Ex Parte Hammad et al

Patent Trial and Appeal Board

Aug 22, 2018

12257987 (P.T.A.B. Aug. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/257,987 10/24/2008 Ayman Hammad
66945 7590 08/24/2018
KILPATRICK TOWNSEND & STOCKTONLLP/VISA
Mailstop: IP Docketing - 22
1100 Peachtree Street
Suite 2800
Atlanta, GA 30309
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
80083-742728(033860US) 8110
EXAMINER
NGUYEN, THUY N
ART UNIT PAPER NUMBER
3681
NOTIFICATION DATE DELIVERY MODE
08/24/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ipefiling@kilpatricktownsend.com
KTSDocketing2@kilpatrick.foundationip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte A YMAN HAMMAD and PA TRICK FAITH
Appeal2016-006615 1
Application 12/257,9872
Technology Center 3600
Before MURRIEL E. CRAWFORD, BRADLEY B. BAY AT, and
AMEE A. SHAH, Administrative Patent Judges.
BAY AT, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134 of the Examiner's
decision rejecting claims 11, 12, 16, 18, 25-27, and 41--49, which are all the
pending claims in the application. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 Our Decision references Appellants' Appeal Brief ("App. Br.," filed
Nov. 9, 2015) and Reply Brief ("Reply Br.," filed June 22, 2016), the
Examiner's Answer ("Ans.," mailed Apr. 22, 2016), and the Final Office
Action ("Final Act.," mailed May 7, 2015).
2 Appellants' Appeal Brief identifies "Visa International Service
Association" as the real party in interest. App. Br. 3.
Appeal2016-006615
Application 12/257,987
STATEMENT OF THE CASE
Claimed Subject Matter
Appellants' "disclosure is directed to a method of conducting a
transaction." Spec. ,r 5. Independent claim 11, reproduced below
with bracketed notations, is illustrative of the subject matter on appeal
and recites:
11. A method comprising:
[ ( 1)] receiving, by a server computer of a payment
processing network, transaction information including product
identifiers associated with products being purchased by a
consumer at a merchant in a transaction, and a total transaction
amount for the transaction, wherein the server computer is
communicatively coupled to an access device at the merchant
and to an issuer, and wherein the transaction information is
received from the access device at the merchant via an
acqmrer;
[(2)] sending, by the server computer, to benefit
providers associated with the products being purchased
requests for benefits for the products;
[(3)] receiving, by the server computer, from the benefit
providers, benefit information associated with the products;
[ ( 4)] determining, by the server computer, based on the
benefit information and the product identifiers for the
products, that the products are eligible for determined benefits;
[(5)] sending, by the server computer, to the access
device or a mobile communication device operated by the
consumer, the determined benefits;
[(6)] receiving, by the server computer, from the access
device or the mobile communication device, a selection of one
or more of the determined benefits;
[(7)] updating the transaction information by applying the
selection of the one or more determined benefits to provide an
updated transaction amount for the transaction;
[(8)] sending an authorization request message with the
updated transaction amount for the transaction to the issuer;
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[(9)] receiving an authorization response message from
the issuer; and
[ ( 10)] sending the authorization response message to the
merchant via the acquirer.
App. Br. 20 (Claims App.).
Rejections
Claims 11, 12, 16, 18, 25-27, and 41--49 stand rejected under
35 U.S.C. § 101 as directed to non-statutory subject matter.
Claims 11, 12, 17, 18, 25-27, 41, 42, and 44--47 stand rejected under
35 U.S.C. § I03(a) as being unpatentable over White (US 2008/0133351 Al,
iss. June 5, 2008), Walker (US 7,856,379 B2, pub. Dec. 21, 2010), Keith
(US 2007/0174116 Al, iss. July 26, 2007), and Official Notice.
Claims 16 and 43 stand rejected under 35 U.S.C. § I03(a) as being
unpatentable over White, Walker, Keith, Official Notice, and Crites
(US 2006/0229981 Al, pub. Oct. 12, 2006).
Claims 48 and 49 stand rejected under 35 U.S.C. § I03(a) as being
unpatentable over White, Walker, Keith, Official Notice, and Ullman
(US 2002/0002495 Al, pub. Jan. 3, 2002).
ANALYSIS
Non-Statutory Subject Matter
Under 35 U.S.C. § 101, an invention is patent-eligible if it claims a
"new and useful process, machine, manufacture, or composition of matter."
35 U.S.C. § 101. The Supreme Court, however, has long interpreted§ 101
to include an implicit exception: "[l]aws of nature, natural phenomena, and
abstract ideas" are not patentable. See, e.g., Alice Corp. Pty. Ltd. v. CLS
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Bank Int'!, 134 S. Ct. 2347, 2354 (2014) (internal quotation marks and
citation omitted).
The Supreme Court, in Alice, reiterated the two-step framework
previously set forth in Mayo Collaborative Services v. Prometheus
Laboratories, Incorporated, 566 U.S. 66, 82-84 (2012), "for distinguishing
patents that claim laws of nature, natural phenomena, and abstract ideas
from those that claim patent-eligible applications of those concepts." Alice,
134 S. Ct. at 2355. The first step in that analysis is to "determine whether
the claims at issue are directed to one of those patent-ineligible concepts."
Id. If the claims are not directed to a patent-ineligible concept, e.g., to an
abstract idea, the inquiry ends. Otherwise, the inquiry proceeds to the
second step where the elements of the claims are considered "individually
and 'as an ordered combination'" to determine whether there are additional
elements that "'transform the nature of the claim' into a patent-eligible
application." Id. (quoting Mayo, 566 U.S. at 78-79).
In contesting the rejection under § 101, Appellants argue claims 11,
12, 16, 18, 25-27, and 41--49 as a group (see App. Br. 6-13). We select
independent claim 11 as representative of this group. Thus, claims 12, 16,
18, 25-27, and 41--49 stand or fall with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv).
Appellants argue that the claims are not directed to an abstract idea
because the Examiner has not cited to any evidence and "fail[ ed] to provide
any prior art to support the conclusion that such elements are representative
of an abstract idea." App. Br. 8. Appellants rely on PNC Bank v. Secure
Axcess, LLC., Case No. CBM2014-00100 (PTAB Sept. 9, 2014), a non-
precedential opinion, to argue lack of evidentiary support because "the
PT AB found that there was not sufficient evidence that the placing of a
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trusted stamp or seal on a document is a fundamental economic practice or a
building block of the modem economy, noting that in Alice there were
various references cited on the record that related to the concept of
intermediated settlement." Id. at 1 O; Reply Br. 4. 3 Conversely, the
Examiner relies on "four of the many examples of an abstract idea explicitly
referenced in the guidelines of "Interim Guidance on Patent Subject
Matter Eligibility December 16, 2014" as evidence that the claim is
directed to an abstract idea. Final Act. 3; see also Ans. 4.
As the outset, we note that nothing in Alice requires the Office to
identify specific references or provide extrinsic evidence to support a
determination that a claim is directed to an abstract idea. Nor did this Board
hold, in PNC Bank v. Secure Axcess, that there is any such requirement.
Generally, what a different panel did in a different situation under a different
set of facts has little bearing on the necessary evidentiary support of another
case----or for that matter, this case. 4
Nevertheless, examining earlier cases can play a role, especially in
deciding whether a concept that claims are determined to be directed to is an
abstract idea. See Amdocs (Israel) Limited v. Openet Telecom, Inc., 841
F.3d 1288, 1294 (Fed. Cir. 2016) ("Instead of a definition [for what an
'abstract idea' encompasses], then, the decisional mechanism courts now
apply is to examine earlier cases in which a similar or parallel descriptive
nature can be seen-what prior cases were about, and which way they were
3 We note the Reply Brief erroneously identifies the present application as
11/201,554.
4 "Every Board opinion is, by default, a routine opinion until it is designated
as precedential or informative" and such "routine opinion[ s are] not binding
authority." PTAB Standard Operating Procedure 2, Rev. 9, § VI(A).
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decided."). For instance, the patent claims (US 7,631, 191 ("' 191 patent"))
the PNC Bank v. Secure Axcess panel had before them are not comparable to
the claims here at issue. The '191 patent claims involved authenticating a
web page and were classified in class 713 covering electrical computers and
digital processing systems subject matter. In contrast, the claims here at
issue involve using a service engine to conduct a transaction and are
classified in class 705, subclass 14, which cover a financial business
practice, and, in particular, the purchase of a good or service involving a
discount or inventive.
Although we do not consider PNC Bank v. Secure Axcess either
controlling or germane, that panel's consideration of evidence in making a
determination under the first step of the Alice framework has merit. A
similar approach was taken in Apple, Inc. v. Ameranth, Inc., 843 F.3d 1229
(Fed. Cir. 2016). But these cases do not stand for the proposition that
Examiners must provide evidentiary support in every case before a
determination that a claim is directed to an abstract idea. There is no such
requirement. See, e.g., para. IV "July 2015 Update: Subject Matter
Eligibility" to 2014 Interim Guidance on Subject Matter Eligibility (2014
IEG), 79 Fed. Reg. 74618 (Dec. 16, 2014) ("The courts consider the
determination of whether a claim is eligible (which involves identifying
whether an exception such as an abstract idea is being claimed) to be a
question of law. Accordingly, courts do not rely on evidence that a claimed
concept is a judicial exception, and in most cases resolve the ultimate legal
conclusion on eligibility without making any factual findings.)" ( emphasis
added). Evidence may be helpful in certain situations where, for instance,
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facts are in dispute. But it is not always necessary. And we do not deem it
to be necessary in this case.
We find that this case's claims themselves and the Specification
provide enough information to inform one as to what they are directed to.
Representative claim 11 recites a method comprising ten steps: (1) receiving
transaction information associated with products being purchased, (2)
sending to product benefit providers ( e.g. product manufacturers )5 requests
for benefits ( e.g., coupons or discounts), 6 (3) receiving benefits information,
( 4) determining products eligible for benefits, ( 5) sending the eligible
benefits, ( 6) receiving a selection of the eligible benefits, (7) updating
transaction by applying the selected benefits, (8) sending an authorization
request with the updated transaction amount, (9) receiving an authorization
response, and (10) sending the authorization message to the merchant. The
aforementioned steps describe the process of managing a coupon redemption
process as part of conducting a transaction. According to the Specification,
the disclosure is directed to a method for conducting a
transaction. The method initiates sending transaction
information with a product identifier identifying a product
associated with a transaction conducted between a merchant
and a consumer to a service engine. The service engine is
programmed to determine and receive a benefit associated with
the product, wherein the benefit is determined after
communicating with a supplier of the product.
Spec. ,r 5; see also id. ,r 16 (describing managing the coupon redemption
process as part of completing a purchase transaction).
5 Spec. ,r 22.
6 Spec. ,r 36.
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Appellants insist that the Examiner's characterization of the abstract
idea as "describ[ing] the concept of managing transactions between people
( e.g., managing the purchased transaction associated with benefits between
user, the merchant and the service providers) ... is still conclusory and does
not satisfy the guidelines provided for establishing a proper 101 rejection.
Reply Br. 2-3. We disagree. The Examiner's characterization of the claims
as directed to managing purchase transactions (Ans. 5) is consistent with
Appellants' Specification and the claims before us. Indeed, our reviewing
court has held that claims directed to "the mere formation and manipulation
of economic relations" and "the performance of certain financial
transactions" are directed to abstract ideas. Content Extraction &
Transmission LLC v. Wells Fargo Bank, Nat. Ass'n, 776 F.3d 1343, 1347
(Fed. Cir. 2014); see also, e.g., Ultramercial, 772 F.3d at 716 (computer-
implemented system for "using advertising as a currency [on] the Internet");
buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1352, 1355 (Fed. Cir. 2014)
(computer-implemented system for guaranteeing performance of an online
transaction); CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366,
1370 (Fed. Cir. 2011) (computer-implemented system for "verifying the
validity of a credit card transaction[] over the Internet"); Smart Systems at
1372 ( directed to the formation of financial transactions in a particular field);
Kray IP Holdings, LLC v. Safeway, Inc., 107 F.Supp.3d 677, 690 (E.D. Tex.
2015), ajfd, 639 F. App'x 637 (Fed. Cir. 2016) ("Incentive award programs
designed to encourage sales of products and services have been familiar
aspects of marketing for many years, as the [7,054,830] patent itself
acknowledges.").
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We also are unpersuaded by Appellants' comparison of the claimed
invention to Enfish (Reply Br. 6-9 (quoting Spec. ,r,r 16-20)), because there
is a fundamental difference between computer functionality improvements,
on the one hand, and uses of existing computers as tools to perform a
particular task, on the other. The Federal Circuit applied this distinction in
Enfish in rejecting a § 101 challenge at the step one stage in the Alice
analysis because the claims at issue focused not on asserted advances in uses
to which existing computer capabilities could be put, but on a specific type
of data structure, i.e., a self-referential table for a computer database,
designed to improve the way a computer carries out its basic functions of
storing and retrieving data. Enfish, LLC v. Microsoft Corp., 822 F.3d 1327,
1335-36 (Fed. Cir. 2016). Here, the alleged improvement that Appellants
tout does not concern an improvement to computer capabilities, but instead
relates to an alleged improvement in implementing a financial transaction in
an online environment for which a computer is used as a tool in its ordinary
capacity. For instance, paragraphs 16-20 of the Specification cited by
Appellants describe advantages and improvements to the abstract idea itself,
which are realized by merely implementing the claimed process in a
computing environment. See, e.g., Spec. ,r 19 ("Suppliers can vary discounts
to consumers based on the quantity of products currently in their inventories.
By varying the discounts, suppliers can control the rate of movement of their
products from their inventories. This gives the suppliers the ability to
provide discounts as needed to control the quantities of products in their
inventories. By optimizing inventories, suppliers can reduce their costs in
maintaining their inventory. Also, suppliers can increase their sales revenue
by optimally adjusting the discounts and avoiding liquidators."). Like the
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abstract idea of hedging risk in Bilski v. Kappas, 561 U.S. 593 (2010), the
concept of managing a coupon redemption process during a financial
transaction is a fundamental economic and business practice long prevalent
in our system of commerce, and an "abstract idea" beyond the scope of
§ 101. See Alice, 134 S. Ct. at 2356. Thus, we are not apprised of error as to
the Examiner's determination of the abstract idea.
Step two of the Alice framework is "a search for an 'inventive
concept'-i.e., an element or combination of elements that is 'sufficient to
ensure that the patent in practice amounts to significantly more than a patent
upon the [ineligible concept] itself."' Alice, 134 S. Ct. at 2355 (alteration in
original) (quoting Mayo, 566 U.S. at 73).
Under step two, the Examiner determined that the claims recite
additional limitations of using a server computer of a payment processing
network, an acquirer, an issuer, and an access device, and that these
components simply perform the generic computer functions of receiving and
transmitting information that are well-understood, routine and conventional
activities previously known to the industry. Final Act. 5---6. According to
the Examiner"[ v ]iewed as a whole, these additional claim elements do not
provide meaningful limitations to transform the abstract idea into a patent
eligible application of the abstract idea such that the claims amount to
significantly more than the abstract idea itself." Id. at 6.
Appellants submit that it is not "well-understood, routine
and conventional in the field" to include the step of at least
"receiving, by a server computer of a payment processing
network, transaction information including product identifiers
associated with products being purchased by a consumer at a
merchant in a transaction ... the transaction information [being]
received from the access device at the merchant via an
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acquirer," as recited in independent claim 11. As noted about
[sic], it is clearly not conventional to send authorization request
messages with product identifiers to a central server computer
via an acquirer. Since this concept is not present in the "abstract
idea" and because this concept defines the claims over the prior
art, it must constitute "significantly more."
App. Br. 12. We cannot agree.
Appellants' Specification indicates that the additional elements
are well-known or conventional. 7 Paragraphs 26-28 of Appellants'
Specification disclose that a mobile communication device "may be in
any suitable form" and "can be any suitable wireless device" ( e.g.,
cellular or wireless phone, PDAs, pagers, portable computers, and the
like) that allows a consumer to conduct transactions with a merchant
("any suitable entity that conducts transactions with consumer") and
communicate information "using any suitable form of
communication" ( e.g., SMS, MMS, phone call, voice message,
voicemail message, IM, email, etc.) with other entities such as a
payment processing network. An access device is described as any
suitable device ( e.g., POS devices, cellular phones, PD As, personal
computers (PCs), tablet PCs, handheld specialized readers, set-top
7 See, e.g., Intellectual Ventures v. Symantec, 838 F.3d at 1317 ("The
written description is particularly useful in determining what is well-
known or conventional"); Internet Patents Corp., 790 F.3d at 1348
(relying on specification's description of additional elements as "well-
known", "common" and "conventional"); TL! Communications LLC
v. AV Auto. LLC, 823 F.3d 607,614 (Fed. Cir. 2016) (Specification
described additional elements as "either performing basic computer
functions such as sending and receiving data, or performing functions
'known' in the art.").
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boxes, electronic cash registers (ECRs ), automated teller machines
(ATMs), virtual cash registers (VCRs), kiosks, security systems,
access systems, and the like) for communicating with a merchant and
for interacting with a mobile communication device. Spec. ,r 29. An
acquirer "can be any suitable entity that has an account with [a]
merchant, such as a bank that operates a bank account for
merchant." Id. ,r 30; id. ,r 44 ("Issuer 90 can be any suitable entity
that may open and maintain an account associated with consumer 20.
Some examples of issuers may be a bank, a business entity such as a
retail store, or a governmental entity. In many cases, issuer 90 may
also issue a payment device ( e.g., a payment card) to consumer 20. In
some embodiments, issuer 90 may also be the acquirer 60.").
Appellants' described computer apparatuses, system architecture,
software components and functions are well-known and conventional.
See id. ,r,r 92-97. Indeed, the Federal Circuit has recognized receiving
or transmitting data over a network as well-understood, routine and
conventional computer functions, e.g., using the Internet to gather
data, Symantec, 838 F.3d at 1321 (utilizing an intermediary computer
to forward information); TL! Communications LLC v. AV Auto.
LLC, 823 F.3d 607, 610 (Fed. Cir. 2016) (using a telephone for image
transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359,
1363 (Fed. Cir. 2015) (sending messages over a network); buySAFE,
Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) (computer
receives and sends information over a network).
We also are unpersuaded by Appellants' argument that the claimed
invention is similar to DDR Holdings LLC v. Hotels.com, L.P., 113 F.3d
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1245 (Fed. Cir. 2014) and necessarily rooted in computer technology
because "a problem that can be solved by embodiments of the invention
relates to helping product suppliers to move excess inventory by closely
monitoring purchases of their products in real time and providing variable
benefits in real time based upon such inventories. Embodiments of the
invention solve this problem by utilizing a distributed computer system that
may include a payment card processing infrastructure." App. Br. 12; see
also Reply Br. 11. First, the claimed invention does not address a problem
unique to the Internet or computer networks, as such, the "claims here do not
address problems unique to the Internet, so DDR has no applicability."
Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363,
1371 (Fed. Cir. 2015)). Second, Appellants do not identify any problem
particular to computer networks and/or the Internet that the claims allegedly
overcome. Appellants' claimed solution is rooted in the routine use of
conventional computer technology to carry out the abstract idea of
addressing a business problem pertaining to optimizing inventories by
applying benefits or coupons. As our reviewing court has held, merely
reciting "tangible components" does not render claims non-abstract where,
as here, "the components [are] conventional and [are] used in conventional
ways." Affinity Labs. of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253,
1262 (Fed. Cir. 2016) ( noting that claims that recited "simply [] the use of
cellular telephones as tools in the aid of a process focused on an abstract
idea" was "not enough to constitute patentable subject matter"); see also
Prism Techs. LLC v. T-Mobile USA, Inc., 696 Fed. Appx. 1014, 1017 (Fed.
Cir. 2017) ( claimed "authentication server," "access server," "Internet
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Protocol network," "client computer device," and "database" amounted to
"indisputably generic computer components").
For at least the foregoing reasons, Appellants have not persuaded us
the Examiner erred in rejecting the claims under 35 U.S.C. § 101 as directed
to patent-ineligible subject matter. Accordingly, we sustain the rejection
under§ 101 of independent claim 11, including claims 12, 16, 18, 25-27,
and 41--49, which fall with claim 11.
Obviousness
Independent claims 11 and 41
In rejecting independent claims 11 and 41, "[t]he Examiner
takes Official Notice that is notoriously old and well known in the art
of having the POS ( access device) to receive multiple products
purchased associated with multiple of product identifier§ and it well
known in the art that multiple benefit§ associated with multiple
product§ in the purchased transaction are from multiple benefit
providers." Final Act. 15.
Appellants challenge the Examiner's reliance on Official Notice
in finding that White teaches limitations ( 1) and ( 4) of independent
claims 11 and 41. App. Br. 14--18. In particular,
Appellants traverses and disagrees with the Examiner's Official
Notice. Appellants request that the Examiner provide a prior art
reference to support the conclusion that the alleged feature of
the Official Notice was "well known" in the prior art. If it was
well known, then it should not be unduly burdensome for the
Examiner to find a prior art reference to support the assertion.
Further, even if a feature is "well known," which we are not
admitting, the reference found may not be combinable with
White, Walker, and Keith. Further, Appellants submit that it is
not "well known" in the art to receive multiple benefits from
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multiple benefit providers during a transaction that occurs in the
system described in the present claims.
Id. at 18.
In response to Appellants' argument, the Examiner
acknowledges reliance on the combination of White and Official
Notice (Ans. 22) but argues that Appellants' "arguments and
comments do not appear to constitute an adequate traverse because
applicant has not specifically pointed out the supposed errors in the
examiner's action, which would include stating why the noticed fact is
not considered to be common knowledge or well-known in the art."
Ans. 22-23.
We disagree that the Appellants just generally traversed the rejection
because as indicated above, Appellants pointed out a supposed error in the
Examiner's action and provided some rationale as to why the noticed fact is
not considered to be common knowledge or well-known in the art. As such,
Appellants' traversal contained adequate information or argument to create
on its face, a reasonable doubt regarding the circumstances justifying notice
of what is well-known to one of ordinary skill in the art. Thus, we conclude
Appellants timely traversed the taking of Official Notice. Because
Appellants adequately traversed the Examiner's assertion of Official Notice,
the Examiner should have provided documentary evidence if the rejection is
to be maintained. See 37 CPR 1.104( c )(2); see also In re Zurko, 258 F .3d
1379, 1386 (Fed. Cir. 2001) ("[T]he Board [or examiner] must point to some
concrete evidence in the record in support of these findings" to satisfy the
substantial evidence test).
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We also find the Examiner's citation to a definition from Wikipedia
untimely, and the reliance on In re Haiza fails to remedy the above
deficiency. See Ans. 23-24. As such, to the extent that the Examiner has
not established a prima facie case of obviousness on the record before us, we
do not sustain the rejection of claims 11 and 41 under 35 U.S.C. § 103(a).
For the same reasons, we do not sustain the rejections of claims 12, 16, 18,
25-27, and 42--49, which depend from either of claims 11 or 41.
DECISION
The Examiner's rejection of claims 11, 12, 16, 18, 25-27, and 41--49
under 35 U.S.C. § 101 is affirmed.
The Examiner's rejections of claims 11, 12, 16, 18, 25-27, and 41--49
under 35 U.S.C. § 103(a) are reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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