Cardionet, LLC v. Infobionic, Inc.

• Court: Court of Appeals for the Federal Circuit
• Decided: October 29, 2021
• Docket: 20-2123
• Status: Unpublished

Opinion

Case: 20-2123 Document: 55 Page: 1 Filed: 10/29/2021

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

CARDIONET, LLC, BRAEMAR MANUFACTURING, LLC, Plaintiffs-Appellants

v.

INFOBIONIC, INC., Defendant-Cross-Appellant ______________________

2020-2123, 2020-2150 ______________________

Appeals from the United States District Court for the District of Massachusetts in No. 1:15-cv-11803-IT, Judge Indira Talwani. ______________________

Decided: October 29, 2021 ______________________

FRANK A. DECOSTA, III, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, ar- gued for plaintiffs-appellants. Also represented by ALIZA GEORGE CARRANO.

CHARLES SANDERS, Latham & Watkins LLP, Boston, MA, argued for defendant-cross-appellant. Also repre- sented by CHRISTOPHER HENRY; GABRIEL K. BELL, DIANE GHRIST, MAXIMILIAN A. GRANT, Washington, DC. Case: 20-2123 Document: 55 Page: 2 Filed: 10/29/2021

______________________

Before LOURIE, DYK, and O’MALLEY, Circuit Judges. LOURIE, Circuit Judge. CardioNet, LLC and Braemar Manufacturing, LLC (collectively, “CardioNet”) appeal from the decision of the United States District Court for the District of Massachu- setts granting summary judgment that InfoBionic did not infringe claims 1–2, 8, 11–12, and 20–21 of U.S. Patent 7,099,715 (“the ’715 patent”). CardioNet, LLC v. InfoBi- onic, Inc., No. 1:15-CV-11803-IT, 2020 WL 4559934 (D. Mass. June 22, 2020) (“Summary Judgment Decision”). In- foBionic cross-appeals from the district court’s decision that the asserted claims of CardioNet’s ’715 patent are not ineligible for patent under 35 U.S.C. § 101. CardioNet, LLC v. InfoBionic, Inc., No. 1:15-CV-11803-IT, 2017 WL 1788650 (D. Mass. May 4, 2017) (“Validity Decision”). Because we conclude that the ’715 patent claims sub- ject matter ineligible for patent, we vacate the district court’s decision granting summary judgment of nonin- fringement. We remand for the entry of judgment of no liability on the ground that the district court should have granted InfoBionic’s motion for judgment on the pleadings as to unpatentability. BACKGROUND CardioNet owns the ’715 patent, which is directed to an improved heart monitoring device. Heart monitoring de- vices measure the heart’s activity using an electrocardio- gram (“ECG”). ’715 patent at col. 1 ll. 17–25. The ECG plots the heart’s electrical signals as different waveforms on a graph, including the P wave, the R wave, and the T wave. Id. at col. 1 ll. 21–23, col. 3 ll. 61–65. The P wave corresponds to atrial depolarization. The R wave corre- sponds to ventricular depolarization. The T wave corre- sponds to ventricular repolarization and relaxation. A Case: 20-2123 Document: 55 Page: 3 Filed: 10/29/2021

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doctor can measure a person’s heart rate by calculating the distance between consecutive R waves. Id. at col. 3 ll. 34– 39. According to the ’715 patent, existing heart monitoring devices could be error prone. For example, the specification explains that in a normal heartbeat, the R wave is taller than the T wave (shown in figure 3 below). Id. at col. 3 ll. 61–65. However, some patients have “abnormal[ly]” tall T waves (shown in figure 4 below). Id. at col. 3 ll. 65–67. As a result, the ECG may mistakenly classify them as R waves. Id. at col. 3 ll. 52–67. Because of that misclassifi- cation, the ECG reports an inaccurately high heart rate. Id. at col. 3 ll. 55–60.

’715 patent at figs. 3–4. The ’715 patent invention purports to address such er- rors by disclosing a heart monitoring device with an alleg- edly inventive feature: a T wave filter. The T wave filter Case: 20-2123 Document: 55 Page: 4 Filed: 10/29/2021

“reduce[s] the amplitude of T waves, while preserving or slightly increasing the amplitude of R waves,” thereby im- proving the ECG’s classification accuracy. Id. at col. 3 ll. 52–60, col. 4 ll. 5–8. Of relevance to this appeal, the T wave filter may not always be “activated.” Rather, the heart monitoring device first sends the ECG data to a monitoring station. Id. at col. 4 ll. 51–60. At the monitoring station, a human operator can decide to activate the filter upon ob- serving abnormally tall T waves. Id. at col. 4 l. 61–col. 5 l. 1. To activate the filter, the operator sends a message to the monitoring apparatus. Id. The ’715 patent consists of three independent claims that are relevant to this appeal, claims 1, 11, and 20. In- dependent claim 1 recites a machine-implemented method of using the T wave filter. It reads as follows: 1. A machine-implemented method comprising: identifying heart beats in a sensed cardiac signal; activating a frequency domain T wave filter, used in said identifying heart beats, in response to a message from a monitoring station generated at least in part based upon discovery of a predeter- mined characteristic in the sensed cardiac signal; and outputting information corresponding to the iden- tified heart beats to a communications channel of a distributed cardiac activity monitoring system. Id. at col. 6 ll. 27–36; J.A. 52 (certificate of correction) (em- phases added). Independent claim 11 recites a system claim: 11. A distributed cardiac activity monitoring sys- tem comprising: a monitoring apparatus including a communica- tions interface, a real-time QRS detector, a Case: 20-2123 Document: 55 Page: 5 Filed: 10/29/2021

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frequency domain T wave filter, and a selector that activates the T wave filter with respect to the real- time QRS detector in response to a message, wherein the activated frequency domain T wave fil- ter preprocesses a cardiac signal provided to the realtime QRS detector; and a monitoring station that communicatively couples with the monitoring apparatus via the communica- tions interface and transmits the message to the monitoring apparatus to activate the frequency do- main T wave filter based at least in part upon a predetermined criteria. Id. at col. 7 ll. 4–18; J.A. 52 (certificate of correction) (em- phases added). Claim 20 is an apparatus claim. The district court fo- cused on claim 20, and we shall as well. It reads as follows: 20. A cardiac monitoring apparatus comprising: a communications interface; a real-time heart beat detector; a frequency domain T wave filter; and a selector that activates the frequency domain T wave filter with respect to the real-time heart beat detector in response to a message, wherein the ac- tivated frequency domain T wave filter prepro- cesses a cardiac signal provided to the real-time heart beat detector. Id. at col. 7 ll. 45–53; J.A. 52 (certificate of correction) (em- phases added). In 2016, a competitor of CardioNet, InfoBionic, mar- keted its own cardiac monitoring device, the “MoMe® Kar- dia system.” J.A. 4414–15. CardioNet alleged that the device had a T wave filter. Subsequently, it sued InfoBi- onic, asserting that the MoMe® Kardia system (second Case: 20-2123 Document: 55 Page: 6 Filed: 10/29/2021

generation) infringes claims 1–2, 8, 11–12, and 20–21 of the ’715 patent. J.A. 948, 4436–37. In response, InfoBionic moved for judgment on the pleadings that the asserted claims of the ’715 patent are ineligible for patent under § 101. J.A. 773. The district court denied InfoBionic’s motion, holding that the asserted claims of the ’715 patent are not ineligible under § 101. The court analyzed the claims under the Su- preme Court’s two-step Alice framework for determining patent eligibility. At step one, it determined that claim 20 is directed to the abstract idea of “filtering raw cardiogram data to optimize its output.” Validity Decision, 2017 WL 1788650, at *10. However, at step two, it determined that claim 20 recites an inventive concept sufficient to trans- form the abstract idea into patent-eligible subject matter. The court reasoned that, because claim 20 is “tied to a ma- chine,” it satisfies “the machine-or-transformation test” and thus “fall[s] within the ambit of Section 101.” Id. at *11. 1 As a result, it denied InfoBionic’s motion for judg- ment on the pleadings. Id. Subsequently, CardioNet proceeded to litigate its in- fringement claim. InfoBionic moved for summary judg- ment of noninfringement. The district court granted that motion. Summary Judgment Decision, 2020 WL 4559934, at *8–10. The court first found that CardioNet failed to supplement its infringement contentions in a timely man- ner, effectively “hid[ing] the ball” from InfoBionic. Id. at *5–10; J.A. 8962–63. Consequently, it precluded Cardio- Net from relying on several of its infringement theories. Summary Judgment Decision, 2020 WL 4559934, at *8–10. After excluding that evidence, the court concluded that

1 The district court’s reference to claim 9 in the “In- ventive Concept” section of its opinion should have referred to claim 20. Validity Decision, 2017 WL 1788650, at *10– 11. Case: 20-2123 Document: 55 Page: 7 Filed: 10/29/2021

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there was no genuine dispute regarding noninfringement and InfoBionic was entitled to judgment as a matter of law. Id. CardioNet appealed the district court’s decision grant- ing summary judgment. InfoBionic cross-appealed the court’s denial of its motion for judgment on the pleadings. We have jurisdiction under 28 U.S.C. § 1295(a)(1). DISCUSSION On appeal, CardioNet asserts that the district court erred in granting summary judgment of noninfringement in favor of InfoBionic. In turn, InfoBionic argues in a cross- appeal that the court erred in holding that the asserted claims of the ’715 patent are not ineligible for patent under § 101. We turn first to InfoBionic’s argument regarding § 101. I. Section 101 We review a district court’s denial of judgment on the pleadings under Federal Rule of Civil Procedure 12(c) ac- cording to the law of the regional circuit. Allergan, Inc. v. Athena Cosmetics, Inc., 640 F.3d 1377, 1380 (Fed. Cir. 2011) (citing Imation Corp. v. Koninklijke Philips Elecs. N.V., 586 F.3d 980, 985 (Fed. Cir. 2009)). The First Circuit reviews an order denying a judgment on the pleadings de novo, “accept[ing] the truth of all well-pleaded facts and draw[ing] all reasonable inferences therefrom in the pleader’s favor.” Shay v. Walters, 702 F.3d 76, 79 (1st Cir. 2012) (quoting Grajales v. P.R. Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012)). Patent eligibility under § 101 is an issue of law that may contain underlying issues of fact. See Berkheimer v. HP Inc., 881 F.3d 1360, 1365 (Fed. Cir. 2018). We review the district court’s ultimate conclusion on patent eligibility de novo. Id. To determine whether a patent claims eligible Case: 20-2123 Document: 55 Page: 8 Filed: 10/29/2021

subject matter, we follow the Supreme Court’s familiar two-step framework. See Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217 (2014); Mayo Collaborative Servs. v. Prome- theus Labs., Inc., 566 U.S. 66, 70–73 (2012). First, we de- termine whether the claims are directed to a law of nature, natural phenomenon, or abstract idea. See Alice, 573 U.S. at 217. If so, we proceed to the second step and determine whether the claims nonetheless include an “inventive con- cept” sufficient to “‘transform the nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo, 566 U.S. at 72, 78). To recite an “inventive concept” at step two, a patent must do more than recite an abstract idea “while adding the words ‘apply it.’” Id. at 221 (quoting Mayo, 566 U.S. at 72). Moreover, “simply appending conventional steps, specified at a high level of generality, to laws of na- ture, natural phenomena, and abstract ideas cannot make those laws, phenomena, and ideas patentable.” Mayo, 566 U.S. at 82. Alice Step One At step one, InfoBionic argues that claim 20 is directed to the abstract idea of filtering data. It further asserts that the T wave filter performs a simple mathematical func- tion—reducing the T wave’s amplitude—which cannot con- fer eligibility. CardioNet responds that claim 20 is not directed to an abstract idea, but, rather, to an improvement in cardiac monitoring technology. We agree with InfoBionic. As the claim language and the specification make clear, the invention is directed to the abstract idea of filtering patient heartbeat signals to increase accuracy. ’715 patent at col. 3 ll. 58–60, col. 4 ll. 35–36. Specifically, claim 20 focuses on selectively “acti- vat[ing]” the “T wave filter” to “preprocess[] a cardiac sig- nal.” Id. at col. 7 ll. 45–53. Similarly, the specification explains that the very purpose of the invention centers on using the T wave filter to filter data. See id. at Abstract, col. 3 ll. 52–col. 4 ll. 67. But, at bottom, filtering the data Case: 20-2123 Document: 55 Page: 9 Filed: 10/29/2021

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requires only basic mathematical calculations, such as “de- compos[ing] a T wave into its constituent frequencies and multipl[ying] them by a filter frequency response.” Appel- lant’s Reply and Resp. Br. 49 (citing ’715 patent at col. 4 ll. 19–36). And such calculations, even if “[g]roundbreaking,” are still directed to an abstract idea. SAP Am., Inc. v. In- vestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018) (citing Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013)). CardioNet makes several additional arguments in sup- port of its assertion that claim 20 is not directed to an ab- stract idea. Those arguments are all unpersuasive. First, CardioNet contends that claim 20 is necessarily tied to a “specific improvement” in cardiac monitoring tech- nology because, without the claimed T wave filter, the ECG may mistakenly classify the T waves as R waves. Appel- lant’s Reply and Resp. Br. 42–43. We are unpersuaded by that argument. To qualify as “a patent-eligible improve- ment,” the invention must be directed to a specific improve- ment in the computer’s functionality, not simply to use of the computer “as a tool” to implement an abstract idea. Customedia Techs., LLC v. Dish Network Corp., 951 F.3d 1359, 1363–1364 (Fed. Cir. 2020). Here, the invention falls into the latter category. It focuses on using a general-pur- pose computer to carry out the abstract idea of filtering data. See ’715 patent at col. 3 ll. 52–60, col. 4 ll. 19–36, col. 5, ll. 34–38. In addition, claim 20 supplies no specific way to collect and process the data or to implement the T wave filter. Nor does it specify how to determine when to activate the T wave filter. Rather, it leaves that decision to the operator. See id. at col. 4 ll. 61–65. Indeed, even the district court recognized that the claim language was problematic for CardioNet’s eligibility argument. Specifically, when ana- lyzing the parties’ dispute regarding infringement, the court briefly revisited its earlier conclusion that the Case: 20-2123 Document: 55 Page: 10 Filed: 10/29/2021

asserted claims are not ineligible under § 101. Summary Judgment Decision, 2020 WL 4559934, at *9–10. It ob- served that, when making its infringement argument, Car- dioNet had emphasized the operator’s role in activating the T wave filter, but that, problematically, when making its eligibility argument (at an earlier stage in the proceed- ings), it had downplayed that aspect of the claim. Id. The court strongly hinted that, had it been aware of the signif- icance of the operator’s mental process to the claimed in- vention at the pleadings stage, it would have considered holding the claims ineligible under § 101. J.A. 8963–72, 8985 (oral argument proceedings). The district court’s sub- sequent analysis regarding § 101 supports our ultimate conclusion here. Second, CardioNet emphasizes that the T wave filter can calculate mathematical functions that a human cannot mentally perform. As support for its argument, it points to the district court’s finding that the T wave filter “dimin- ish[es] the intensity of [the] T wave while preserving or am- plifying the R wave,” which a human cannot “manually” calculate. Validity Decision, 2017 WL 1788650, at *10 (em- phases in original). CardioNet’s argument misses the mark. “[T]he inability for the human mind to perform each claim step does not alone confer patentability.” FairWarn- ing IP, LLC v. Iatric Sys., 839 F.3d 1089, 1098 (Fed. Cir. 2016). Consequently, even assuming that only a computer can perform the calculations, CardioNet’s argument is un- persuasive; the T wave filter’s mathematical function alone does not make the claims any less abstract. Third, CardioNet asserts that claim 20 is similar to the claims that we held to be nonabstract in CardioNet, LLC v. InfoBionic, Inc., 955 F.3d 1358 (Fed. Cir. 2020). We disa- gree. That case (involving the same parties here) con- cerned a patent with claims to a system that detects different types of cardiac arrythmias by measuring heart- beat variability. Id. at 1362. Importantly, we observed that there was no intrinsic evidence that the claimed Case: 20-2123 Document: 55 Page: 11 Filed: 10/29/2021

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technique had ever been used. Id. at 1370–71. Here, how- ever, as explained below, InfoBionic points to evidence that the use of a filter to perform mathematical functions was not a new activity. In fact, during oral argument, Cardio- Net admitted that “T wave filters, as a general proposition, existed” prior to the patent (although later, it unpersua- sively argued that the filter had not been used in the same specific “way” recited in the ’715 patent). See Oral Argu- ment (20–2123) at 31:20–33:00. Additionally, CardioNet’s argument is particularly un- persuasive given that there is another case (also involving the same parties) with claims much more similar to the ones at issue here: CardioNet, LLC v. InfoBionic, Inc., 816 F. App’x 471 (Fed. Cir. 2020). In that case, we held that claims to a system for “presenting information relating to heart data” are ineligible for patent under § 101. Id. at 472. The relevant claims recite a monitoring system and moni- toring station that: (1) identify heartbeat anomalies, (2) cross-check the results with a human operator, and (3) dis- play the data. Id. Ultimately, we held that the claims are directed to the abstract concept of “collecting, analyzing, and displaying data” in order to perform the “longstanding practice” of “spot-checking systems for quality control.” Id. at 475–77. Our holding in that case is directly applicable here. Specifically, claim 20 is directed to the abstract con- cept of collecting, analyzing, and displaying data while us- ing a T wave filter. Having concluded that claim 20 is directed to an ab- stract idea, as did the district court, we next consider whether it recites an inventive concept at step two. Alice Step Two At step two, InfoBionic argues that the district court erred in holding that claim 20 recites an inventive concept sufficient to transform the nature of the claim into patent- eligible subject matter. According to InfoBionic, claim 20 merely employs conventional computer components to Case: 20-2123 Document: 55 Page: 12 Filed: 10/29/2021

carry out an abstract idea. CardioNet responds that the T wave filter was “an innovative” and nonconventional solu- tion to a key problem: measuring the heart rate of patients with tall T waves. Appellant’s Reply and Resp. Br. 46–47. Moreover, according to CardioNet, the district court’s con- clusion that claim 20 satisfies the “machine-or-transfor- mation test” is “unassailable.” Id. It further asserts that claim 20 is akin to the claims we held to be nonabstract in CardioNet, LLC v. InfoBionic, Inc., 955 F.3d 1358 (Fed. Cir. 2020). We agree with InfoBionic that the district court erred in holding that claim 20 recites an inventive concept. First, we are unpersuaded by CardioNet’s argument that the invention consists of “more” than conventional components performing basic functions. As InfoBionic points out, although CardioNet emphasizes that the T wave filter was “innovative,” the ’715 patent cites refer- ences that contradict that argument. For example, one cited patent describes a “filter” that “accentuates the R- wave and attenuates the effect of the T-wave because the T-wave is a low frequency, far field signal.” See ’715 patent at references cited; U.S. Patent 6,834,204 at col. 5 ll. 23– 32, col. 6 ll. 13–15. And regardless, even accepting Cardi- oNet’s argument that the T wave filter’s function was inno- vative, “[a] claim for a new abstract idea,” here, a mathematical calculation, “is still an abstract idea.” SAP, 898 F.3d at 1163 (quoting Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016)). Aside from the T wave filter, the specification explains that the other claimed components are conventional. For exam- ple, it discloses that the “monitoring apparatus,” which col- lects the data, “can be implemented using” a “commercially available” device. ’715 patent at col. 2 ll. 1–36. It then states that the collected data is analyzed using “suitable processors,” including “general . . . purpose microproces- sors.” Id. at col. 5 ll. 58–59. Additionally, according to the specification, “[t]he systems and techniques . . . can be Case: 20-2123 Document: 55 Page: 13 Filed: 10/29/2021

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implemented” using “computer hardware, firmware, [or] software.” Id. at col. 5 ll. 34–46. Second, we disagree with the district court’s determi- nation that claim 20 recites an inventive concept because it satisfies the machine-or-transformation test. “[S]atisfy- ing the machine-or-transformation test, by itself, is not suf- ficient to render a claim patent-eligible” because not all “transformations or machine implementations infuse an otherwise ineligible claim with an ‘inventive concept.’” So- lutran, Inc. v. Elavon, Inc., 931 F.3d 1161, 1169 (Fed. Cir. 2019) (citing DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014)). Indeed, the Supreme Court itself held in Bilski that the machine-or-transfor- mation test is a “useful and important clue” for determin- ing patent eligibility, but not dispositive. Bilski v. Kappos, 561 U.S. 593, 604 (2010). Here, although claim 20 is tech- nically tied to a machine (a cardiac apparatus) its ultimate focus is to “preprocess[] a cardiac signal” using a “T wave filter,” which, as explained above, is an abstract idea. ’715 patent at col. 7 ll. 45–54; J.A. 52 (certificate of correction). To the extent that formulating a claim in the form of an apparatus insulates it from an ineligibility attack if it only recites conventional components for performing an ab- stract idea, the Supreme Court has closed that door, at least for now. Third, we are unpersuaded by CardioNet’s step two ar- guments relying on CardioNet, LLC v. InfoBionic, Inc., 955 F.3d 1358 (Fed. Cir. 2020). In that case, we did not reach step two because we held that the claims are not ineligible for patent under § 101 at step one. Id. at 1371. Addition- ally, the facts in CardioNet, LLC v. InfoBionic, Inc., 816 F. App’x 471 (Fed. Cir. 2020) are much more similar to those at issue here. There, we explained that the abstract con- cept of “collecting, analyzing, and displaying data” in order to perform the “longstanding practice” of “spot-checking systems for quality control” was implemented using “con- ventional technology,” including a monitoring system and Case: 20-2123 Document: 55 Page: 14 Filed: 10/29/2021

a monitoring station. Id. at 475–77. Likewise, here, claim 20 recites conventional components (a monitoring appa- ratus and monitoring station) performing the same type of conventional functions: collecting data, analyzing it with the T wave filter’s mathematical calculations, and display- ing it on the monitoring station. ’715 patent at col. 2 ll. 1– 48; col. 4 ll. 19–36. Finally, we conclude that the remaining claims are di- rected to substantially similar subject matter as claim 20 and are therefore ineligible under § 101. For example, the two other asserted independent claims are materially the same as claim 20 but recite transmitting the command to activate the T wave filter based on predetermined charac- teristics (claim 1) or predetermined criteria (claim 11) of the patient’s heartbeat. ’715 patent at col. 6 ll. 27–36, col. 7 ll. 4–18. CardioNet does not explain how a doctor’s deci- sion to activate the T wave filter based upon certain fea- tures (i.e., a tall T wave) is anything more than an abstract idea. Similarly, dependent claim 2 recites identifying heartbeats based on R waves. Id. at col. 6 ll. 37–39. But the specification itself describes that concept as well known. Id. at col. 1 ll. 17–21. Dependent claims 8, 12, and 21 recite using “wireless communications.” Id. at col. 6 ll. 60–62; col. 7 ll. 19–20, 54–56. That limitation constitutes conventional activity that does not change the claims’ cen- tral focus on filtering. Accordingly, we conclude that the patent does not re- cite an inventive concept sufficient to transform the as- serted claims into patent-eligible subject matter. II Noninfringement CardioNet asserts that the district court erred in grant- ing summary judgment of noninfringement in favor of In- foBionic. However, because we conclude that the asserted claims of the ’715 patent are ineligible for patent under Case: 20-2123 Document: 55 Page: 15 Filed: 10/29/2021

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§ 101, we do not reach CardioNet’s argument. That issue is moot. See TypeRight Keyboard Corp. v. Microsoft Corp., 374 F.3d 1151, 1157 (Fed. Cir. 2004) (a “judgment of inva- lidity necessarily moots the issue of infringement” (citing Sandt Tech., Ltd. v. Resco Metal & Plastics Corp., 264 F.3d 1344, 1356 (Fed. Cir. 2001))). CONCLUSION We have considered CardioNet’s remaining arguments but find them unpersuasive. For the foregoing reasons, we vacate the district court’s decision granting summary judg- ment of noninfringement. We remand for the entry of judg- ment of no liability for InfoBionic on the ground that the district court should have granted the motion for judgment on the pleadings as to unpatentability. VACATED AND REMANDED COSTS Costs to cross-appellant.