Ex Parte Duche

Board of Patent Appeals and Interferences

May 27, 2009

10129816 (B.P.A.I. May. 27, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte RENAUD DUCHE
____________

Appeal 2008-005016
Application 10/129,816
Technology Center 3700
____________

Decided:1 May 27, 2009
____________

Before JENNIFER D. BAHR, STEVEN D.A. McCARTHY, and MICHAEL
W. O’NEILL, Administrative Patent Judges.

O’NEILL, Administrative Patent Judge.

DECISION ON APPEAL

1 The two month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304 (2008), begins to run from the
Decided Date shown on this page of the decision. The time period does not
run from the Mail Date (paper delivery) or the Notification Date (electronic
delivery).

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STATEMENT OF THE CASE
Renaud Duche (Appellant) seeks our review under 35 U.S.C. § 134 of
the final rejection of claims 1, 3, 4, 16, and 22-33. Claims 2, 5-15, and 17-
21 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b) (2002).

SUMMARY OF DECISION
We AFFIRM-IN-PART.

THE INVENTION
The claimed invention is to a device for protecting nerves after a
surgical procedure. Spec. 1:1-2.
Claims 1 and 16, reproduced below, are representative of the subject
matter on appeal.
1. A device for protecting nerves and/or tendons
located in a tunnel zone of the human body which is
normally closed by a ligament and has been opened
during a surgical procedure, said device comprises
means for permitting freedom of movement of
nerves and/or tendons while protecting nerves and/or
tendons, which is intended to be inserted between edges
of a ligament after cutting; and
means for anchoring said means for permitting
freedom of movement while protecting.

16. A device for protecting nerves and/or tendons
located in a tunnel zone of the human body which is
normally closed by a ligament and has been opened
during a surgical procedure, said device comprises:
at least one rigid or semi-rigid continuous plate
which is intended to be inserted between edges of a
ligament after cutting and, one external face of said plate
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comprises a sliding surface and another external face of
said plate comprises an adhering surface,
wherein said sliding surface comprises a
biocompatible material, and
wherein said adhering surface comprises a
biocompatible material in the form of a fibular lattice.

THE PRIOR ART
The Examiner relies upon the following as evidence of
unpatentability:
de Medinaceli US 5,122,151 Jun. 16, 1992
Lichtenstein US 5,593,441 Jan. 14, 1997
Törmälä US 6,350,284 B1 Feb. 26, 2002

THE REJECTIONS
The following Examiner’s rejections are before us for review:
Claim 1 is rejected under 35 U.S.C. § 102(b) as being anticipated by
de Medinaceli.
Claims 16, 25, 26, and 29 are rejected under 35 U.S.C. § 102(b) as
being anticipated by Törmälä.
Claims 16 and 33 are rejected under 35 U.S.C. § 102(b) as being
anticipated by Lichtenstein.
Claims 3 and 4 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over de Medinaceli.
Claims 22-24, 27, 28, and 30-32 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Törmälä.
The Appellant argues the § 102(b) rejection of claims 16, 25, 26, and
29 as a group. We select claim 16 as representative of the group and claims
25, 26, and 29 will stand or fall with claim 16. The Appellant argues the
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§ 102(b) rejection of claims 16 and 33 as a group. We likewise select claim
16 as representative of the group and claim 33 will stand or fall with claim
16.

ISSUES
Issue (1)
The Appellant contends that the Examiner erred in rejecting claim 1
because the Examiner improperly construed the claim’s means plus function
limitation of permitting freedom of movement of the nerves and/or tendons
while protecting the nerves and/or tendons. As such, according to the
Appellant, when the claim is properly construed, de Medinaceli’s structures
relied upon by the Examiner do not satisfy this means plus function
limitation. App. Br. 4-9.
The Examiner found that de Medinaceli’s template means 20 or
connector means 40 could satisfy the means plus function of permitting
freedom of movement of the nerves and/or tendons while protecting the
nerves and/or tendons. Ans. 7.
For this rejection, the issue before us is:
Has the Appellant demonstrated error in the Examiner’s claim
construction and in the Examiner’s finding that de Medinaceli’s template
means 20 or connector means 40 satisfies the means plus function limitation
recited in claim 1 that is at issue, viz., “means for permitting freedom of
movement of nerves and/or tendons while protecting nerves and/or
tendons”?
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Issue (2)
The Appellant contends that the Examiner erred in rejecting claim 16
because Törmälä could not be used in the manner recited in the preamble.
App. Br. 9-10.
The Examiner finds that Törmälä possesses the claimed structural
features, viz., a plate with a sliding surface and an adhering surface, and that
the preamble does not differentiate the claimed apparatus from Törmälä’s
plate. Ans. 8.
For this rejection, the issue before us is:
Has the Appellant shown that the Examiner erred in finding that the
preamble has no significance to the claim construction of claim 16?
Issue (3)
The Appellant contends that the Examiner erred in rejecting claim 16
with Lichtenstein because Lichtenstein does not disclose at least a semi-rigid
plate and Lichtenstein could not be used in the manner recited in the
preamble. App. Br. 11-13.
The Examiner finds that Lichtenstein does describe a semi-rigid plate
when that limitation is given its broadest reasonable interpretation in light of
the Appellant’s Specification. Further, the Examiner maintains the position
that the preamble does not differentiate the claimed apparatus from the prior
art apparatus, viz., the composite prosthesis. Ans. 9.
For this rejection, the issue before us is:
Has the Appellant shown that the Examiner erred in finding, when
“semi-rigid plate” is appropriately interpreted in light of the Appellant’s
Specification, that Lichtenstein’s composite prosthesis satisfies the claimed
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semi-rigid plate limitation, and further, that the preamble has no significance
to the claim construction of claim 16?
Issue (4)
The Appellant contends that the Examiner erred in concluding that
Törmälä renders obvious a device having the claimed features recited in
claims 22-24, 27, 28, and 30-32. App. Br. 15-17.
The Examiner found that the claimed features within these claims are
taught or suggested by Törmälä. Ans. 9-10.
For this rejection, the issue before us is:
Has the Appellant shown that the Examiner erred in finding that
Törmälä renders obvious an apparatus with the claimed features associated
with claims 22-24, 27, 28, and 30-32, respectively?

FINDINGS OF FACT
We find that the following enumerated findings of fact are supported
by at least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849
F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary
standard for proceedings before the Office).
1. The Appellant’s Specification defines a sliding surface as a surface
“without any roughening or bumps, and with a low coefficient of
friction, so as not to prevent the movement of the nerve and tendons
relative to said plate.” Spec. 2:26-29. The Appellant’s Specification
defines an adhering surface as “meaning a surface which has a texture
and/or a roughness, in particular a porosity, such as to promote the
regrowth of biological tissues, in particular of the sectioned ligaments,
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by attachment of fibroblasts which are able to recolonize said
surface.” Spec. 2:30 to 3:2.
2. Claim 1 recites “means for permitting freedom of movement of nerves
and/or tendons while protecting nerves and/or tendons.”2
3. Nerves, as recited in claim 1, is plural of the singular nerve.
4. The preamble of claim 16 is as follows: “A device for protecting
nerves and/or tendons located in a tunnel zone of the human body
which is normally closed by a ligament and has been opened during a
surgical procedure, said device comprises.” App. Br., Claims
Appendix.
5. The body of claim 16 is as follows:
at least one rigid or semi-rigid continuous plate
which is intended to be inserted between edges of
a ligament after cutting and, one external face of
said plate comprises a sliding surface and another
external face of said plate comprises an adhering
surface, wherein said sliding surface comprises a
biocompatible material, and wherein said adhering
surface comprises a biocompatible material in the
form of a fibular lattice.
App. Br., Claims Appendix.
6. The Appellant’s Specification defines the expression “semi-rigid
plate” as follows:
The expression “semi[-]rigid plate” is to be
understood as meaning that this plate is capable of
maintaining a tile shape in particular, when it has

2 While we are cognizant that the claimed invention permits freedom of
movement of nerves and/or tendons while protecting nerves and/or tendons,
for the sake of brevity, since the de Medinaceli application is only to
mending nerves, we will just reference the claimed invention’s function of
permitting freedom of movement of nerves while protecting the nerves.
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been produced in particular by molding in the case
where the plate is made of synthetic material.
However, it must be understood that the plate can
have a certain elasticity, that is to say it can
undergo deformation, particularly at the time of its
implantation, and then return to its initial shape.
Spec. 2:18-25.
7. de Medinaceli discloses template means 20 is used to position the
nerve stumps via both the measuring guidelines 30 and the nerve
positioning means 26. de Medinaceli, col. 4, l. 27-43.
8. de Medinaceli discloses that the nerve stumps are secured to the
connector means 40 in order to reunite the stumps. de Medinaceli,
col. 5, ll. 6-16 and 57-63.
9. Törmälä describes a plate 1 with a rigid surface 2 and a web surface 3.
Törmälä, col. 3, ll. 5-7.
10. Törmälä describes layer 2 is smooth to avoid tissue irritation.
Törmälä, col. 3, ll. 13-15.
11. An ordinary and customary meaning of “smooth” is to cause no
resistance to sliding. WEBSTER’S NINTH NEW COLLEGIATE
DICTIONARY 1114 (1987).
12. Törmälä describes web 3 as a porous surface to permit bone tissue to
grow and spread. Törmälä, col. 3, ll. 36-38.
13. Lichtenstein describes a composite prosthesis having a fabric 12 and
a barrier 14. Lichtenstein, col. 3, ll. 7-9. Lichtenstein describes this
barrier as having a low adhesion incidence. Lichtenstein, col. 3, ll.
19-21.
14. Lichtenstein describes the composite prosthesis is manipulable and
can be pre-formed. Lichtenstein, col. 3, ll. 22-32.
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15. Lichtenstein describes that the purpose of the fabric is to permit
tissue infiltration. Lichtenstein, Abstract.

PRINCIPLES OF LAW
“Both anticipation under § 102 and obviousness under § 103 are two-
step inquiries. The first step in both analyses is a proper construction of the
claims. . . . The second step in the analyses requires a comparison of the
properly construed claim to the prior art.” Medichem, S.A. v. Rolabo, S.L.,
353 F.3d 928, 933 (Fed. Cir. 2003) (internal citations omitted).
“[T]he ‘broadest reasonable interpretation’ that an examiner may give
means-plus-function language is that statutorily mandated in paragraph six.”
In re Donaldson, 16 F.3d 1189, 1194-95 (Fed. Cir. 1994) (en banc). In other
words, in order to meet a “means plus function” limitation, the prior art must
(1) perform the identical function recited in the means limitation and (2)
perform that function using the structure disclosed in the specification or an
equivalent structure. Cf. Carroll Touch Inc. v. Electro Mechanical Sys. Inc.,
15 F.3d 1573, 1578 (Fed. Cir. 1994); Valmont Indus. Inc. v. Reinke Mfg.
Co., 983 F.2d 1039, 1042 (Fed. Cir. 1993); Johnston v. IVAC Corp., 885
F.2d 1574, 1580 (Fed. Cir. 1989).
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros, Inc.. v. Union Oil Co. of Cal., 814 F.2d 628,
631 (Fed. Cir. 1987). To establish anticipation, every element and limitation
of the claimed invention must be found in a single prior art reference,
arranged as in the claim. Karsten Mfg. Corp. v. Cleveland Golf Co., 242
F.3d 1376, 1383 (Fed. Cir. 2001). In other words, “[t]here must be no
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difference between the claimed invention and the reference disclosure, as
viewed by a person of ordinary skill in the field of the invention.” Scripps
Clinic & Research Found. v. Genentech, Inc., 927 F.2d 1565, 1576 (Fed.
Cir. 1991). It is not necessary that the reference teach what the subject
application teaches, however, but only that the claim read on something
disclosed in the reference, i.e., that all of the limitations in the claim be
found in, or fully met by, the reference. Kalman v. Kimberly-Clark Corp.,
713 F.2d 760, 772 (Fed. Cir. 1983). “Inherent anticipation requires that the
missing descriptive material is ‘necessarily present,’ not merely probably or
possibly present, in the prior art.” Trintec Indus., Inc. v. Top-U.S.A. Corp.,
295 F.3d 1292, 1295 (Fed. Cir. 2002) (quoting In re Robertson, 169 F.3d
743, 745 (Fed. Cir. 1999)).
If … the body of the claim fully and
intrinsically sets forth the complete invention,
including all of its limitations, and the preamble
offers no distinct definition of any of the claimed
invention’s limitations, but rather merely states, for
example, the purpose or intended use of the
invention, then the preamble is of no significance
to claim construction because it cannot be said to
constitute or explain a claim limitation.

Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305 (Fed. Cir.
1999) (citations omitted). The reasoning behind this principle is that “[i]t is
well settled that the recitation of a new intended use for an old product does
not make a claim to that old product patentable.” In re Schreiber, 128 F.3d
1473, 1477 (Fed. Cir. 1997) (citations omitted).
“Section 103 forbids issuance of a patent when ‘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
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invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art, (3)
the level of skill in the art, and (4) where in evidence, so-called secondary
considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). See
also KSR, 550 U.S. at 406 (“While the sequence of these questions might be
reordered in any particular case, the [Graham] factors continue to define the
inquiry that controls.”) “[R]ejections on obviousness grounds cannot be
sustained by mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006),
cited with approval in KSR, 550 U.S. at 418.

ANALYSIS
Issue (1)
Claim 1 is to a device for protecting nerves located in a tunnel zone
within the human body, and recites as one limitation for this device, the
means for permitting freedom of movement of nerves while protecting the
nerves. Fact 2. Within this means plus function limitation, the term
“nerves” is used, and “nerves” is the plural of “nerve.” Fact 3. Therefore,
any structure used to anticipate this function must permit freedom of
movement of nerves and/or tendons (not just a single nerve) while protecting
nerves and/or tendons.
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de Medinaceli’s template means 20 positions the nerve stumps in
order for a surgeon to affix the severed nerve endings to the connector
means 40. Facts 7 and 8. de Medinaceli only connects together the nerve
stumps of a single nerve, not plural nerves. As such, neither structure that
the Examiner has found to satisfy the claimed means plus function limitation
of permitting freedom of movement of the nerves, while protecting the
nerves, performs this function, because both structures function on a single
nerve, and not on plural nerves as the claim requires. Moreover, the
Examiner has not cogently explained how the two structures (template 20 or
connector 40) that the Examiner has used to anticipate the means plus
function limitation are even capable of performing the means plus function
limitation.
In view of the foregoing, the Appellant has shown that the Examiner
erred in construing the claimed means plus function, and in finding that de
Medinaceli’s structure performs the claimed function of permitting freedom
of movement of nerves while protecting the nerves. Accordingly, we will
not sustain the Examiner’s rejection of claim 1 as anticipated by de
Medinaceli. Nor can we sustain the Examiner’s rejection of claims 3 and 4
as being obvious in view of de Medinaceli alone, because the Examiner has
not articulated how de Medinaceli’s structure could be modified to work
with more than one nerve at a time.
Issue (2)
The preamble of claim 16 recites a device for protecting nerves and/or
tendons located within a tunnel zone of the human body during a surgical
procedure. Fact 4. The body of claim 16 recites a plate having two surfaces,
one sliding and the other adhering, made of biocompatible materials. Fact 5.
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In comparing the preamble to the claim body, the preamble offers no distinct
definition of any limitations within the claim body, while at the same time,
the claim body itself fully and intrinsically sets forth a complete invention of
a plate having two surfaces with certain properties and made from certain
materials. Accordingly, when interpreting claim 16, and comparing the
properly interpreted claim to the prior art, the preamble is of no significance
to the claim construction of claim 16. So long as the prior art structure is
capable of the use set forth in the preamble, it satisfies the claim.
Once the examiner establishes a reasonable basis that the product is
inherently capable of the claimed use, the burden shifts to the applicant to
show that the prior art structure does not inherently possess the functionally
claimed limitations of the claimed product. Schreiber, 128 F.3d at 1478.
The Examiner made a finding that Törmälä’s apparatus is capable of the
recited use. Ans. 4. As discussed in more detail below, the Examiner found
that Törmälä’s apparatus possesses the claimed structural features, which are
capable of performing the functions claimed. Ans. 8. Although the
Appellant has pointed out that Törmälä’s device is not disclosed for such use
(App. Br. 10), the Appellant has not shown, or cogently explained, why the
structure is not capable of such use.
Claim 16 recites as part of the invention at least a semi-rigid plate
having a sliding surface and an adhering surface, wherein both surfaces are
made from biocompatible material, and the adhering surface is formed from
a fibular lattice. See Fact 5. The Appellant’s Specification defines a sliding
surface as one without any roughness or bumps, and with a low coefficient
of friction, and defines an adhering surface as a surface with texture and/or
roughness, in particular porosity, to permit tissue regrowth. Fact 1. Törmälä
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describes a plate with a rigid surface and a web surface, wherein the rigid
surface is smooth to avoid tissue irritation, and the web surface is porous to
permit bone tissue to grow and spread. Facts 9, 10, and 12. A smooth
surface causes no resistance to sliding. Fact 11. As such, a smooth surface
is also a sliding surface. Thus, Törmälä’s smooth surface disclosure satisfies
the claimed sliding surface. Both the claimed adhering surface and
Törmälä’s web surface are porous. Thus, Törmälä’s web surface satisfies
the claimed adhering surface because both are porous. As such, Törmälä’s
plate satisfies the claim limitations within claim 16.
In view of the foregoing, the Appellant has not shown that the
Examiner erred in rejecting claim 16 as anticipated by Törmälä. We will
sustain the Examiner’s rejection of claims 16, 25, 26, and 29 as anticipated
by Törmälä.
Issue (3)
The Appellant’s Specification has defined the term “semi-rigid plate”
as being capable of maintaining a particular shape, and yet having a certain
elasticity enabling it to be capable of undergoing deformation and then
return to the particular shape. Fact 6. As such, when claim 16 is construed
in light of the Appellant’s Specification, the “semi-rigid plate” is construed
to be a plate capable of maintaining a shape and having a degree of elasticity
enabling it to undergo deformation and return to its original shape.
Lichtenstein describes its composite prosthesis as being manipulable
and pre-formed. Fact 14. As such, Lichtenstein’s composite prosthesis has
a particular shape (pre-formed) and has a certain elasticity (manipulable).
Accordingly, Lichtenstein’s composite prosthesis is a semi-rigid plate as the
term would be interpreted by a person having ordinary skill in the art in light
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of the Appellant’s Specification. Moreover, Lichtenstein describes the
prosthesis as having a fabric surface and a barrier surface. Fact 13. The
barrier surface has a low adhesion. Fact 13. Thus, the barrier surface
satisfies the claimed sliding surface of the plate. The fabric is adhesive-in-
nature because its purpose is tissue infiltration. Fact 15. Thus, the fabric
surface satisfies the claimed adhering surface of the plate. Therefore,
Lichtenstein’s composite prosthesis satisfies the claimed semi-rigid plate
limitation as it would be interpreted by a person having ordinary skill in the
art when read in light of the Appellant’s Specification.
In view of the foregoing, the Appellant has not shown that the
Examiner erred in rejecting claim 16 as anticipated by Lichtenstein. As
such, we will sustain the rejection of claims 16 and 33 as anticipated by
Lichtenstein.
Issue (4)
The Appellant has argued the obviousness rejections of claims 22-24,
27, 28, and 30-32 as being unpatentable over Törmälä separately. Based on
our review of the record, we conclude the following for each claim rejected
as being obvious in view of Törmälä.
The Appellant has not shown that the Examiner erred in concluding
that claims 23, 24, 27, and 28 are obvious in view of Törmälä. These claims
are directed to the dimensions of the plate as these dimensions would
correspond to the opening within the surgical site that is to be covered by the
plate. A person having ordinary skill in the art could readily adapt Törmälä
to the necessary dimensions to permit proper bone growth and protection of
soft tissue around and underneath the plate. “A person of ordinary skill is
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also a person of ordinary creativity, not an automaton.” KSR, 550 U.S. at
421.
Nor has the Appellant shown that the Examiner erred in concluding
claims 30-32 are obvious in view of Törmälä. “The law is replete with cases
in which the difference between the claimed invention and the prior art is
some range or other variable within the claims. [citations omitted] These
cases have consistently held that in such a situation, the applicant must show
that the particular range is critical, generally by showing that the claimed
range achieves unexpected results relative to the prior art range.” In re
Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990). The Appellant argues that
Törmälä does not recognize that roughness promotes tissue regrowth (App.
Br. 16). However, Törmälä does disclose its porous surface having an
optimum range of pore size promotes tissue regrowth, while the smooth
surface avoids irritation. While Törmälä does not express a roughness for
the smooth surface (plate 2), Törmälä does disclose a pore size range of 50
to 400 microns promotes bone growth and Appellant has not shown, or
cogently explained, why the particular claimed roughness range of less than
3.2 microns (for the sliding/smooth surface) and 50 to 600 microns (for the
adhering/porous surface) “achieves unexpected results relative to the prior
art range.” See Woodruff, 919 F.2d at 1578.
The Appellant has shown that the Examiner erred in concluding that
claim 22 is obvious in view of Törmälä. It is clear from Törmälä’s
placement of the implant over the cranium that a person having ordinary
skill in the art would not place the web layer (adhering surface) on the
convex surface and the rigid layer (sliding surface) on the concave surface.
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As such, we will sustain the rejections of claims 23, 24, 27, 28, and
30-32 and will not sustain the rejection of claim 22 with Törmälä alone.

CONCLUSIONS
The Appellant has demonstrated error in the Examiner’s claim
construction and in the Examiner’s finding that de Medinaceli’s template
means 20 or connector means 40 satisfies the means plus function limitation
of means for permitting freedom of movement of the nerves while protecting
the nerves, as recited in claim 1.
The Appellant has not shown that the Examiner erred in finding that
the preamble has no significance to the claim construction of claim 16.
The Appellant has not shown that the Examiner erred in finding, when
“semi-rigid plate” is appropriately interpreted in light of the Appellant’s
Specification, that Lichtenstein’s composite prosthesis satisfies the claimed
semi-rigid plate limitation, and further, that the preamble has no significance
to the claim construction of claim 16.
The Appellant has shown that the Examiner erred in finding that
Törmälä teaches or suggests the claimed features associated with claim 22,
and has not shown that the Examiner erred in finding that Törmälä renders
obvious an apparatus with the claimed features associated with claims 23,
24, 27, 28, and 30-32.

DECISION
The Examiner’s decision to reject claim 1 under 35 U.S.C. § 102(b) as
being anticipated by de Medinaceli is reversed.
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The Examiner’s decision to reject claims 16, 25, 26, and 29 under 35
U.S.C. § 102(b) as being anticipated by Törmälä is affirmed.
The Examiner’s decision to reject claims 16 and 33 under 35 U.S.C.
§ 102(b) as being anticipated by Lichtenstein is affirmed.
The Examiner’s decision to reject claims 3 and 4 under 35 U.S.C.
§ 103(a) as being unpatentable over de Medinaceli is reversed.
The Examiner’s decision to reject claims 22 under 35 U.S.C. § 103(a)
as being unpatentable over Törmälä is reversed.
The Examiner’s decision to reject claims 23, 24, 27, 28, and 30-32
under 35 U.S.C. § 103(a) as being unpatentable over Törmälä is affirmed.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2007).

AFFIRMED-IN-PART

mls

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