Ipxl Holdings, L.L.C. v. Amazon.com, Inc.

United States Court of Appeals for the Federal Circuit

05-1009, -1487

IPXL HOLDINGS, L.L.C.,

Plaintiff-Appellant,

v.

AMAZON.COM, INC.,

Defendant-Appellee.

Jan M. Conlin, Robins, Kaplan, Miller & Ciresi LLP, of Minneapolis, Minnesota,
argued for plaintiff-appellant. With her on the brief were Richard M. Martinez, Emily M.
Rome and Nicole E. Narotzky. Of counsel was Munir R. Meghjee.

David K. Callahan, Kirkland & Ellis LLP, of Chicago, Illinois, argued for
defendant-appellee. With him on the brief were Thomas G. Pasternak; and Edward C.
Donovan, of Washington, DC. Of counsel were David Rokach, of Chicago, Illinois;
Christine E. Duh and David S. Olson of San Francisco, California.

Appealed from: United States District Court for the Eastern District of Virginia

Judge Leonie M. Brinkema
 United States Court of Appeals for the Federal Circuit

05-1009, -1487

IPXL HOLDINGS, L.L.C.,

Plaintiff-Appellant,

v.

AMAZON.COM, INC.,

Defendant-Appellee.

___________________________

DECIDED: November 21, 2005
___________________________

Before CLEVENGER, RADER, and SCHALL, Circuit Judges.

CLEVENGER, Circuit Judge.

Plaintiff-appellant IPXL Holdings, L.L.C. ("IPXL") appeals the judgment of the

United States District Court for the Eastern District of Virginia granting summary

judgment in favor of Defendant-appellee Amazon.com, Inc. ("Amazon"), see IPXL

Holdings, L.L.C. v. Amazon.com, Inc., 333 F. Supp. 2d 513 (E.D. Va. 2004) ("Summary

Judgment"), and awarding Amazon attorney fees, see IPXL Holdings, L.L.C. v.

Amazon.com, Inc., No. 04-CV-70 (E.D. Va. Sept. 24, 2004) ("Attorney Fees"). IPXL

sued Amazon, alleging that Amazon's "1-click system" infringed claims 1, 2, 9, 15 and

25 of its U.S. Patent No. 6,149,055 ("the '055 patent"). The district court found that

Amazon's system did not infringe the '055 patent and that all relevant claims were

invalid. Finding that the case was "exceptional," the district court awarded Amazon
attorney fees and costs under 35 U.S.C. § 285. Because we agree that claims 1, 2, 9,

15 and 25 are invalid, we affirm the district court's grant of summary judgment on

invalidity and need not reach its ruling on noninfringement. However, because Amazon

did not timely file its motion for attorney fees under Fed. R. Civ. P. 54(d)(2)(B), we

reverse the district court's grant of attorney fees and costs.

I

The '055 patent, entitled "Electronic Fund Transfer or Transaction System," is

directed to a system for executing electronic financial transactions, such as an

electronic fund transfer system, including automated teller machines ("ATMs") or point

of sale ("POS") terminals. The essence of the '055 patent is that the system stores

information previously defined by the user and displays that information to the user in a

single screen, from which the user may select a transaction. Thus, the system allows

the user to execute a financial transaction in fewer steps.

Representative claim 1 reads as follows:

An electronic financial transaction system for executing financial transactions, the
transactions being characterized by a transaction type and a plurality of
transaction parameters, the system comprising:
a central controller;
a communications network;
a terminal device selectively connectable to the central controller through the
communications network, the terminal device comprising:
a processor;
a display connected to the processor;
an input mechanism for providing input to the processor;
the system further comprising means for storing user defined transaction
information, the transaction information comprising at least one of user
defined transactions and user defined transaction parameters;
the processor causing the display to display on a single screen stored
transaction information; the input mechanism enabling a user to use the
displayed transaction information to execute a financial transaction or to
enter selections to specify one or more transaction parameters.

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'055 patent, col. 20, ll. 24-46. Claims 2, 9, 15 and 25 recite the system of claim 1, with

additional limitations.

The accused system, the 1-click system, enables customers to purchase goods

online from Amazon.com. The system allows customers who have previously stored

information, including credit card numbers and shipping addresses, to place an order

without having to reenter the stored information. Amazon stores each order placed

using the 1-click system for ninety minutes, during which time the order can be modified

or cancelled. At the end of ninety minutes, the orders remaining in the system are

finalized; once the orders have been finalized and the goods have been shipped,

Amazon requests funds from the user's credit card.

The district court, having construed the claim terms, found that the 1-click system

did not meet the following claim limitations: "electronic financial transaction," "stored

transaction information," and "single screen." The district court also found that claims 1,

2, 9 and 15 were anticipated, and thus invalid under 35 U.S.C. § 102, as each limitation

of the claims was disclosed by U.S. Patent No. 5,389,773 ("the Coutts patent").

Further, the district court found that claim 25 was indefinite, and thus invalid under

35 U.S.C. § 112, as it claimed both a system and a method for using that system.

Finding the case to be "exceptional," the district court awarded attorney fees and costs

under 35 U.S.C. § 285. On June 28, 2005, the district court set attorney fees and costs

in the sum of $1,674,645.82, plus interest. See IPXL Holdings, L.L.C. v. Amazon.com,

Inc., No. 04-CV-70 (E.D. Va. June 28, 2005).

On appeal, IPXL argues that the district court erred in several respects with

regard to claim construction and that its judgment of noninfringement is therefore

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incorrect. IPXL also challenges the district court's determination that the Coutts patent

anticipated claims 1, 2, 9 and 15 of the '055 patent, arguing that the Coutts patent does

not disclose three aspects of the "single screen" limitation: a single screen, on which a

stored transaction is displayed, and from which a user may select transaction

parameters. IPXL further argues that claim 25 does not contain a method limitation

within an apparatus claim and that the claim is therefore not indefinite. IPXL also

challenges the award of attorney fees on the grounds that Amazon's motion for attorney

fees was untimely under Fed. R. Civ. P. 54, as it was made more than fourteen days

after entry of judgment. IPXL also argues that attorney fees were not warranted, as

there was no showing of subjective bad faith such that the case cannot be found to be

"exceptional."

Amazon argues that there was no error in the district court's claim construction

and that both the decisions on noninfringement and invalidity are correct. Amazon also

argues that its motion for attorney fees was timely and that, in any case, it was within

the district court's discretion to allow the motion. Finally, Amazon argues that the case

was "exceptional" and that the district court properly exercised its discretion to award

attorney fees.

We hold that the district court correctly found that claims 1, 2, 9 and 15 are

anticipated by the Coutts patent and that claim 25 is indefinite. Because the claims in

suit are invalid, we need not visit the question of whether the district court erred in

determining that the claims were not infringed. In addition, we hold that the correct way

to perfect a claim to attorney fees under 35 U.S.C. § 285 is through compliance with

Fed. R. Civ. P. 54. Because Amazon did not file a timely request for attorney fees

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under that rule, the district court erred in granting attorney fees to Amazon, and we

reverse the order granting attorney fees. Because the award of fees was improper, we

need not address IPXL's contention that the case was not "exceptional" under 35 U.S.C.

§ 285.

II

Claim construction is a question of law that this court reviews de novo. Cybor

Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed. Cir. 1998) (en banc). Similarly,

indefiniteness is a question of law. Atmel Corp. v. Info. Storage Devices, 198 F.3d

1374, 1378 (Fed. Cir. 1999). Anticipation is a question of fact. Med. Instrumentation &

Diagnostics Corp. v. Elekta AB, 344 F.3d 1205, 1220 (Fed. Cir. 2003).

Summary judgment is appropriate when no genuine issue of material fact exists

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

"In determining whether there is a genuine issue of material fact, the evidence must be

viewed in the light most favorable to the party opposing the motion, with doubts

resolved in favor of the opponent." Chiuminatta Concrete Concepts, Inc. v. Cardinal

Indus., 145 F.3d 1303, 1307 (Fed. Cir. 1998). When a district court grants summary

judgment, we review de novo both whether there are disputed material facts and

whether the prevailing party is entitled to judgment as a matter of law. SunTiger, Inc. v.

Scientific Research Funding Group, 189 F.3d 1327, 1333 (Fed. Cir. 1999).

In reviewing a motion for attorney fees under 35 U.S.C. § 285, we review factual

findings, such as whether a case is exceptional, for clear error. Cybor Corp., 138 F.3d

at 1460. We review de novo whether the district court applied the proper legal standard

to the case. Sulzer Textil A.G. v. Picanol N.V., 358 F.3d 1356, 1363 (Fed. Cir. 2004).

05-1009, -1487 5
We then review the court's decision whether or not to award attorney fees under an

abuse of discretion standard. Id.

III

Anticipation by the Coutts patent

A claim is anticipated under 35 U.S.C. § 102 "if each and every limitation is found

either expressly or inherently in a single prior art reference." Bristol-Myers Squibb

Co. v. Ben Venue Labs, Inc., 246 F.3d 1368, 1343 (Fed. Cir. 2001). Under 35 U.S.C.

§ 282, patents are presumed to be valid. However, a patent may be found to be

anticipated on the basis of a reference that had properly been before the patent

examiner in the United States Patent and Trademark Office ("PTO") at the time of

issuance. See Prima Tek II, L.L.C. v. Polypap, S.A.R.L., 412 F.3d 1284, 1287 (Fed. Cir.

2005). The patent examiner in the instant case had initially rejected the '055 patent in

light of the Coutts patent and the Anderson reference, which is not at issue here.

Summary Judgment, 333 F. Supp. 2d at 535. However, the patentee argued that the

Coutts patent did not disclose "displaying transaction information on a single screen,"

and the examiner allowed the '055 patent. Id. at 536. At summary judgment, however,

the district court held that there could be no genuine dispute that the Coutts patent

disclosed each limitation of claims 1, 2, 9 and 15 of the '055 patent and thus held that

these claims were anticipated and invalid. Id. at 536-43. On appeal, IPXL only

challenges the district court's findings in regard to the "single screen" limitation.

The Coutts patent relates to a self-service system, such as an ATM, that uses

predictive technology to increase the speed of operation of the system. After the user

enters an identification card, the system predicts the user's desired transaction based

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upon "a stored record in the system, representing previous transactions by that user,"

and displays that information in order "to simplify the decisions and selections required

to be made by the user." Coutts patent, abstract.

IPXL argues that the Coutts patent does not disclose the "single screen"

limitation of the '055 patent, namely, "display[ing] on a single screen stored transaction

information; the input mechanism enabling a user to use the displayed transaction

information to execute a financial transaction or to enter selections to specify one or

more transaction parameters." '055 patent, col. 20, ll. 41-46. IPXL argues that in the

Coutts patent, transaction parameters are selected over multiple screens, not in a single

screen. Further, IPXL argues that the screen does not display "stored transaction

information." Finally, IPXL argues that the input mechanism does not allow a user to

use the displayed information "to specify one or more transaction parameters."

The district court construed the single screen limitation to require "[t]he

presentation of stored transaction information to a user on one screen, without the user

having to first encounter any preliminary screens that would require the user to select a

transaction type or a transaction parameter. " Summary Judgment, 333 F. Supp. 2d at

538-39. IPXL disputes the district court's construction of the term "stored transaction

information," as discussed infra, such that it argues that the district court improperly

construed what must be displayed on the "single screen." However, IPXL does not

dispute the underlying construction of the one screen part of the single screen limitation

construction quoted above.

The district court construed the term "stored transaction information" to require a

user-defined transaction, characterized by a transaction type and a plurality of user-

05-1009, -1487 7
defined transaction parameters, plus an additional user-defined transaction parameter.

Id. at 519, 525-26, 538-39. Thus, under the district court's construction, "stored

transaction information" requires a user-defined transaction type and three user-defined

transaction parameters.

The district court further construed the term "transaction type" to mean "[a]

particular kind, class, or group of electronic transfer[s] of funds or a particular kind,

class, or group of electronic inquir[ies] as to funds. Examples of transaction types

include withdrawals, deposits, transfers, payments, and balance inquiries." Id. at 524.

The district court construed the term "transaction parameter" to mean "[a] property

whose value determines the characteristics of (1) an electronic transfer of funds, or

(2) an electronic inquiry as to funds. Examples of transaction parameters include the

identification of the specific account, and the specific dollar amount." Id. at 524-25.

IPXL argues that the terms "transaction type" and "transaction parameter" were

impermissibly limited to electronic transfer of funds or electronic inquiries as to funds.

However, it does not contest the essential claim construction, i.e. that transaction type

refers to the kind of transaction that takes place, whereas transaction parameter refers

to a property whose value determines the characteristics of a transaction.

IPXL also argues before this court that "stored transaction information" requires

only a user-defined transaction type and a single user-defined transaction parameter,

not three user-defined transaction parameters. However, under either construction of

the term "stored transaction information," the Coutts patent anticipates claims 1, 2, 9

and 15 of the '055 patent.

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 As noted by the district court, the Coutts patent teaches that "the processor

means 32 causes a particular menu to be displayed on the lead-through display screen

18 following initiation of a transaction by a user and following a prediction that particular

services are likely to be requested by the user." Coutts patent, col. 3, ll. 40-43. The

menu displayed may be, "[f]or example, a simplified menu . . . consisting of only four

questions, such as: 'Do you require $20?', 'Do you require $30?', 'Do you require a mini-

statement?', and 'Do you require some other transaction?'." Id. col. 3, ll. 45-49. Thus,

the Coutts patent discloses a screen displaying stored transaction information.

IPXL argues, however, that the patent requires navigating through the "lead

through display" in order to execute the transaction and that such a "lead through

display" requires a "series of screens and instructions." Pet. Br. at 46. Thus, IPXL

argues that the screen displayed is not the "single screen" of the '055 patent. However,

nothing in the Coutts patent indicates that the phrase "lead through display" refers to a

series of screens. Rather, as the district court noted, the "lead through display" refers to

a physical component, not the image presented. Summary Judgment, 333 F. Supp. 2d

at 539-40. The Coutts patent refers to the same component, element 18, by four

different names: lead-through display screen, lead-through display, display screen, and

screen. Figure 2, a schematic diagram of an ATM, groups element 18 – a "lead-through

display" – with two other physical objects, an input means and a card reader. Thus, the

patent notes that a "visual display" is made "on the screen 18." Coutts patent, col. 5, ll.

7-12. All together, this indicates that element 18, the "lead-through display" is a

physical object upon which information is displayed.

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 In addition, the description of the patented Coutts invention indicates that a single

screen display was contemplated. Id. col. 4, ll. 44-53. After a user identification

process, i.e. inserting an identification card and entering a personal identification

number, the display screen shows possible transactions to be chosen. This, the patent

notes, is "the commencement of the interaction process." Id. col. 4, ll. 51-52. If one of

the displayed transactions is desired, the user must simply indicate the desired

transaction through the input means, and the transaction is completed. Id. col. 4, ll. 49-

53. Thus, no transaction information need be entered before the single screen displays

a plurality of predicted transactions, which are based on previously entered transaction

information.

IPXL further argues that the Coutts patent does not display the stored transaction

information. However, the Coutts patent clearly discloses the display of multiple

transaction types and multiple transaction parameters. For example, the summary of

the invention discloses the types of services which may be performed using a single

terminal, including withdrawal (transaction type 1) of different cash amounts (transaction

parameter 1), account balance inquiry (type 2) via printing (parameter 2) or display

(parameter 3), or transaction inquiry (type 3) via printing of a mini-statement (parameter

4) or a full statement (parameter 5). Id. col. 1, l. 65 – col. 2, l. 7. Similarly, the

aforementioned example of a simplified menu displays two transaction types,

withdrawal and transaction inquiry, and at least three transaction parameters, an

amount of $20, an amount of $30, and the printing of a mini-statement. Id. col. 3, ll.

45-49. In addition, it is clear that these transaction parameters and transaction types

are "user-defined" and "stored" as the transaction options presented are predicted

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based upon "previous transactions by that user" that are in a "stored record." Id.

abstract; see also id. col. 6, ll. 36-38, 41-43.

Finally, IPXL argues that the Coutts patent does not enable the user to "enter

selections to specify one or more transaction parameters." However, as noted above,

the Coutts patent allows a user to select one of a variety of transaction options. As an

example, the patent notes that a simplified menu on a single screen will offer choices

"such as: 'Do you require $20?', 'Do you require $30?', 'Do you require a mini-

statement?', and 'Do you require some other transaction?'." Id. col. 3, ll. 45-49. If one

of the options is that which the user prefers, he may input appropriately, and the

transaction is completed. IPXL argues that this constitutes "selecting one transaction

over another" and that it does not constitute "enter[ing] selections to specify one or

more transaction parameters." Pet. Br. at 49. However, choosing between withdrawing

$20 and $30 involves specifying one of two transaction parameters, i.e. the amount of

the transaction. Thus, the Coutts patent discloses enabling a user to "enter selections

to specify one or more transaction parameters."

As the Coutts patent discloses the single screen limitation recited above, and

IPXL does not contest that it discloses the other limitations of claims 1, 2, 9, and 15 of

the '055 patent, we affirm the district court's grant of summary judgment to Amazon on

the ground that the Coutts patent anticipates claims 1, 2, 9 and 15 of the '055 patent.

Indefiniteness of Claim 25

The district court found that claim 25 is indefinite under 35 U.S.C. § 112, as it

attempts to claim both a system and a method for using that system. Section 112,

paragraph 2, requires that the claims of a patent "particularly point[] out and distinctly

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claim[] the subject matter which the applicant regards as his invention." 35 U.S.C.

§ 112 (2000). A claim is considered indefinite if it does not reasonably apprise those

skilled in the art of its scope. Amgen, Inc. v. Chugai Pharm. Co., 927 F.2d 1200, 1217

(Fed. Cir. 1991).

Whether a single claim covering both an apparatus and a method of use of that

apparatus is invalid is an issue of first impression in this court. The Board of Patent

Appeals and Interferences ("Board") of the PTO, however, has made it clear that

reciting both an apparatus and a method of using that apparatus renders a claim

indefinite under section 112, paragraph 2. Ex parte Lyell, 17 USPQ2d 1548 (BPAI

1990). As the Board noted in Lyell, "the statutory class of invention is important in

determining patentability and infringement." Id. at 1550 (citing In re Kuehl, 475 F.2d

658, 665 (CCPA 1973); Rubber Co. v. Goodyear, 76 U.S. 788, 796 (1870)). The Board

correctly surmised that, as a result of the combination of two separate statutory classes

of invention, a manufacturer or seller of the claimed apparatus would not know from the

claim whether it might also be liable for contributory infringement because a buyer or

user of the apparatus later performs the claimed method of using the apparatus. Id.

Thus, such a claim "is not sufficiently precise to provide competitors with an accurate

determination of the 'metes and bounds' of protection involved" and is "ambiguous and

properly rejected" under section 112, paragraph 2. Id. at 1550-51. This rule is well

recognized and has been incorporated into the PTO's Manual of Patent Examination

Procedure. § 2173.05(p)(II) (1999) ("A single claim which claims both an apparatus and

the method steps of using the apparatus is indefinite under 35 U.S.C. 112, second

paragraph."); see also Robert C. Faber, Landis on Mechanics of Patent Claim Drafting

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§ 60A (2001) ("Never mix claim types to different classes of invention in a single

claim.").

Claim 25 recites both the system of claim 2 and a method for using that system.

The claim reads:

The system of claim 2 [including an input means] wherein the predicted
transaction information comprises both a transaction type and transaction
parameters associated with that transaction type, and the user uses the
input means to either change the predicted transaction information or
accept the displayed transaction type and transaction parameters.

'055 patent, col. 22, ll. 8-13 (emphasis added).

Thus, it is unclear whether infringement of claim 25 occurs when one creates a

system that allows the user to change the predicted transaction information or accept

the displayed transaction, or whether infringement occurs when the user actually uses

the input means to change transaction information or uses the input means to accept a

displayed transaction. Because claim 25 recites both a system and the method for

using that system, it does not apprise a person of ordinary skill in the art of its scope,

and it is invalid under section 112, paragraph 2.

IV

Judgment in favor of Amazon was entered on August 27, 2004. On September

13, 2004, Amazon filed a motion for attorney fees seeking relief under three different

statutory provisions: 28 U.S.C. § 1927, Fed. R. Civ. P. 11, and 35 U.S.C. § 285. IPXL

responded with a motion to strike, arguing that any motion for attorney fees must

comply with Fed. R. Civ. P. 54(d)(2)(B), which provides that “[u]nless otherwise

provided by statute or order of the court, the motion must be filed no later than 14 days

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after entry of judgment.” Because Amazon’s motion, filed seventeen days after entry of

judgment, was untimely, IPXL contended that the motion must be struck.

Amazon responded to the motion to strike, arguing that the 14-day limit was

inapplicable because, in Amazon’s view, its motion was one for sanctions under Fed. R.

Civ. P. 54(d)(2)(E), which provides that the 14-day rule does not apply to “claims for

fees and expenses as sanctions for violations of these rules or under 28 U.S.C. § 1927.”

Amazon made no attempt to claim excuse for breach of the 14-day rule under Fed. R.

Civ. P. 6(b), which permits enlargement of the 14-day time period of Rule 54, but only

subject to the strictures of Rule 6(b). As Amazon made no attempt to seek enlargement

of the 14-day time period pursuant to Rule 6, it is not surprising that Amazon pitched its

argument to district court under Rule 54(d)(2)(E).

The district court decided the attorney fee issue on the written record provided by

the parties. First, the district court rejected Amazon’s plea for relief based on Rule 11.

Transcript of Motions Hearing at 4, IPXL Holdings, L.L.C. v. Amazon.com, Inc., No.

04-CV-70 (E.D. Va. Sept. 24, 2004). Next, the district court rejected 28 U.S.C. § 1927

as a ground for attorney fees in this case. Id. Amazon does not contest that aspect of

the district court decision. Finally, the district court recognized that Amazon’s motion

was out of time under Rule 54. Noting that no showing of good cause had been made

under Rule 6 for enlargement of the 14-day time period, the district court commented

that “there is some merit” to IPXL’s motion to strike. Id. at 4-5.

Nonetheless, the district court held that a claim to attorney fees under section

285 “is not barred by the [14-day] time limit” and that even if attorney fees under that

provision were subject to Rule 54, the court would “exercise its discretion and allow

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Amazon leave to file out of time.” Id. at 5. Consequently, the district court denied

IPXL’s motion to strike and, finding the case exceptional, granted Amazon’s motion for

attorney fees under section 285.

IPXL appeals the award of attorney fees, arguing that the proper way to perfect a

claim to attorney fees under section 285 is through compliance with Rule 54. IPXL

disputes the district court’s holding that section 285 itself grants authority to a district

court to award attorney fees thereunder, even where Rule 54 is not satisfied.

Consequently, IPXL asserts that the district court lacked authority to consider the

motion for attorney fees. With no proper motion before it, the district court had no issue

upon which it could exercise its discretion.

Amazon counters by placing its reliance again on Rule 54(d)(2)(E). Because the

district court determined that this was not a “close case” when deciding that the case

was exceptional, Amazon argues that the district court in essence held that the case

was legally frivolous such as to warrant sanctions for violation of Rule 11. Thus,

according to Amazon, the attorney fee award was a sanction for violation of one of

“these rules” in accordance with Rule 54(d)(2)(E). We reject this argument. The district

court did not hold that the case was "frivolous" under Rule 11. Rather, it awarded

attorney fees under 35 U.S.C. § 285.

Amazon’s second ground to support the award of attorney fees is that the district

court properly exercised its discretion to enlarge the 14-day filing time under Rule 6(b).

Even assuming the district court was referring to Rule 6(b) when it allowed Amazon to

file out of time, the record is clear that Amazon never made a motion under Rule

6(b)(2), seeking enlargement of time after the 14-day time period had run, based on

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“excusable neglect,” which is the standard the district court must apply in exercising

discretion to enlarge time under that subsection of Rule 6.

We think it is clear that on this record there is no basis for an award of attorney

fees under Rule 11 or 28 U.S.C. § 1927. Assuming this is an exceptional case, an

issue we do not reach, Amazon’s claim to fees under section 285 is viable. However,

we hold that any claim to attorney fees must be processed in compliance with Rule

54(d)(2)(B). No provision in section 285 exempts requests for attorney fees thereunder

from compliance with Rule 54(d)(2)(B).

The district court’s holding that section 285 itself can support an award of

attorney fees without regard to when the relief is requested is legally incorrect. Further,

in this case, the 14-day rule of Rule 54 was breached, and Amazon took no steps under

Rule 6(b)(2) that could have afforded the district court a basis upon which to exercise

discretion to enlarge the 14-day time period. Consequently, the district court abused its

discretion in enlarging the applicable time and in denying IPXL’s motion to strike. The

district court was here obligated to grant IPXL’s motion, and the award of attorney fees

and costs to Amazon is therefore reversed.

COSTS

No costs.

AFFIRMED IN PART AND REVERSED IN PART

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