Eidos Display, LLC v. Au Optronics Corporation , 779 F.3d 1360 ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
EIDOS DISPLAY, LLC, EIDOS III, LLC,
Plaintiffs-Appellants
v.
AU OPTRONICS CORPORATION, AU OPTRONICS
CORPORATION AMERICA, CHI MEI INNOLUX
CORPORATION, CHI MEI OPTOELECTRONICS
USA INC., CHUNGHWA PICTURE TUBES, LTD.,
HANNSTAR DISPLAY CORPORATION,
HANNSPREE NORTH AMERICA, INC.,
Defendants-Appellees
______________________
2014-1254
______________________
Appeal from the United States District Court for the
Eastern District of Texas in No. 6:11-cv-00201-LED-JDL,
Chief Judge Leonard Davis.
______________________
Decided: March 10, 2015
______________________
ROBERT TYLER GOODWYN, McKenna Long & Aldridge
LLP, Washington, DC, argued for plaintiffs-appellants.
Also represented by GASPARE JOSEPH BONO, CASS WALKER
CHRISTENSON, ROBERT C. NISSEN.
CHRISTOPHER BENSON, Austin, TX, argued for defend-
ants-appellees. Defendant-appellee Chunghwa Picture
2 EIDOS DISPLAY, LLC v. AU OPTRONICS CORPORATION
Tubes, Ltd., also represented by DANIEL LEVENTHAL, PAUL
ANDREW DYSON, ERIC B. HALL, Norton Rose Fulbright,
Houston, TX. Defendants-appellees AU Optronics Corpo-
ration, AU Optronics Corporation America, also repre-
sented by MARVIN CRAIG TYLER, BRIAN A. DIETZEL,
GEOFFREY WILLIAM HEAVEN, Wilson, Sonsini, Goodrich &
Rosati, PC, Austin, TX. Defendants-appellees Chi Mei
Innolux Corporation, Chi Mei Optoelectrics, USA Inc.,
Hannspree North America, Inc., Hannstar Display Corpo-
ration, also represented by MING-TAO YANG, JACOB ADAM
SCHROEDER, Finnegan, Henderson, Farabow, Garrett &
Dunner, LLP, Palo Alto; EDWARD ROBERT YOCHES, Wash-
ington, DC.
______________________
Before WALLACH, TARANTO, and CHEN, Circuit Judges.
CHEN, Circuit Judge.
Plaintiff-Appellants Eidos Display, LLC and Eidos III,
LLC (Eidos) appeal from the district court’s grant of a
motion for summary judgment, finding the asserted claim
of U.S. Patent No. 5,879,958 (the ’958 patent) to be invalid
as indefinite. Because the claim, when read in light of the
specification and prosecution history, informed with
reasonable certainty those skilled in the art at the time
the patent was filed about the scope of the claimed inven-
tion, we reverse the district court’s grant of summary
judgment of indefiniteness, and remand to the district
court for further proceedings consistent with our decision.
BACKGROUND
Eidos alleges AU Optronics Corporation, AU Optron-
ics Corporation America, Chi Mei Innolux Corporation,
Chi Mei Optoelectronics USA Inc., Chunghwa Picture
Tubes, Ltd., Hannstar Display Corporation, and
Hannspree North America, Inc. (collectively, “Display
Manufacturers”) infringe claim 1 of the ’958 patent. The
’958 patent is directed toward manufacturing processes
EIDOS DISPLAY, LLC v. AU OPTRONICS CORPORATION 3
for an electro-optical device, such as a liquid crystal
display (LCD).
The specification of the ’958 patent contains 17 em-
bodiments, each identified by a letter (A through H, J,
and L through S). Each embodiment describes a manu-
facturing process that reduces the number of photolitho-
graphic steps in creating an LCD panel compared to prior
art processes, lowering the production cost and improving
yield and production efficiency. ’958 patent, 1:19–3:37
(describing the prior art as containing seven photolitho-
graphic steps), 4:39–14:18 (describing the invention as
containing four or five photolithographic steps), 14:31–37
(comparing the invention to the prior art). Each embodi-
ment is broken down into a series of “forming” steps that
deposit material, such as metal, insulator, or passivation
material, on the substrate or previous layers, as well as a
series of “photolithographic” steps that etch or remove
portions of previously-formed material. For example, the
seventh embodiment, identified by the letter “G,” contains
five forming steps—G1, G3, G5, G7, and G9—sequentially
interspersed with five photolithographic steps—G2, G4,
G6, G8, and G10. Id. at 8:33–67. The specification de-
scribes the manufacturing process for each disclosed
embodiment with reference to the figures. For example,
figures 54 through 63 depict the process steps of the G
embodiment. Id. at 18:9–44, 35:31–36:65.
The circuitry in the LCD devices formed by the pa-
tented manufacturing processes is the same as circuitry
formed by a prior art manufacturing process. Id. at 1:16–
18. An example of such a prior art circuit is found in
figure 169, reproduced below. Id. 1 Figure 169 shows a
matrix with source wiring (S1, S2, S3, . . . Sn) forming the
vertical lines and gate wiring (G1, G2, G3, . . . Gn) form-
1 Line 16 of column 1 erroneously refers to “FIG.
169” as “FIG. 165.”
4 EIDOS DISPLAY, LLC v. AU OPTRONICS CORPORATION
ing the horizontal lines. Id. at 1:19–23. The source
wiring is connected to a signal supply circuit to provide
image data, and the gate wiring is connected to a scan-
ning circuit to provide control signals. Id.; Appellants’ Br.
at 6–7.
Important to this appeal, the electrical connection be-
tween a source wire and the signal supply circuit is called
a source wiring connection terminal. The electrical con-
nection between a gate wire and the scanning circuit is
called a gate wiring connection terminal. In an LCD
panel, there are many individual source and gate wires,
each with a connection terminal located at the end of the
wire. Appellants’ Br. at 7 (citing Eidos Display, LLC v.
AU Optronics Corp., No. 6:11-cv-201 LED-JDL, 2013 WL
1559729, at *5 (E.D. Tex. Apr. 12, 2013)). During the
relevant LCD manufacturing process, a non-conductive
passivation film is formed on top of the wiring and con-
nection terminals. See ’958 patent, 58:34–36 (Step G7).
The passivation film is then etched away to allow the
scanning and signal supply circuits to connect to the
terminals. See id. at 58:37–41 (Step G8). Experts for
EIDOS DISPLAY, LLC v. AU OPTRONICS CORPORATION 5
both parties agree that, at the time of the ’958 patent, the
only industry practice for this manufacturing process was
to create individual holes, referred to as “contact holes,”
through the passivation film to each connection terminal.
While a single contact hole shared by all the connection
terminals may have been technically possible, no expert
was aware of any example or teaching where such a
contact hole was ever created, and neither party put any
such teaching into the record, if such a teaching exists.
The asserted claim 1 is the only issued claim in the
’958 patent and recites:
1. A method for producing an electro-optical de-
vice in which an electro-optical material is put be-
tween a pair of substrates opposed to each other,
at least a portion of opposing surfaces of the sub-
strates is insulative, a plurality of source wirings
and a plurality of gate wirings are formed crossing
each other on the surface of one of said pair of
substrates and a transparent pixel electrode and a
thin film transistor are formed at each of the
crossing points between the source wirings and
the gate wirings, wherein the method comprises:
a step G1 of forming a first metal film on the sur-
face of said one substrate,
a first photolithographic step G2 of patterning the
first metal film to form a gate electrode and a gate
wiring,
a step G3 of forming a first insulator film, a semi-
conductor film and an ohmic contact film on the
surface of said one substrate after the first photo-
lithographic step,
a second photolithographic step G4 of patterning
the semiconductor active film and the ohmic con-
tact film to form a semiconductor portion above
6 EIDOS DISPLAY, LLC v. AU OPTRONICS CORPORATION
the gate electrode in a state isolated from other
portions,
a step G5 of forming a second metal film on the
surface of said one substrate after the second pho-
tolithographic step,
a third photolithographic step G6 of patterning
the second metal film and the ohmic contact film
to form a source electrode, a drain electrode and a
channel portion,
a step G7 of forming a passivation film on the sur-
face of said one substrate after the third photo-
lithographic step, and
a fourth photolithographic step G8 of patterning
the passivation film to form a contact hole reach-
ing the gate wiring, a contact hole reaching the
drain electrode and a contact hole for source wir-
ing and gate wiring connection terminals,
a step G9 of forming a transparent conductive film
on the surface of said one substrate after the
fourth photolithographic step, and
a fifth photolithographic step G10 of patterning
the transparent conductive film to form a trans-
parent pixel electrode.
Id. at 58:5–47 (emphasis added to highlight the limitation
at issue on appeal).
During Markman proceedings in front of the magis-
trate judge, the primary claim construction dispute fo-
cused on the last portion of step G8, “a contact hole for
source wiring and gate wiring connection terminals.”
Eidos Display, 2013 WL 1559729, at *4. Eidos argued
that the disputed limitation requires separate and dis-
tinct contact holes for the source wiring connection termi-
nals and gate wiring connection terminals, consistent
with the standard industry practice and the specification,
EIDOS DISPLAY, LLC v. AU OPTRONICS CORPORATION 7
whereas Display Manufacturers argued that the plain
language of the disputed limitation requires a shared
contact hole for all connection terminals. Id. The magis-
trate judge reviewed the claim language, specification,
and the record in the then-ongoing ex parte reexamina-
tion, and determined that the dispute “[wa]s not ripe for
claim construction, as the dispute [as] presented cen-
ter[ed] around theories of invalidity pursuant to
35 U.S.C. § 112.” Id. at *6.
Defendants Chi Mei Innolux Corporation and Chi Mei
Optoelectronics USA Inc. (collectively, “Innolux”) then
filed a motion for summary judgment alleging nonin-
fringement, in which they argued for a third construction
of the disputed limitation, that two different structures be
formed: 1) a contact hole for source wiring and 2) the gate
wiring connection terminals, with no corresponding
contact hole or holes. The district court declined to adopt
Innolux’s proposed construction, and instead ordered
briefing as to whether the disputed limitation was defi-
nite. Display Manufacturers subsequently filed a motion
for summary judgment asserting indefiniteness. Eidos, in
its response to Display Manufacturers’ motion, proposed a
fourth construction of the disputed limitation: that the
structure for the limitation could be formed as either a
single contact hole as Display Manufactures proposed, or
as separate contact holes as Eidos originally proposed.
Joint Appendix (J.A.) 33.
The magistrate judge rejected all four proposed con-
structions of the disputed limitation. Regarding the first,
second, and fourth proposed constructions, the magistrate
judge determined that the specification failed to support
that “a contact hole for source wiring and gate wiring
connection terminals” could be formed as either separate
contact holes or a shared contact hole. The magistrate
judge dismissed Innolux’s proposed construction because
it required connection terminals to be formed from an
insulating material, whereas the specification requires
8 EIDOS DISPLAY, LLC v. AU OPTRONICS CORPORATION
the terminals to be made of a conductive material. The
magistrate judge recommended that the district court
grant the motion for summary judgment on indefiniteness
because “the Court is unable to arrive at a construction
that would allow a person of ordinary skill in the art to
determine what is claimed when the claim is read in light
of the specification.” J.A. 34 (citation omitted). The
district court issued an order adopting the magistrate
judge’s recommendation and granting the motion for
summary judgment of indefiniteness. J.A. 22.
Eidos appealed and we have jurisdiction pursuant to
28 U.S.C. § 1295(a)(1).
DISCUSSION
A patent must “conclude with one or more claims par-
ticularly pointing out and distinctly claiming the subject
matter which the applicant regards as [the] invention.”
35 U.S.C. § 112, ¶ 2 (2006). 2 Keeping in mind that “pa-
tents are not addressed to lawyers, or even to the public
generally, but rather to those skilled in the relevant art,”
the patent claims “must be precise enough to afford clear
notice of what is claimed, thereby appris[ing] the public of
what is still open to them.” Nautilus, Inc. v. Biosig In-
struments, Inc., 134 S. Ct. 2120, 2129 (2014) (internal
quotation marks omitted). A claim fails to satisfy this
statutory requirement and is thus invalid for indefinite-
ness if its language, when read in light of the specification
and prosecution history, “fail[s] to inform, with reasonable
2 Paragraph 2 of 35 U.S.C. § 112 was replaced with
newly designated § 112(b) when § 4(c) of the America
Invents Act (AIA), Pub. L. No. 112-29, took effect on
September 16, 2012. Because the applications resulting
in the patents at issue in this case were filed before that
date, we will refer to the pre-AIA version of § 112.
EIDOS DISPLAY, LLC v. AU OPTRONICS CORPORATION 9
certainty, those skilled in the art [at the time the patent
was filed] about the scope of the invention.” Id. at 2124. 3
We review the grant of summary judgment of indefi-
niteness de novo, applying the same standard used by the
district court. Ethicon Endo-Surgery, Inc. v. U.S. Surgi-
cal Corp., 149 F.3d 1309, 1315 (Fed. Cir. 1998). We
review the district court’s ultimate indefiniteness deter-
mination de novo. Interval Licensing LLC v. AOL, Inc.,
766 F.3d 1364, 1370 (Fed. Cir. 2014). The indefiniteness
inquiry here is intertwined with claim construction, see
Atmel Corp. v. Info. Storage Devices, Inc., 198 F.3d 1374,
1379 (Fed. Cir. 1999), which, because the meaning of the
claim at issue is clear in view of the intrinsic record and
undisputed facts, we also review de novo, see Teva Pharm.
USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 840–42 (2015).
To the extent the district court considered extrinsic evi-
dence in its claim construction order or summary judg-
ment order, that evidence is ultimately immaterial to the
outcome because the intrinsic record is clear. See Phillips
v. AWH Corp., 415 F.3d 1303, 1318 (Fed. Cir. 2005) (en
banc) (“[A] court should discount any expert testimony
that is clearly at odds with the claim construction man-
dated by the claims themselves, the written description,
and the prosecution history, in other words, with the
written record of the patent.” (internal quotation marks
omitted)). We reverse the district court’s finding of indef-
initeness because Eidos’ proposed construction for the
3 The district court granted summary judgment on
January 22, 2014, without the benefit of the Supreme
Court’s guidance in Nautilus. The magistrate judge
recommended that summary judgment of indefiniteness
be granted because he determined, under the pre-
Nautilus standard, that the asserted claim was “insolubly
ambiguous.” J.A. 34 (citing Honeywell Int’l v. Int’l Trade
Comm’n, 341 F.3d 1332, 1338–39 (Fed. Cir. 2003)).
10 EIDOS DISPLAY, LLC v. AU OPTRONICS CORPORATION
disputed limitation reflects how a person of ordinary skill
in the art at the time of the invention would have under-
stood the limitation after reading the intrinsic record. See
id. at 1312–18.
The limitation-at-issue, “a contact hole for source wir-
ing and gate wiring connection terminals,” by itself, might
suggest to someone unknowledgeable in the field of LCD
manufacturing that one contact hole is formed for all the
source wiring connection terminals and gate wiring
connection terminals, as the Display Manufacturers
argue. But the limitation, by itself, might also indicate
that many contact holes are formed for the connection
terminals. To analogize, a person familiar with cars,
when reading the sentence “I am going to create an elec-
tric car for the United States and United Kingdom,”
would likely expect different electric cars to be created,
one set with the steering wheel located on the left for
driving in the United States, and another set with the
steering wheel on the right for driving in the United
Kingdom. The intrinsic record here makes sufficiently
clear that a person of ordinary skill in the art—someone
with knowledge of LCD manufacturing—after considering
the limitation “in the context of the particular claim in
which the disputed term appears, [and] in the context of
the entire patent, including the specification,” Phillips,
415 F.3d at 1313, would understand the limitation-at-
issue to call for separate, different contact holes for the
source wiring connection terminals and gate wiring
connection terminals, rather than one shared contact
hole. 4
4 During reexamination of the ’958 patent, the ex-
aminer concluded that the limitation-at-issue “implicitly
requires separate contact holes for the source wiring and
gate wiring connection terminals.” J.A. 6079–80.
EIDOS DISPLAY, LLC v. AU OPTRONICS CORPORATION 11
As an initial matter, no party disputes that the state
of the art for manufacturing LCD panels always had been
to form contact holes for source wiring connection termi-
nals that are separate from contact holes for gate wiring
connection terminals. Consistent with that well-
established practice, the specification teaches that each
connection terminal for the electro-optical device would
receive its own contact hole, for two reasons.
First, nothing in the 172 figures or 58 columns of the
’958 patent describes how a person of ordinary skill in the
art would deviate from the known industry practice to
create a novel shared contact hole for all the connection
terminals. If the patentee wanted to deviate from the
standard practice and claim a novel shared contact hole,
some teaching of how to depart from the common practice
would not only be expected, but is required. See 35 U.S.C.
§ 112 (“The specification shall contain a written descrip-
tion of the invention, and the manner and process of
making and using it, in such full, clear, concise, and exact
terms as to enable any person skilled in the art . . . to
make and use the same . . . .”).
Second, the only description corresponding to “a con-
tact hole for source wiring and gate wiring connection
terminals” in the specification teaches that separate
contact holes are formed for the different connection
terminals. This teaching is evident when considering the
history of the ’958 patent, in particular the patent appli-
cation to which the ’958 patent claims priority, applica-
tion number 08/459,925. See Masco Corp. v. United
States, 303 F.3d 1316, 1324 (Fed. Cir. 2002) (“The prose-
cution history of a parent application may be considered
in construing claim terms.” (citing Elkay Mfg. Co. v. Ebco
Mfg. Co., 192 F.3d 973, 980 (Fed. Cir. 1999) (“When
multiple patents derive from the same initial application,
the prosecution history regarding a claim limitation in
any patent that has issued applies with equal force to
subsequently issued patents that contain the same claim
12 EIDOS DISPLAY, LLC v. AU OPTRONICS CORPORATION
limitation.”))). The ’925 application originally contained
seventeen independent claims, J.A. 9419–49, which were
subject to a seventeen-species restriction, J.A. 9516. The
specification in the ’925 application, which is substantial-
ly the same as the specification in the ’958 patent, con-
tains seventeen embodiments that match with and
describe the seventeen original independent claims. The
limitation-at-issue, “a contact hole for source wiring and
gate wiring connection terminals,” appeared in five of the
original claims; claim 3 (embodiment B), claim 4 (embod-
iment C), claim 5 (embodiment D), claim 7 (embodiment
F), and claim 8 (embodiment G). Original claim 8 ulti-
mately became claim 1 of the patent before us—the ’958
patent. Although the portion of the specification describ-
ing embodiment G does not explain in detail this particu-
lar photolithographic step, the portion describing
embodiment D, which claims this step using identical
claim language, explicitly describes this photolithographic
step as forming “a contact hole [] for a source wiring
connection terminal and a contact hole for a gate wiring
connection terminal.” ’958 patent, 31:42–53. Both parties
agree that, as recited in original claim 5 (which corre-
sponds to embodiment D), “a contact hole for source
wiring and gate wiring connection terminals” requires
separate contact holes for each connection terminal,
consistent with Eidos’ proposed construction. Id. at
31:50–53. After reviewing the specification as well as the
claims originally filed with the Patent Office, we see no
reason to ascribe a different meaning to the same limita-
tion in original claim 8, i.e., claim 1 of the ’958 patent.
See Phillips, 415 F.3d at 1314 (“Because claim terms are
normally used consistently throughout the patent, the
usage of a term in one claim can often illuminate the
meaning of the same term in other claims.”).
Even without considering the priority application, the
specification makes clear that the limitation-at-issue
requires formation of separate contact holes. Again, with
EIDOS DISPLAY, LLC v. AU OPTRONICS CORPORATION 13
respect to embodiment D, the specification, at one point,
describes “a fourth photolithographic step D8 of pattern-
ing the passivation film to remove a portion of the pas-
sivation film, . . . forming a contact hole for source wiring
and gate wiring connection terminals.” ’958 patent, 7:11–
22 (emphasis added). And, as already stated, the specifi-
cation later clarifies that “photolithographic step D8”
entails forming “a contact hole [] for a source wiring
connection terminal and a contact hole for a gate wiring
connection terminal.” Id. at 31:42–53. The specification
thus equates the limitation-at-issue with forming separate
contact holes for the source wiring connection terminal
and the gate wiring connection terminal. Nothing in the
specification suggests why the identical phrase recited in
the claimed “fourth photolithographic step G8” should be
read differently from the described “fourth photolitho-
graphic step D8.” Instead, a person of ordinary skill in
the art would understand that the phrase, “a contact hole
for source wiring and gate wiring connection terminals,”
when used repeatedly throughout the patent, would be
given a consistent meaning. See Energy Transp. Grp.,
Inc. v. William Demant Holding A/S, 697 F.3d 1342,
1349–50 (Fed. Cir. 2012) (using the description of a word
in the specification for a different structure to inform the
meaning of the same word in the claim because “claim
terms are normally used consistently throughout the
patent” (quoting Phillips, 415 F.3d at 1314)).
The limitation-at-issue also appears in original claims
3, 4, and 7 of the ’925 application, J.A. 9421–25, 9429–30,
and in the corresponding embodiments B, C, and F of the
specification, ’958 patent, 5:38–6:8, 6:9–49, 7:64–8:32.
Display Manufacturers argue that the lack of description
for the limitation-at-issue in embodiments B, C, F, and G,
as described in the specification, is evidence that the
structure in those embodiments is different than in em-
bodiment D. We disagree. As set forth above, the rela-
tionship between the specification description for
14 EIDOS DISPLAY, LLC v. AU OPTRONICS CORPORATION
embodiment D and original claim 5 establishes the proper
understanding for the same claim limitation recited in the
other original claims of the ’925 application, i.e., claim 3
(embodiment B), claim 4 (embodiment C), claim 7 (embod-
iment F), and claim 8 (embodiment G).
The district court dismissed the teachings of the D
embodiment because structures formed in Step D8, as
recited in original claim 5 of the ’925 application and in
the specification, do not precisely mirror the structures
formed in the claimed Step G8. J.A. 29. The magistrate
judge noted that, in addition to the “contact hole for
source wiring and gate wiring connection terminals,” Step
G8 forms a contact hole reaching the gate wiring and a
contact hole reaching the drain electrode, whereas, in the
D embodiment, the contact hole reaching the gate wiring
is formed during Step D4, and a contact hole reaching the
drain electrode is not mentioned. J.A. 29–30. Relatedly,
Display Manufacturers argue that the different embodi-
ments have a different number of steps and have a differ-
ent sequence in which the patterns are etched, which they
argue results in “a fundamentally different approach to
manufacturing a [device].” Appellees’ Br. at 8–9. Differ-
ent embodiments, however, are expected to have differ-
ences, and neither the magistrate judge nor Display
Manufacturers explain how the noted differences in the
structures of the embodiments impact the structure of the
limitation-at-issue or impact how a person of ordinary
skill in the art would have understood the limitation.
Instead, the embodiments all similarly describe manufac-
turing processes for an electro-optical device using a
reduced number of photolithographic steps over the prior
art, and the structure for the limitation-at-issue is formed
in the same context in each embodiment—in a “photolith-
ographic step [] of patterning the passivation film.” ’958
patent, 6:4–5, 6:43–44, 7:11–12, 8:23–24, 8:57–58. This
similar context of the limitation-at-issue, in similar
embodiments, supports the conclusion that a person of
EIDOS DISPLAY, LLC v. AU OPTRONICS CORPORATION 15
ordinary skill in the art would adopt the same under-
standing for the same limitation recited in claim 1 of the
’958 patent.
Finally, Display Manufacturers argue that permitting
separate contact holes to be covered by the limitation “a
contact hole for source wiring and gate wiring connection
terminals” would require rewriting the limitation, which
is impermissible except in certain situations. Appellees’
Br. at 29 (citing Source Vagabond Sys., Ltd. v. Hydrapak,
Inc., 753 F.3d 1291, 1301 (Fed. Cir. 2014)). Determining
how a person of ordinary skill in the art would under-
stand the limitation, however, is different from rewriting
the limitation. Here, because a person of ordinary skill in
the art would understand that the limitation “a contact
hole for source wiring and gate wiring connection termi-
nals” means separate contact holes for source wiring
connection terminals and gate wiring connection termi-
nals, adopting such a construction is not rewriting the
claim limitation.
***
The ’958 patent teaches a person of ordinary skill in
the art that “a contact hole for source wiring and gate
wiring connection terminals” is formed by etching sepa-
rate contact holes for the source wiring connection termi-
nals and for the gate wiring connection terminals, as
described in the specification and prosecution history.
Therefore, the limitation “a contact hole for source wiring
and gate wiring connection terminals” in claim 1 of the
’958 patent is not indefinite under 35 U.S.C. § 112, ¶ 2.
We reverse the judgment of indefiniteness and remand to
the district court for further proceedings consistent with
this opinion.
REVERSED AND REMANDED
COSTS
Each party shall bear its own costs.