Techtronic Industries Co. Ltd. v. Itc

United States Court of Appeals
for the Federal Circuit
______________________
TECHTRONIC INDUSTRIES CO. LTD.,
TECHTRONIC INDUSTRIES NORTH AMERICA,
INC., ONE WORLD TECHNOLOGIES, INC., OWT
INDUSTRIES, INC., ET TECHNOLOGY (WUXI) CO.
LTD.,
Appellants
v.
INTERNATIONAL TRADE COMMISSION,
Appellee
THE CHAMBERLAIN GROUP, INC.,
Intervenor
______________________
2018-2191
______________________
Appeal from the United States International Trade
Commission in Investigation No. 337-TA-1016.
______________________
Decided: December 12, 2019
______________________
JASON C. WHITE, Morgan, Lewis & Bockius LLP, Chi-
cago, IL, argued for appellants. Also represented by
WILLIAM R. PETERSON, Houston, TX; JULIE S.
GOLDEMBERG, Philadelphia, PA; SUSAN BAKER MANNING,
ERIC S. NAMROW, Washington, DC.
2 TECHTRONIC INDUS. CO. v. ITC
CARL PAUL BRETSCHER, Office of the General Counsel,
United States International Trade Commission, Washing-
ton, DC, argued for appellee. Also represented by DOMINIC
L. BIANCHI, WAYNE W. HERRINGTON, SIDNEY A.
ROSENZWEIG.
KATHERINE VIDAL, Winston & Strawn LLP, Menlo
Park, CA, argued for intervenor. Also represented by
MATTHEW R. MCCULLOUGH, MICHAEL RUECKHEIM; ROBERT
P. COURTNEY, Fish & Richardson P.C., Minneapolis, MN;
JOSEPH V. COLAIANNI, JR., Washington, DC; BENJAMIN
ELACQUA, Houston, TX.
______________________
Before LOURIE, DYK, and WALLACH, Circuit Judges.
LOURIE, Circuit Judge.
Techtronic Industries Co. Ltd. and Techtronic Indus-
tries North America Inc. (“TTI”), One World Technologies
Inc. and OWT Industries Inc. (“One World”), and ET Tech-
nology (Wuxi) Co. Ltd. (“ET”) (collectively, “Appellants”)
appeal from a final determination of the United States In-
ternational Trade Commission (the “Commission”), ren-
dered under Section 337 of the Tariff Act of 1930, codified
as amended at 19 U.S.C. § 1337 (2018). Following an in-
vestigation, the Commission determined that each of the
Appellants violated Section 337(a)(1)(B) through the im-
portation of garage door opener products that infringe
claims 1–4, 7–12, 15, and 16 of U.S. Patent 7,161,319 (the
“’319 patent”). Certain Access Control Systems and Com-
ponents Thereof, Inv. No. 337-TA-1016, USITC Pub. 4957,
2018 WL 8519593, at *1 (“Commission Determination”)
(Mar. 23, 2018); Notice of Final Determination in USITC
Inv. No. 337-TA-1016, 83 Fed. Reg. 13,517 (Mar. 29, 2018).
The Commission then entered limited exclusion orders
against each of the Appellants and cease and desist orders
against TTI and One World (collectively, the “Remedial
TECHTRONIC INDUS. CO. v. ITC 3
Orders”). See Commission Determination, 2018 WL
8519593, at *22–24; 83 Fed. Reg. 13,517.
We conclude that the Commission erred in its construc-
tion of “wall console,” a term in each of the ’319 patent
claims. Accordingly, we reverse its construction and its fi-
nal determination of infringement, and we vacate the Re-
medial Orders.
BACKGROUND
Intervenor Chamberlain Group Inc. (“Chamberlain”)
develops and markets garage door opener technology. It
owns the ’319 patent, which discloses improved “movable
barrier operators,” such as garage door openers. ’319 pa-
tent col. 1 ll. 14–20. The ’319 patent explains that passive
infrared detectors had been used in prior art garage door
openers “for the detection of a person in a particular vicin-
ity” and for automatically controlling functionality—such
as lights or the motion of the garage door—accordingly. Id.col. 1 ll. 21–50. Passive infrared detectors were often asso-
ciated with the head unit of the garage door opener, an ap-
proach the ’319 patent describes as “expensive,” “fragile,”
“deficient,” and even potentially unsafe. Id. col. 1 l. 51–col.
2 l. 3. The patent describes that there was a need for “a
passive infrared detector for controlling illumination from
a garage door operator which could be quickly and easily
retrofitted to existing garage door operators.” Id. col. 2 ll.
4–7.
The ’319 patent discloses as its invention “a passive in-
frared detector for a garage door operator,” ’319 patent col.
2 l. 13, where “the infrared detector . . . [is] contained in a
wall control unit,” along with an ambient light comparator
and a microcontroller. Id. col. 2 ll. 17–19. The comparator
provides a signal to the microcontroller indicating the sta-
tus of the lights in the garage, and the microcontroller
“communicates over the lines carrying the normal wall con-
trol switch signals with a microcontroller in a head unit of
the garage door” opener, id. col. 2 ll. 36–38, using
4 TECHTRONIC INDUS. CO. v. ITC
“conventional signaling channels,” id. col. 2 ll. 66–67. The
’319 patent proposes methods of programming the wall con-
trol unit’s microcontroller to control the head unit. The pa-
tent also discloses a preferred embodiment, which is
illustrated in the figures. The preferred embodiment con-
tains “a wall control unit embodying the present inven-
tion,” id. col. 4 l. 5, “includ[ing] a passive infrared sensor,”
id. col. 4 ll. 22–23, and a microcontroller programmed to
command a counterpart microcontroller in the head unit
using known digital signaling techniques, like pulse width
modulation. Claim 1, recited below, is representative:
1. An improved garage door opener comprising
a motor drive unit for opening and closing
a garage door, said motor drive unit having
a microcontroller
and a wall console, said wall console having
a microcontroller,
said microcontroller of said motor drive
unit being connected to the microcontroller
of the wall console by means of a digital
data bus.
’319 patent col. 7 ll. 34–39 (emphasis and formatting
added).
In July 2016, Chamberlain filed a complaint at the
Commission, alleging that the Appellants violated Section
337(a)(1)(B) by the “importation into the United States, the
sale for importation, and the sale within the United States
after importation” of Ryobi Garage Door Opener models
that infringe the ’319 patent, along with U.S. Patents
TECHTRONIC INDUS. CO. v. ITC 5
7,339,336 and 7,196,611. 1 The Commission then instituted
an investigation.
The Administrative Law Judge issued a claim con-
struction order concerning the patents-in-suit. Order No.
13, Certain Access Control Systems and Components
Thereof, Inv. No. 337-TA-1016 (Jan. 26, 2017) (“ALJ Opin-
ion”), J.A. 5287. The only disputed term of the ’319 patent
was “wall console.” The ALJ acknowledged Chamberlain’s
argument that the plain and ordinary meaning of “wall
console” is “wall-mounted control unit” but decided that,
under this court’s holding in Poly-America, L.P. v. API In-
dustries, Inc., 839 F.3d 1131 (Fed. Cir. 2016), Chamberlain
had disavowed wall consoles lacking a passive infrared de-
tector. ALJ Opinion, slip op. at 14–18. The ALJ deter-
mined that the ’319 patent sets forth its invention as a
passive infrared detector superior to those of the prior art
by virtue of its location in the wall console, rather than in
the head unit, and that the only embodiment in the ’319
patent places the passive infrared detector in the wall con-
sole as well. Thus, the ALJ construed “wall console,” as
“wall-mounted control unit including a passive infrared de-
tector.” Id. at 18.
The ALJ then granted Appellants’ unopposed motion
for summary determination of non-infringement of the ’319
patent based upon the ALJ’s construction. The
1 Chamberlain previously asserted the same patents
in an infringement suit against the Appellants and Ryobi
Technologies Inc. in the United States District Court for
the Northern District of Illinois. First Amended Com-
plaint, Chamberlain Grp., Inc. v. Techtronic Indus. Co., No.
1:16-cv-06094 (N.D. Ill. July 1, 2016), ECF No. 24. That
case is currently stayed pursuant to 28 U.S.C. § 1659, pend-
ing final resolution of the Commission’s investigation. Mi-
nute Entry, Chamberlain Grp., Inc. v. Techtronic Indus.
Co., No. 1:16-cv-06094 (N.D. Ill. Sept. 7, 2016), ECF No. 30.
6 TECHTRONIC INDUS. CO. v. ITC
Commission provided notice that it would review the ALJ’s
order and later issued a decision reversing the ALJ’s con-
struction of “wall console” and vacating his initial determi-
nation of noninfringement. Certain Access Control Systems
and Components Thereof, Inv. No. 337-TA-1016, USITC
Pub. 4957, 2017 WL 11198844 (“Commission Opinion”)
(May 5, 2017). 2
The Commission concluded that, while “the [’319] spec-
ification describes the ‘principal aspect of the present in-
vention’ as providing an improved [passive infrared
detector] for a garage door operator,” the specification dis-
closes other aspects of the invention, and a patentee is not
required to recite in each claim all features described as
important in the written description. Commission Opin-
ion, 2017 WL 11198844, at *9 (citing Golight, Inc. v. Wal-
Mart Stores, Inc., 355 F.3d 1327, 1331 (Fed. Cir. 2004)). In
addition, the Commission noted that the claims of U.S. Pa-
tent 6,737,968, which issued from a parent application, ex-
pressly located the passive infrared detector in the wall
console, “demonstrat[ing] the patentee’s intent to claim
wall control units with and without [passive infrared de-
tectors],” Commission Opinion, 2017 WL 11198844, at *10,
and therefore weighing against disavowal. The Commis-
sion distinguished Poly-America on the basis that the pros-
ecution history of the ’319 patent lacked “the clear
prosecution history disclaimer” present in that case. Id. at
*12.
2 Before the Commission, Chamberlain and the Ap-
pellants agreed that the plain meaning of “wall console” is
“wall-mounted control unit.” Commission Opinion, 2017
WL 11198844, at *4. Moreover, the parties do not argue on
appeal that the slight distinction between “wall console”
and “wall-mounted control unit” is relevant. See Appel-
lants Br. 50; Chamberlain Br. 5, 19; Commission Br. 29.
TECHTRONIC INDUS. CO. v. ITC 7
Under the Commission’s construction, the ALJ found
that Appellants infringed the ’319 patent, a determination
the Commission adopted. Commission Determination,
2018 WL 8519593, at *1. Accordingly, the Commission en-
tered the Remedial Orders against the Appellants. Id. at
*22–24.
This appeal followed. 3 We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(6).
DISCUSSION
Our review of the Commission’s final determination of
a Section 337 violation is governed by the standards of the
Administrative Procedure Act. Ajinomoto Co. v. Int’l Trade
Comm’n, 597 F.3d 1267, 1272 (Fed. Cir. 2010); 19 U.S.C. §
1337(c). Under 5 U.S.C. § 706, we review the Commission’s
legal determinations de novo and its factual findings for
substantial evidence. Converse, Inc. v. Int’l Trade Comm’n,
909 F.3d 1110, 1115 (Fed. Cir. 2018) (citing Cisco Sys., Inc.
v. Int’l Trade Comm’n, 873 F.3d 1354, 1360–61 (Fed. Cir.
2017)). A finding is supported by substantial evidence if a
reasonable mind might accept the evidence as adequate to
support the finding. Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938).
Under 35 U.S.C. § 112, a patent specification must
“conclude with one or more claims particularly pointing out
and distinctly claiming [the invention],” a requirement
3 Chamberlain appealed from the same final deter-
mination, but it did so with respect to the Commission’s
decision that the Appellants did not infringe U.S. Patent
7,339,336. We affirmed that decision separately. See
Chamberlain Grp., Inc. v. Int’l Trade Comm’n, 780 F. App’x
925 (Fed. Cir. 2019). The Commission terminated its in-
vestigation with respect to U.S. Patent 7,196,611. J.A.
13260; Commission Determination, 2018 WL 8519593, at
*3.
8 TECHTRONIC INDUS. CO. v. ITC
that must be complied with “accurately and precisely,”
Gen. Elec. Co. v. Wabash Appliance Corp., 304 U.S. 364,
369 (1938). Patent infringement “requires a finding that
the patent claim covers the alleged infringer’s product or
process, which in turn necessitates a determination of what
the words in the claim mean.” Markman v. Westview In-
struments, Inc., 517 U.S. 370, 374 (1996) (quotation marks
and citation omitted). Claim construction is ultimately an
issue of law, which we review de novo. Shire Dev., LLC v.
Watson Pharm., Inc., 787 F.3d 1359, 1364 (Fed. Cir. 2015).
The Appellants make one principal argument on ap-
peal: that the Commission erred in reversing the ALJ’s
claim construction because, they assert, Chamberlain dis-
avowed coverage of garage door openers with wall consoles
lacking a passive infrared detector. The Appellants point
to the ’319 patent’s consistent description of the invention
as a wall console with a passive infrared detector—a fea-
ture included in the sole embodiment—and the patent’s
disparagement of prior art garage door openers that placed
the detector in the head unit. Under Poly-America and
similar cases, the Appellants maintain, such a description
of the invention as a whole constitutes a disavowal of claim
scope.
Chamberlain argues in response that locating the pas-
sive infrared detector in the wall console is only one aspect
of the invention. It cites in particular the ’319 patent’s use
of digital signaling techniques, along with the disclosed
methods of programming the wall console’s microcontrol-
ler, as means for controlling the operation of the garage
door opener. Chamberlain also highlights portions of the
specification that describe the invention more broadly as
“relat[ing] in general to movable barrier operators” or to
“garage door operators . . . which include passive infrared
detectors associated with them.” Chamberlain Br. 22
(quoting ’319 patent col. 1 ll. 14–17). As a result, Cham-
berlain contends that the ’319 patent’s characterization of
TECHTRONIC INDUS. CO. v. ITC 9
the invention does not rise to the level of a disavowal of
claim scope.
The Commission adds that the claims of the parent ’968
patent are expressly directed to garage door openers that
locate the passive infrared detector in the wall console, in-
dicating the patentee’s intention to seek broader claims in
the instant patent, without specifying the location of the
passive infrared detector.
We agree with the Appellants that Chamberlain disa-
vowed coverage of wall consoles without a passive infrared
detector. Claim terms are normally given their ordinary
and customary meaning, as understood by persons of ordi-
nary skill in the art in view of the specification and prose-
cution history. Phillips v. AWH Corp., 415 F.3d 1303, 1313
(Fed. Cir. 2005) (en banc). But where the inventor has
clearly set forth a different definition of a claim term, or
has manifested that the invention does or does not include
a particular aspect, that intention “is regarded as disposi-
tive.” Id. at 1316 (citing SciMed Life Sys., Inc. v. Adv. Car-
diovascular Sys., Inc., 242 F.3d 1337, 1343–44 (Fed. Cir.
2001)). In the latter circumstance, the inventor has “disa-
vowed” claim scope.
A disavowal must be clear, but it need not be explicit.
See Trs. Of Columbia Univ. v. Symantec Corp., 811 F.3d
1359, 1363 (Fed. Cir. 2016). Disavowal “may be inferred
from clear limiting descriptions of the invention in the
specification or prosecution history.” Aventis Pharma S.A.
v. Hospira, Inc., 675 F.3d 1324, 1330 (Fed. Cir. 2012); see
also Blackbird Tech LLC v. ELB Elecs., Inc., 895 F.3d 1374,
1377–78 (Fed. Cir. 2018) (collecting cases and finding no
disavowal where the specification did not teach that the
feature in question was “important, essential, or critical to
the invention”). An inventor may also disavow claim scope
“by distinguishing the claimed invention over the prior
art.” Ekchian v. Home Depot, Inc., 104 F.3d 1299, 1304
(Fed. Cir. 1997). Ultimately, as this court held in Phillips,
10 TECHTRONIC INDUS. CO. v. ITC
the purpose of claim construction is to “capture the scope
of the actual invention,” and whether “the embodi-
ments . . . define the outer limits of the claim term,” or are
“merely . . . exemplary in nature,” is a question that must
be determined “in the context of the particular patent.”
415 F.3d at 1323–24.
We conclude that the ’319 patent disavows coverage of
wall consoles lacking a passive infrared detector because
the specification, in each of its sections, discloses as the in-
vention a garage door opener improved by moving the pas-
sive infrared detector from the head unit to the wall
console. It is axiomatic that, where the specification “de-
scribes ‘the present invention’ as having [a] feature,” that
representation may disavow contrary embodiments. See
Poly-America, 839 F.3d at 1136 (“[A]n inventor may disa-
vow claims lacking a particular feature when the specifica-
tion describes ‘the present invention’ as having that
feature.” (citing Luminara Worldwide, LLC v. Liown Elecs.
Co., 814 F.3d 1343, 1353 (Fed. Cir. 2016))). The ’319 pa-
tent, by consistently representing the invention as the
placement of the detector in the wall console, has thus ef-
fected a disavowal of alternative locations.
According to the background section, the prior art
taught the use of passive infrared detectors in the head
unit of the garage door opener to control the garage’s light-
ing, but that locating the detector in the head unit was ex-
pensive, complicated, and unreliable. See ’319 patent col.
1 l. 51–col. 2 l. 3. The ’319 patent therefore sets out to solve
the need for “a passive infrared detector for controlling il-
lumination from a garage door operator which could be
quickly and easily retrofitted to existing garage door oper-
ators with a minimum of trouble and without voiding the
warranty.” Id. col. 2 ll. 4–8.
The remaining sections of the patent—even the ab-
stract—disclose a straightforward solution: moving the de-
tector to the wall console. See ’319 patent at Abstract (“A
TECHTRONIC INDUS. CO. v. ITC 11
wall control unit . . . sends baseband signals over a wire
connection to a head unit . . . . An infrared detector causes
a command signal to be sent to the head unit to control . . .
the light source.”); id. at Summary of the Invention, col. 2
ll. 13–22 (disclosing a “passive infrared detector” that, to-
gether with the comparator and the microcontroller, gener-
ate signals to control the garage door opener and lights);
id. col. 2 ll. 17–19 (“Both the infrared detector and the com-
parator and the microcontroller are contained in a wall con-
trol unit.”); id. at Brief Description of the Drawings, col. 3
ll. 10–37 (illustrating the preferred embodiment, “a garage
door operator, having associated with it a passive infrared
detector in a wall control unit and embodying the present
invention”); id. at Detailed Description of the Preferred
Embodiment, col. 3 l. 39–col. 7 l. 26 (describing the pre-
ferred embodiment and teaching, at col. 4 ll. 22–23, a “wall
control, as may best be seen in FIG. 4, includ[ing] a passive
infrared sensor”). 4
The suggestion that the patent recites another inven-
tion—related to programming the microcontroller—in no
way undermines the conclusion that the infrared detector
must be on the wall unit. As Chamberlain and the Com-
mission argue, that portions of the description, particularly
col. 4 l. 60–col. 7 l. 26, concern an exemplary method of pro-
gramming the microcontroller to interact with the head
unit by means of certain digital signaling techniques,
4 In addition, Figures 5–11, which illustrate in detail
the wall console of Figures 1 and 4, appear to depict the
passive infrared detector behind a lens. Provisional Appli-
cation 60/128,209, from which the ’968 patent and ’319 pa-
tent claim priority, specified that the passive infrared
detector was located behind a “Fresnel lens 61” in Figures
5–11. Provisional Application 60/128,209, Apr. 7, 1999,
Miscellaneous Incoming Letter, Specification at page 6 l.
17.
12 TECHTRONIC INDUS. CO. v. ITC
matters not strictly related to the detector. But the entire
purpose of this part of the description is to enable place-
ment of the detector in the wall console, and it never dis-
cusses programming the microcontroller or applying
digital signaling techniques for any purpose other than
transmitting lighting commands from the wall console.
See, e.g., ’319 patent col. 5 ll. 46–49, col. 6 ll. 9–11, col. 7 ll.
12–19; see also id. col. 2 ll. 36–63.
Moreover, claim 1 is not limited to any specific pro-
gramming means or digital signaling technique, and the
specification teaches that the signaling is accomplished
through “conventional signaling channels” connecting the
wall console and the head unit. ’319 patent col. 2 l. 67. And
Claim 1’s requirement of a “digital data bus” is supported
in the specification only by a disclosure of “the lines carry-
ing the normal wall control switch signals.” J.A. 4628
(identifying “line 62” in the specification, col. 4 ll. 5–32, as
the bus). Thus, this section of the ’319 patent can only be
understood as disclosing means to enable placement of the
detector in the wall console by using preexisting compo-
nents of the garage door opener.
Nevertheless, the Commission maintains that the ’319
patent’s criticism of prior art garage door openers that lo-
cated the detector in the head unit, and its disclosure of a
solution to that problem in the form of locating the detector
in the wall console, fall short of disavowal because
“[n]owhere does the ’319 patent state that it is impossible
or even infeasible to locate a passive infrared detector at
some other location.” Commission Br. 58.
We disagree with the Commission. While “mere criti-
cism” of a particular embodiment will not always rise to the
level of disavowal, depending on the rest of the intrinsic
record, see Thorner v. Sony Computer Entm’t Am. LLC, 669
F.3d 1362, 1366–68 (Fed. Cir. 2012), we must construe
claims “in the light of the specifications and . . . with a view
to ascertaining the invention.” United States v. Adams,
TECHTRONIC INDUS. CO. v. ITC 13
383 U.S. 39, 49 (1966) (collecting cases). Where, as here,
the specification plainly represents the scope of the inven-
tion to the exclusion of some embodiments, it is unneces-
sary that it also concede that those embodiments are
“infeasible” or even “impossible” by reference to its teach-
ings. See Trs. of Columbia Univ., 811 F.3d at 1363–64 (re-
jecting a requirement of “express[]” disavowal (citing
Phillips, 415 F.3d at 1320–21)). Indeed, it is difficult to
imagine a situation in which the Commission’s standard
for disavowal would be satisfied. Here, the entire specifi-
cation focuses on enabling placement of the passive infra-
red detector in the wall console, which is both responsive
to the prior art deficiency the ’319 patent identifies and re-
peatedly set forth as the objective of the invention. Thus,
the ’319 patent disavows locating the detector elsewhere,
even without an express concession to that effect.
Finally, we reject the contention of Chamberlain and
the Commission that the ’319 patent’s prosecution history
is inconsistent with disavowal. As these parties note, we
have long held that claims must be construed in light of
both the specification and the prosecution history. See, e.g.,
Phillips, 415 F.3d at 1317. Disavowal may be unlikely
where the prosecution history contains contradictory state-
ments, see Cont’l Circuits LLC v. Intel Corp., 915 F.3d 788,
798–99 (Fed. Cir. 2019), but there is also no requirement
that the prosecution history reiterate the specification’s
disavowal.
Here, the prosecution history sheds little light on the
meaning of “wall console.” As Chamberlain notes, it previ-
ously obtained claims expressly locating the passive infra-
red detector in the wall console in the ’968 patent. But, as
the Appellants respond, when later faced with an enable-
ment rejection during prosecution of the ’319 patent,
Chamberlain identified as its enabling disclosure the wall
console of the preferred embodiment, which contains a pas-
sive infrared detector. J.A. 4628.
14 TECHTRONIC INDUS. CO. v. ITC
We do not find the arguments of Chamberlain and the
Commission persuasive. In particular, the fact that Cham-
berlain obtained more modest claims in its parent patent
does not inoculate it from the specification’s disavowal. See
Retractable Techs., Inc. v. Becton, Dickinson & Co., 653
F.3d 1296, 1305 (Fed. Cir. 2011) (“[A]ny presumption cre-
ated by the doctrine of claim differentiation ‘will be over-
come by a contrary construction dictated by the written
description or prosecution history.’” (quoting Seachange
Int’l, Inc. v. C-COR, Inc., 413 F.3d 1361, 1369 (Fed. Cir.
2005))). The prosecution history lacks any indication that
Chamberlain defined “wall console” differently there than
in the specification, which discloses a wall console with a
passive infrared detector as the critical and inventive fea-
ture.
We conclude that the ’319 patent disavows wall con-
soles lacking a passive infrared detector. Accordingly, we
reverse the Commission’s claim construction order and
hold that the term “wall console” in each of the ’319 patent
claims is properly construed as “wall-mounted control unit
including a passive infrared detector.” Because the parties
agree that the Appellants do not infringe the ’319 patent
under the ALJ’s claim construction, Appellants Br. 50; J.A.
9105–10, the Commission’s determination of infringement
must also be reversed.
CONCLUSION
We have considered the parties’ further arguments but
find them unpersuasive. For the foregoing reasons, we re-
verse the Commission’s construction of “wall console” and
its final determination of infringement, and we vacate the
Remedial Orders.
REVERSED-IN-PART AND VACATED-IN-PART
COSTS
Costs to Appellants.