OCTOBER TERM, 1998
Syllabus
PFAFF
v. WELLS ELECTRONICS, INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL
CIRCUIT
No. 97-1130. Argued October 6, 1998-Decided November 10,
1998
Under § 102(b) of the Patent Act of 1952, no one can patent an
"invention" that has been "on sale" more than one year before
filing a patent application. In early 1981, petitioner Pfaff
designed a new computer chip socket and sent detailed engineering
drawings of the socket to a manufacturer. He also showed a sketch
of his concept to representatives of Texas Instruments, which
placed an order for the new sockets prior to April 8, 1981. In
accord with his normal practice, Pfaff did not make and test a
prototype before offering to sell the socket in commercial
quantities. He filled the order in July 1981, and thus the evidence
indicates that he first reduced his invention to practice that
summer. He applied for a patent on April 19, 1982, making April 19,
1981, the critical date for § 102(b)'s on-sale bar. After the
patent issued, he lost an infringement action he filed against
respondent, Wells Electronics, Inc. Subsequently, he brought this
suit, alleging that a modified version of Wells' socket infringed
six of his patent's claims. The District Court held,
inter
alia, that three of the claims were infringed, rejecting Wells'
§ 102(b) defense on the ground that Pfaff had filed the patent
application less than a year after reducing the invention to
practice. In reversing, the Court of Appeals concluded, among other
things, that § 102(b)'s I-year period began to run when the
invention was offered for sale commercially, not when it was
reduced to practice.
Held: Pfaff's patent is invalid because the invention had
been on sale for more than one year in this country before he filed
his patent application. Pp. 60-69.
(a) The primary meaning of "invention" in the Patent Act
unquestionably refers to the inventor's conception rather than to a
physical embodiment of that idea. The statute contains no express
"reduction to practice" requirement, see §§ 100, 101, 102(g), and
it is well settled that an invention may be patented before it is
reduced to practice. In
The Telephone Cases, 126 U. S. 1, 535-536, this
Court upheld a patent issued to Alexander Graham Bell even though
he had filed his application before constructing a working
telephone. Applying the reasoning of
The Telephone Cases to
the facts of this case, it is evident that Pfaff could have
obtained a patent when he accepted Texas Instruments' order, for at
that time he provided the manufacturer with a description
56
Syllabus
and drawings of "sufficient clearness and preCISIon to enable
those skilled in the matter" to produce the device, id., at 536.
Pp. 60-63.
(b) Pfaff's nontextual argument-that longstanding precedent,
buttressed by the interest in providing inventors with a clear
standard identifying the onset of the I-year period, justifies a
special interpretation of "invention" in § 102(b)-is rejected.
While reduction to practice provides sufficient evidence that an
invention is complete, the facts of
The Telephone Cases and
this case show that such proof is not necessary in every case. Pp.
63-66.
(c) The on-sale bar applies when two conditions are satisfied
before the critical date. First, the product must be the subject of
a commercial offer for sale. Here, the acceptance of the purchase
order prior to April 8, 1981, makes it clear that such an offer had
been made, and there is no question that the sale was commercial.
Second, the invention must be ready for patenting. That condition
may be satisfied in at least two ways: by proof of reduction to
practice before the critical date; or by proof that prior to the
critical date the inventor had prepared drawings or other
descriptions of the invention that were sufficiently specific to
enable a person skilled in the art to practice the invention. This
condition is satisfied here because the drawings sent to the
manufacturer before the critical date fully disclosed the
invention. Pp.67-69.
124 F.3d
1429, affirmed.
STEVENS, J., delivered the opinion for a unanimous Court.
Jerry R. Selinger argued the cause for petitioner. With
him on the briefs were
Susan E. Powley and
Jack A.
Kanz.
C. Randall Bain argued the cause for respondent. With him on the
brief were Alan H. Blankenheimer, Patricia A. Hubbard, C. Mark
Kittredge, and James D. Hall.
Jeffrey P. Minear argued the cause for the United States as
amicus curiae urging affirmance. With him on the brief were
Solicitor General Waxman, Assistant Attorneys General Hunger and
Klein, Deputy Solicitor General Wallace, William Kanter, Alfred
Mollin, David Siedman, Mark S. Popofsky, Nancy J. Linck, and Albin
F. Drost. *
*Briefs of
amici curiae urging reversal were filed for
Global Gaming Technology, Inc., by
Joseph M. Vanek; for the
American Intellectual Prop-
57
JUSTICE STEVENS delivered the opinion of the Court. Section
102(b) of the Patent Act of 1952 provides that no person is
entitled to patent an "invention" that has been "on sale" more than
one year before filing a patent application.1 We granted certiorari
to determine whether the commercial marketing of a newly invented
product may mark the beginning of the i-year period even though the
invention has not yet been reduced to practice.2
I
On April 19, 1982, petitioner, Wayne Pfaff, filed an application
for a patent on a computer chip socket. Therefore, April 19, 1981,
constitutes the critical date for purposes of the on-sale bar of 35
U. S. C. § 102(b); if the i-year period
erty Law Association by Robert H. Fischer, Gary L. Griswold,
Robert L. Baechtold, and J. Michael Jakes; for the Federal Circuit
Bar Association by George E. Hutchinson, Denise W DeFranco, and
James F. McKeown.
Briefs of
amici curiae urging affirmance were filed for
View Engineering, Inc., by
Ernie L. Brooks and
Frank A.
Angileri; for the Dallas-Fort Worth Intellectual Property Law
Association by
D. Scott Hemingway and
Louis Touton;
for the Mas-Hamilton Group by
David E. Schmit; and for the
Patent, Trademark & Copyright Section of the Bar Association of
the District of Columbia by
Bruce T. Wieder.
1 "A person shall be entitled to a patent unless-
"(b) the invention was patented or described in a printed
publication in this or a foreign country or in public use or on
sale in this country, more than one year prior to the date of the
application for patent in the United States, or .... " 35 U. S. C.
§ 102.
2 "A process is reduced to practice when it is successfully
performed. A machine is reduced to practice when it is assembled,
adjusted and used. A manufacture is reduced to practice when it is
completely manufactured. A composition of matter is reduced to
practice when it is completely composed."
Corona Cord Tire
Co. v.
Dovan Chemical Corp., 276 U. S. 358, 383
(1928).
58
began to run before that date, Pfaff lost his right to patent
his invention.
Pfaff commenced work on the socket in November 1980, when
representatives of Texas Instruments asked him to develop a new
device for mounting and removing semiconductor chip carriers. In
response to this request, he prepared detailed engineering drawings
that described the design, the dimensions, and the materials to be
used in making the socket. Pfaff sent those drawings to a
manufacturer in February or March 1981.
Prior to March 17, 1981, Pfaff showed a sketch of his concept to
representatives of Texas Instruments. On April 8, 1981, they
provided Pfaff with a written confirmation of a previously placed
oral purchase order for 30,100 of his new sockets for a total price
of $91,155. In accord with his normal practice, Pfaff did not make
and test a prototype of the new device before offering to sell it
in commercial quantities.3
The manufacturer took several months to develop the customized
tooling necessary to produce the device, and Pfaff did not fill the
order until July 1981. The evidence therefore indicates that Pfaff
first reduced his invention to practice in the summer of 1981. The
socket achieved substantial com-
3 At his deposition, respondent's counsel engaged in the
following colloquy with Pfaff:
"Q. Now, at this time [late 1980 or early 1981] did we [sic]
have any
prototypes developed or anything of that nature, working
embodiment?
"A. No.
"Q. It was in a drawing. Is that correct?
"A. Strictly in a drawing. Went from the drawing to the hard
tooling.
That's the way I do my business.
"Q. 'Boom-boom'? "A. You got it.
"Q. You are satisfied, obviously, when you come up with some
drawings that it is going to go-'it works'?
"A. I know what I'm doing, yes, most of the time."
App.96-97.
59
mercial success before Patent No. 4,491,377 ('377 patent) issued
to Pfaff on January 1, 1985.4
After the patent issued, petitioner brought an infringement
action against respondent, Wells Electronics, Inc., the
manufacturer of a competing socket. Wells prevailed on the basis of
a finding of no infringement.5 When respondent began to market a
modified device, petitioner brought this suit, alleging that the
modifications infringed six of the claims in the '377 patent.
After a full evidentiary hearing before a Special Master,6 the
District Court held that two of those claims (1 and 6) were invalid
because they had been anticipated in the prior art. Nevertheless,
the court concluded that four other claims (7, 10, 11, and 19) were
valid and three (7, 10, and 11) were infringed by various models of
respondent's sockets. App. to Pet. for Cert. 21a-22a. Adopting the
Special Master's findings, the District Court rejected respondent's
§ 102(b) defense because Pfaff had filed the application for the
'377 patent less than a year after reducing the invention to
practice.
The Court of Appeals reversed, finding all six claims invalid.
124 F.3d
1429 (CA Fed. 1997). Four of the claims (1, 6,7, and 10)
described the socket that Pfaff had sold to Texas Instruments prior
to April 8, 1981. Because that device had been offered for sale on
a commercial basis more than one
4 Initial sales of the patented device were:
4 Initial sales of the patented device
were:
1981....................................................................................................
$ 350,000
1982....................................................................................................
$ 937,000
1983....................................................................................................
$2,800,000
1984....................................................................................................
$3,430,000
App. to Pet. for Cert. 223a.
5
Pfaffv. Wells Electronics, Inc., 9 USPQ 2d 1366 (ND
Ind. 1988). The court found that the Wells device did not literally
infringe on Pfaff's '377 patent based on the physical location of
the sockets' conductive pins.
6 Initially the District Court entered summary judgment in favor
of respondent, but the Court of Appeals reversed and remanded for
trial because issues of fact were in dispute. See
5 F.3d
514 (CA Fed. 1993).
60
year before the patent application was filed on April 19, 1982,
the court concluded that those claims were invalid under § 102(b).
That conclusion rested on the court's view that as long as the
invention was "substantially complete at the time of sale," the
i-year period began to run, even though the invention had not yet
been reduced to practice.
Id., at 1434. The other two claims
(11 and 19) described a feature that had not been included in
Pfaff's initial design, but the Court of Appeals concluded as a
matter of law that the additional feature was not itself patentable
because it was an obvious addition to the prior art.7 Given the
court's § 102(b) holding, the prior art included Pfaff's first four
claims.
Because other courts have held or assumed that an invention
cannot be "on sale" within the meaning of § 102(b) unless and until
it has been reduced to practice, see,
e. g., Timely Products
Corp. v.
Arron, 523 F.2d
288, 299-302
(CA2 1975); Dart Industries, Inc. v.
E. 1.
Du Pont de Nemours &
Co., 489 F. 2d
1359, 1365, n. 11 (CA7 1973), cert. denied, 417 U. s. 933 (1974),
and because the text of § 102(b) makes no reference to "substantial
completion" of an invention, we granted certiorari. 523 U. S. 1003
(1998).
II
The primary meaning of the word "invention" in the Patent Act
unquestionably refers to the inventor's conception rather than to a
physical embodiment of that idea. The statute does not contain any
express requirement that an invention must be reduced to practice
before it can be patented.
7 Title 35 U. S. C. § 103 provides: "A patent may not be
obtained though the invention is not identically disclosed or
described ... if the differences between the subject matter sought
to be patented and the prior art are such that the subject matter
as a whole would have been obvious at the time the invention was
made to a person having ordinary skill in the art to which said
subject matter pertains."
61
N either the statutory definition of the term in § 1008 nor the
basic conditions for obtaining a patent set forth in § 1019 make
any mention of "reduction to practice." The statute's only specific
reference to that term is found in § 102(g), which sets forth the
standard for resolving priority contests between two competing
claimants to a patent. That subsection provides:
"In determining priority of invention there shall be considered
not only the respective dates of conception and reduction to
practice of the invention, but also the reasonable diligence of one
who was first to conceive and last to reduce to practice, from a
time prior to conception by the other."
Thus, assuming diligence on the part of the applicant, it is
normally the first inventor to conceive, rather than the first to
reduce to practice, who establishes the right to the patent.
It is well settled that an invention may be patented before it
is reduced to practice. In 1888, this Court upheld a patent issued
to Alexander Graham Bell even though he had filed his application
before constructing a working telephone. Chief Justice Waite's
reasoning in that case merits quoting at length:
"It is quite true that when Bell applied for his patent he had
never actually transmitted telegraphically spoken words so that
they could be distinctly heard and understood at the receiving end
of his line, but in his specification he did describe accurately
and with admirable clearness his process, that is to say, the
exact
8Title 35 U. S. C. § 100, "Definitions," states:
"When used in this title unless the context otherwise
indicates"(a) The term 'invention' means invention or discovery
.... "
9 Section 101, "Inventions patentable," provides: "Whoever
invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful
improvement thereof, may obtain a patent therefor, subject to the
conditions and requirements of this title."
62
electrical condition that must be created to accomplish his
purpose, and he also described, with sufficient precision to enable
one of ordinary skill in such matters to make it, a form of
apparatus which, if used in the way pointed out, would produce the
required effect, receive the words, and carry them to and deliver
them at the appointed place. The particular instrument which he
had, and which he used in his experiments, did not, under the
circumstances in which it was tried, reproduce the words spoken, so
that they could be clearly understood, but the proof is abundant
and of the most convincing character, that other instruments,
carefully constructed and made exactly in accordance with the
specification, without any additions whatever, have operated and
will operate successfully. A good mechanic of proper skill in
matters of the kind can take the patent and, by following the
specification strictly, can, without more, construct an apparatus
which, when used in the way pointed out, will do all that it is
claimed the method or process will do ....
"The law does not require that a discoverer or inventor, in
order to get a patent for a process, must have succeeded in
bringing his art to the highest degree of perfection. It is enough
if he describes his method with sufficient clearness and precision
to enable those skilled in the matter to understand what the
process is, and if he points out some practicable way of putting it
into operation." The Telephone Cases, 126 U. S. 1, 535-536
(1888).10
When we apply the reasoning of
The Telephone Cases to the
facts of the case before us today, it is evident that Pfaff
10 This Court has also held a patent invalid because the
invention had previously been disclosed in a prior patent
application, although that application did not claim the invention
and the first invention apparently had not been reduced to
practice.
Alexander Milburn Co. v.
DavisBournonville
Co., 270 U. S.
390, 401-402 (1926).
63
could have obtained a patent on his novel socket when he
accepted the purchase order from Texas Instruments for 30,100
units. At that time he provided the manufacturer with a description
and drawings that had "sufficient clearness and precision to enable
those skilled in the matter" to produce the device.
Id., at
536. The parties agree that the sockets manufactured to fill that
order embody Pfaff's conception as set forth in claims 1, 6, 7, and
10 of the '377 patent. We can find no basis in the text of § 102(b)
or in the facts of this case for concluding that Pfaff's invention
was not "on sale" within the meaning of the statute until after it
had been reduced to practice.
III
Pfaff nevertheless argues that longstanding precedent,
buttressed by the strong interest in providing inventors with a
clear standard identifying the onset of the i-year period,
justifies a special interpretation of the word "invention" as used
in § 102(b). We are persuaded that this nontextual argument should
be rejected.
As we have often explained, most recently in
Bonito Boats,
Inc. v.
Thunder Craft Boats, Inc., 489 U. S. 141, 151
(1989), the patent system represents a carefully crafted bargain
that encourages both the creation and the public disclosure of new
and useful advances in technology, in return for an exclusive
monopoly for a limited period of time. The balance between the
interest in motivating innovation and enlightenment by rewarding
invention with patent protection on the one hand, and the interest
in avoiding monopolies that unnecessarily stifle competition on the
other, has been a feature of the federal patent laws since their
inception. As this Court explained in 1871:
"Letters patent are not to be regarded as monopolies ... but as
public franchises granted to the inventors of new and useful
improvements for the purpose of securing to them, as such
inventors, for the limited term therein
64
mentioned, the exclusive right and liberty to make and use and
vend to others to be used their own inventions, as tending to
promote the progress of science and the useful arts, and as matter
of compensation to the inventors for their labor, toil, and expense
in making the inventions, and reducing the same to practice for the
public benefit, as contemplated by the Constitution and sanctioned
by the laws of Congress." Seymour v. Osborne, 11
Wall. 516, 533-534.
Consistent with these ends, § 102 of the Patent Act serves as a
limiting provision, both excluding ideas that are in the public
domain from patent protection and confining the duration of the
monopoly to the statutory term. See,
e. g.,
Frantz Mfg.
Co. v.
Phenix Mfg. Co., 457 F.2d
314, 320
(CA7 1972).
We originally held that an inventor loses his right to a patent
if he puts his invention into public use before filing a patent
application. "His voluntary act or acquiescence in the public sale
and use is an abandonment of his right."
Pennock v.
Dialogue, 2 Pet. 1, 24 (1829) (Story, J.). A similar
reluctance to allow an inventor to remove existing knowledge from
public use undergirds the on-sale bar.
Nevertheless, an inventor who seeks to perfect his discovery may
conduct extensive testing without losing his right to obtain a
patent for his invention-even if such testing occurs in the public
eye. The law has long recognized the distinction between inventions
put to experimental use and products sold commercially. In 1878, we
explained why patentability may turn on an inventor's use of his
product.
"It is sometimes said that an inventor acquires an undue
advantage over the public by delaying to take out a patent,
inasmuch as he thereby preserves the monopoly to himself for a
longer period than is allowed by the policy of the law; but this
cannot be said with justice when the
65
delay is occasioned by a bona fide effort to bring his
invention to perfection, or to ascertain whether it will answer the
purpose intended. His monopoly only continues for the allotted
period, in any event; and it is the interest of the public, as well
as himself, that the invention should be perfect and properly
tested, before a patent is granted for it. Any attempt to use it
for a profit, and not by way of experiment, for a longer period
than two years before the application, would deprive the inventor
of his right to a patent." Elizabeth v. Pavement Co.,
97 U. S. 126, 137
(emphasis added).
The patent laws therefore seek both to protect the public's
right to retain knowledge already in the public domain and the
inventor's right to control whether and when he may patent his
invention. The Patent Act of 1836, 5 Stat. 117, was the first
statute that expressly included an on-sale bar to the issuance of a
patent. Like the earlier holding in
Pennock, that provision
precluded patentability if the invention had been placed on sale at
any time before the patent application was filed. In 1839, Congress
ameliorated that requirement by enacting a 2-year grace period in
which the inventor could file an application. 5 Stat. 353.
In
Andrews v.
Hovey, 123 U. S. 267, 274
(1887), we noted that the purpose of that amendment was "to fix a
period of limitation which should be certain"; it required the
inventor to make sure that a patent application was filed "within
two years from the completion of his invention,"
ibid. In
1939, Congress reduced the grace period from two years to one year.
53 Stat. 1212.
Petitioner correctly argues that these provisions identify an
interest in providing inventors with a definite standard for
determining when a patent application must be filed. A rule that
makes the timeliness of an application depend on the date when an
invention is "substantially complete" se-
66
riously undermines the interest in certainty.ll Moreover, such a
rule finds no support in the text of the statute. Thus,
petitioner's argument calls into question the standard applied by
the Court of Appeals, but it does not persuade us that it is
necessary to engraft a reduction to practice element into the
meaning of the term "invention" as used in § l02(b).
The word "invention" must refer to a concept that is complete,
rather than merely one that is "substantially complete." It is true
that reduction to practice ordinarily provides the best evidence
that an invention is complete. But just because reduction to
practice is sufficient evidence of completion, it does not follow
that proof of reduction to practice is necessary in every case.
Indeed, both the facts of
The Telephone Cases and the facts
of this case demonstrate that one can prove that an invention is
complete and ready for patenting before it has actually been
reduced to practice.12
11 The Federal Circuit has developed a multifactor, "totality of
the circumstances" test to determine the trigger for the on-sale
bar. See,
e. g.,
Micro Chemical, Inc. v.
Great
Plains Chemical Co., 103 F.3d
1538, 1544 (1997) (stating that, in determining whether an
invention is on sale for purposes of § 102(b), "'all of the
circumstances surrounding the sale or offer to sell, including the
stage of development of the invention and the nature of the
invention, must be considered and weighed against the policies
underlying section 102(b)' "); see also
UMC Electronics Co.
v.
United States, 816 F.2d
647, 656 (1987) (stating the on-sale bar "does not lend itself
to formulation into a set of precise requirements"). As the Federal
Circuit itself has noted, this test "has been criticized as
unnecessarily vague."
Seal-Flex, Inc. v.
Athletic
Track &
Court Construction, 98
F.3d 1318, 1323, n. 2 (1996).
12 Several of this Court's early decisions stating that an
invention is not complete until it has been reduced to practice are
best understood as indicating that the invention's reduction to
practice demonstrated that the concept was no longer in an
experimental phase. See,
e. g.,
Seymour v.
Osborne, 11 Wall. 516, 552 (1871) ("Crude and imperfect
experiments are not sufficient to confer a right to a patent; but
in order to constitute an invention, the party must have proceeded
so far as to have reduced his idea to practice, and embodied it in
some distinct form");
Clark Thread
67
We conclude, therefore, that the on-sale bar applies when two
conditions are satisfied before the critical date.
First, the product must be the subject of a commercial offer for
sale. An inventor can both understand and control the timing of the
first commercial marketing of his invention. The experimental use
doctrine, for example, has not generated concerns about
indefiniteness,13 and we perceive no reason why unmanageable
uncertainty should attend a rule that measures the application of
the on-sale bar of § 102(b) against the date when an invention that
is ready for patenting is first marketed commercially. In this case
the acceptance of the purchase order prior to April 8, 1981, makes
it clear that such an offer had been made, and there is no question
that the sale was commercial rather than experimental in
character.
Second, the invention must be ready for patenting. That
condition may be satisfied in at least two ways: by proof of
reduction to practice before the critical date; or by proof that
prior to the critical date the inventor had prepared drawings or
other descriptions of the invention that were sufficiently specific
to enable a person skilled in the art to
Co. v.
Willimantic Linen Co., 140 U. S. 481, 489 (1891)
(describing how inventor continued to alter his thread winding
machine until July 1858, when "he put it in visible form in the
shape of a machine .... It is evident that the invention was not
completed until the construction of the machine");
Corona Cord
Tire Co. v.
Dovan Chemical Corp., 276 U. S., at 382-383
(stating that an invention did not need to be subsequently
commercialized to constitute prior art after the inventor had
finished his experimentation. "It was the fact that it would work
with great activity as an accelerator that was the discovery, and
that was all, and the necessary reduction to use is shown by
instances making clear that it did so work, and was a completed
discovery").
13 See,
e. g., Rooklidge & Jensen, Common Sense,
Simplicity and Experimental U se Negation of the Public Use and On
Sale Bars to Patentability, 29 John Marshall L. Rev. 1, 29 (1995)
(stating that "whether a particular activity is experimental is
often clear").
68
practice the invention.14 In this case the second condition of
the on-sale bar is satisfied because the drawings Pfaff sent to the
manufacturer before the critical date fully disclosed the
invention.
The evidence in this case thus fulfills the two essential
conditions of the on-sale bar. As succinctly stated by Learned
Hand:
"[I]t is a condition upon an inventor's right to a patent that
he shall not exploit his discovery competitively after it is ready
for patenting; he must content himself with either secrecy, or
legal monopoly." Metallizing Engineering Co. v. Kenyon
Bearing & Auto Parts Co., 153 F.2d 516, 520 (CA2
1946).
The judgment of the Court of Appeals finds support not only in
the text of the statute but also in the basic policies underlying
the statutory scheme, including § 102(b). When Pfaff accepted the
purchase order for his new sockets prior to April 8, 1981, his
invention was ready for patenting. The fact that the manufacturer
was able to produce the socket using his detailed drawings and
specifications demonstrates this fact. Furthermore, those sockets
contained all the elements of the invention claimed in the '377
patent. Therefore, Pfaff's '377 patent is invalid because the
invention had
14 The Solicitor General has argued that the rule governing the
on-sale bar should be phrased somewhat differently. In his opinion,
"if the sale or offer in question embodies the invention for which
a patent is later sought, a sale or offer to sell that is primarily
for commercial purposes and that occurs more than one year before
the application renders the invention unpatentable.
Seal-Flex,
Inc. v.
Athletic Track and Court Constr., 98 F.3d
1318, 1325 (Fed. Cir. 1996) (Bryson, J., concurring in part and
concurring in the result)." Brieffor United States as
Amicus
Curiae 10-11 (internal quotation marks omitted). It is true
that evidence satisfying this test might be sufficient to prove
that the invention was ready for patenting at the time of the sale
if it is clear that no aspect of the invention was developed after
the critical date. However, the possibility of additional
development after the offer for sale in these circumstances
counsels against adoption of the rule proposed by the Solicitor
General.
69
been on sale for more than one year in this country before he
filed his patent application. Accordingly, the judgment of the
Court of Appeals is affirmed.
It is so ordered.
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