviousness and properly
`discounted the evidentiary value of Cimline’s expert
`report is likewise unavailing. The obviousness analysis
`may “include recourse [by the factfinder] to logic, judg-
`ment, and common sense available to the person of ordi-
`nary skill that do[es] not necessarily require explication
`in any reference or expert opinion.” Perfect Web, 587 F.3d
`
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`at 1329. By extension, expert reports—even credible
`experts reports—are not required when the underlying
`factual considerations are resolved by resort to common
`sense. Here, the technology is easily understandable,
`even without the assistance of expert opinion. Centricut,
`LLC v. Esab Group, Inc., 390 F.3d 1361, 1369 (Fed. Cir.
`2004). Thus, the district court erred in concluding that a
`lack of evidence existed as to the underlying factual
`considerations of the obviousness analysis. Cimline, 672
`F. Supp. 2d at 926-27. The court further erred in apply-
`ing the heightened burden placed on expert reports opin-
`ing as to obviousness by Innogenetics. 512 F.3d at 1363
`(requiring a heightened burden of explanation in an
`expert report regarding motivation to combine references
`for a technology involving the detection and classification
`of hepatitis C genotypes in a biological sample). Our
`cases distinguish the need for and breadth of required
`expert disclosure when the underlying technology is
`“easily understandable.” Compare Perfect Web, 587 F.3d
`at 1329-30 with Innogenetics, 512 F.3d at 1363.
`While unnecessary in an obviousness analysis where
`the factual inquiries are resolved by application of com-
`mon sense, Perfect Web, 587 F.3d at 1329, we note that
`Cimline’s submitted expert report in this case acknowl-
`edges that conveyors are nothing new in the industry and
`powering a conveyor is something that has been done in
`the past and is not technically difficult to accomplish. We
`agree. The automation of mechanical equipment once
`operated manually is commonplace and reasonably obvi-
`ous to one of ordinary skill. See, e.g., Leapfrog Enters. v.
`Fisher–Price, Inc., 485 F.3d 1157, 1161 (Fed. Cir. 2007)
`(“Accommodating a prior art mechanical device . . . to
`modern electronics would have been reasonably obvious to
`one of ordinary skill . . . .” and “has been commonplace in
`
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`recent years.”). This evidence fully supports our conclu-
`sion that the ’375 patent is invalid for obviousness.
`CONCLUSION
`
`This case presents the rare procedural occurrence in
`which the Appellant, Cimline, failed to file a cross-motion
`for summary judgment in response to Crafco’s motion for
`summary judgment. The parties have had an opportunity
`to be fully heard, however, and there are no disputed
`issues of material fact regarding obviousness. Thus, the
`legal determination of obviousness is amenable to com-
`plete adjudication upon appellate review and we exercise
`our authority and discretion to decide this case in the
`interest of judicial economy. See Brown v. J.B. Hunt
`Transp. Servs., Inc., 586 F.3d 1079, 1088 n.6 (8th Cir.
`2009) (disposing of appellant’s claims on appellate review
`despite appellant’s failure to file a cross-motion for sum-
`mary judgment, where the facts were undisputed); 28
`U.S.C. § 2106.
`We conclude that it is a matter of common sense to
`combine a prior art sealant melter with a powered con-
`veyor to create the sealant melter claimed in the ’375
`patent. The intended results achieved by this combina-
`tion would be perceived as having a reasonable expecta-
`tion of success to a person of ordinary skill. Therefore,
`the district court’s dismissal with prejudice of Cimline’s
`invalidity and noninfringement counts in its Amended
`Complaint is vacated. The district court’s entry of stipu-
`lated damages and an injunction against Cimline is also
`vacated. The court’s grant of summary judgment in favor
`of Crafco on validity and infringement is reversed. We
`affirm-in-part the district court’s summary determination
`as to Cimline’s antitrust and unfair competition claims.
`Judgment is entered in favor of Cimline on its invalidity
`
`Page 15 of 16
`
`FORD 1223
`
`
`
`16
`
`CIMLINE v. CRAFCO
`
`
`
`and noninfringement counts because we hold that the ’375
`patent is invalid.
`AFFIRMED-IN-PART, VACATED-IN-PART,
`REVERSED-IN-PART
`
`Page 16 of 16
`
`FORD 1223
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