Ex Parte Janas et al

Patent Trial and Appeal Board

Jan 31, 2019

14031789 (P.T.A.B. Jan. 31, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/031,789 09/19/2013
12684 7590 02/04/2019
Lempia Summerfield Katz LLC/CME
20 South Clark Street
Suite 600
Chicago, IL 60603
FIRST NAMED INVENTOR
Terrence Janas
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.
4672-13007 AUS 5899
EXAMINER
LEMIEUX, JESSICA
ART UNIT PAPER NUMBER
3693
NOTIFICATION DATE DELIVERY MODE
02/04/2019 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):
mail@lsk-iplaw.com
docket-us@lsk-iplaw.com
pair_lsk@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TERRENCE JANAS, JACQUES DOORNEBOS, and
BRUCE DICKMAN
Appeal2017-010851
Application 14/031, 789
Technology Center 3600
Before ALLEN R. MacDONALD, IRVINE. BRANCH, and
DAVID J. CUTITTA II, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL 1
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-20 and 23-33. Appellants have withdrawn claims 21 and 22. App.
Br. 25-26. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.
1 Appellants indicate the real party in interest is Chicago Mercantile
Exchange Inc. App. Br. 2.
Appeal2017-010851
Application 14/031,789
Illustrative Claim
Illustrative claims 1 and 32 under appeal read as follows ( emphasis,
formatting, and bracketed material added):
1. A computer-implemented method for identifying
potential abusive behavior in an electronic market, the method
compnsmg:
[A.] determining, by a processor, whether an individual
order book associated with a trader comprises an imbalance
between at least a subset of a quantity of previously received
but unsatisfied orders to buy and at least a subset of a quantity
of previously received but unsatisfied orders to sell in relation
to a financial instrument for which the trader submitted an
order;
[B.] determining, by the processor, whether an imbalance
identified in the individual order book changed after fulfillment
of the order;
[C.] identifying, by the processor, the order as potential
abusive behavior if the individual order book comprises an
imbalance that changed after fulfillment of the order; and
[D.] preventing, by the processor based on the
identifying, submission of a subsequent order by the trader to
the electronic market.
32. A system for identifying potential abusive behavior
in an electronic market, the system comprising:
[A.] means/or determining whether an individual order
book associated with a trader comprises an imbalance between
at least a subset of a quantity of previously received but
unsatisfied orders to buy and at least a subset of a quantity of
previously received but unsatisfied orders to sell in relation to a
financial instrument for which the trader submitted an order;
[B.] means for determining whether an imbalance
identified in the individual order book changed after fulfillment
of the order;
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[C.] means for identifying the order as potential abusive
behavior if the individual order book comprises an imbalance
that changed after fulfillment of the order; and
[D.] means/or preventing, based on the identifying,
submission of a subsequent order by the trader to the electronic
market.
App. Br. 23, 28 (Claims Appendix).
West et al.
Friedman et al.
References2
US 2010/0161476 Al
US 8,751,372 Bl
Re} ections3
A.
June 24, 2010
June 10, 2014
The Examiner rejected claims 1-20 and 23-33 under 35 U.S.C. § 101
"because the claimed invention is directed to a judicial exception (i.e., a law
of nature, a natural phenomenon, or an abstract idea) without significantly
more," i.e., because the claimed invention is directed to patent-ineligible
subject matter. Final Act. 13-15.
We select claims 1 and 32 as representative. Appellants do not
separately argue claims 2-20, 23-31, and 33. Except for our ultimate
decision, we do not discuss the § 101 rejection of claims 2-20, 23-31, and
3 3 further herein.
2 All citations herein to these references are by reference to the first named
inventor only.
3 All citations to the "Final Action" are to the Final Action mailed on
October 13, 2016.
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Application 14/031,789
B.
The Examiner rejected claims 1-20 and 23-33 under 35 U.S.C. § 103
as being unpatentable over the combination of Friedman and West. Final
Act. 15-18.
We select claim 1 as representative. Appellants do not separately
argue claims 2-20 and 23-33. Except for our ultimate decision, we do not
discuss the § 103 rejection of claims 2-20 and 23-33 further herein.
Issues on Appeal
Did the Examiner err in rejecting claims 1 and 32 as being directed to
patent-ineligible subject matter?
Did the Examiner err in rejecting claim 1 as being obvious?
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments (Appeal Brief and Reply Brief) that the Examiner has erred. We
disagree with Appellants. Except as noted below, we adopt as our own
(1) the findings and reasons set forth by the Examiner in the action from
which this appeal is taken and (2) the reasons set forth by the Examiner in
the Examiner's Answer in response to Appellants' Appeal Brief arguments.
We concur with the conclusions reached by the Examiner. We highlight the
following points.
A. Section 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.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
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implicit exceptions: "[l]aws of nature, natural phenomena, and abstract
ideas" are not patentable. E.g., Alice Corp. v. CLS Bank Int 'l, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court's two-step framework, described in Mayo
and Alice. Id. at 217-18 ( citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75-77 (2012)). In accordance with that framework,
we first determine what concept the claim is "directed to." See Alice, 573
U.S. at 219 ("On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk."); see also Bilski v. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4
in petitioners' application explain the basic concept of hedging, or protecting
against risk.").
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219-20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594--95 (1978)); and
mental processes ( Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as "molding rubber products" (Diamond v. Diehr, 450 U.S. 175, 192
( 1981) ); "tanning, dyeing, making waterproof cloth, vulcanizing India
rubber, smelting ores" (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267---68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that "[a] claim drawn to subject matter otherwise
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statutory does not become nonstatutory simply because it uses a
mathematical formula." Diehr, 450 U.S. at 187; see also id. at 191 ("We
view respondents' claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula."). Having
said that, the Supreme Court also indicated that a claim "seeking patent
protection for that formula in the abstract ... is not accorded the protection
of our patent laws, ... and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment." Id. ( citation omitted) ( citing Benson and Flook); see, e.g., id.
at 187 ("It is now commonplace that an application of a law of nature or
mathematical formula to a known structure or process may well be deserving
of patent protection.").
If the claim is "directed to" an abstract idea, we tum to the second
step of the Alice and Mayo framework, where "we must examine the
elements of the claim to determine whether it contains an 'inventive
concept' sufficient to 'transform' the claimed abstract idea into a patent-
eligible application." Alice, 573 U.S. at 221 (quotation marks omitted). "A
claim that recites an abstract idea must include 'additional features' to
ensure 'that the [claim] is more than a drafting effort designed to
monopolize the [ abstract idea]."' Id. ( alterations in original) ( quoting Mayo,
566 U.S. at 77). "[M]erely requir[ing] generic computer implementation[]
fail[s] to transform that abstract idea into a patent-eligible invention." Id.
B. USPTO Section 101 Guidance
The United States Patent and Trademark Office (USPTO) recently
published revised guidance on the application of§ 101. US PTO' s January
7, 2019 Memorandum, 2019 Revised Patent Subject Matter Eligibility
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Guidance, 84 Fed. Reg. 50 ("Memorandum"). Under that guidance, we first
look to whether the claim recites:
(1) (see Memorandum Step 2A - Prong One) any judicial exceptions,
including certain groupings of abstract ideas (i.e., mathematical
concepts, certain methods of organizing human interactions such as a
fundamental economic practice, or mental processes); and
(2) (see Memorandum Step 2A - Prong Two) additional elements that
integrate the judicial exception into a practical application (see MPEP
§ 2106.0S(a}-(c), (e}-(h)). 4
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
"well-understood, routine, conventional" in the field (see MPEP
§ 2106.0S(d)); or
( 4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
See Memorandum Step 2B.
4 We acknowledge that some of these considerations may be properly
evaluated under Step 2 of Alice (Step 2B of Office guidance). Solely for
purposes of maintaining consistent treatment within the Office, we evaluate
it under Step 1 of Alice (Step 2A of Office guidance). See USPTO's January
7, 2019 Memorandum, "2019 Revised Patent Subject Matter Eligibility
Guidance."
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C. Examiner's §101 Rejection -Alice/Mayo - Steps 1 and 2
C.1. USPTO Memorandum Step 2A - Prong One
Applying step 1 of the Alice/Mayo analysis, the Examiner concludes
claim 1 is directed to an abstract idea.
In the instant case, the claim(s) is/are directed towards
identifying and preventing potential abusive behaviors,
specifically in an electronic market, which is a fundamental
economic practice and is not meaningfully different than those
commerce and economic concepts that have been identified as
abstract by the courts as explained in detail below.
Final Act. 13 ( emphasis added).
Claim[] 1 ... recite[ s ], in part: determining the presence
of imbalances, determining changes in imbalances, and
identifying and preventing abusive behavior. These steps
describe the concept of identifying and preventing potential
abusive behaviors, specifically in an electronic market. ... [T]he
claims as a whole are directed to identifying and preventing
potential abusive behaviors, specifically in an electronic market,
which is a "fundamental economic practice" (Alice Corp. Pty.
Ltd. v. CLS Bank lnt'l, Bilski v. Kappas, buySAFE Inc. v.
Google Inc., Ultramercial Inc. v. Hulu, LLC).
Final Act. 14--15.
C.2. USPTO Memorandum Step 2A - Prong Two
Applying step 2 of the Alice/Mayo analysis, the Examiner concludes:
[T]he claims do not include an improvement to another
technology or technical field, an improvement to the functioning
of the computer itself, or meaningful limitations beyond
generally linking the use of an abstract idea to a particular
technological environment.
Final Act. 13-14.
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C.3. USPTO Memorandum Step 2B
Further applying step 2 of the Alice/Mayo analysis, the Examiner
concludes:
The claim(s) does/do not include additional elements that
are sufficient to amount to significantly more than the judicial
exception because the additional element(s) or combination of
elements in the claim( s) other than the abstract idea per se
amount( s) to no more than: (i) mere instructions to implement
the idea on a computer, and /or (ii) recitation of generic computer
structure that serves to perform generic computer functions that
are well-understood, routine, and conventional activities
previously known to the pertinent industry.
Final Act. 13.
The claim recites the additional elements of a processor to
perform the claimed steps. The processor is recited at a high
level of generality and only performs generic functions that are
well-understood, routine and conventional activities previously
known to the industry. Generic computers performing generic
computer functions, without an inventive concept, do not amount
to significantly more than the abstract idea.
Final Act. 14 ( emphasis added).
D. Appellants'§ 101 Arguments
D.1.
As to claim 1, Appellants contend "the present claims are not directed
to an abstract idea and the claimed invention is not a mere statement of a
general concept." App. Br. 5. Appellants particularly contend:
[E]ven if found to be directed to an abstract idea, e.g. identifying
potential, abusive behaviors specifically in an electronic market,
the claimed invention does not pre-empt all use of the abstract
idea, i.e. the claims do not preempt all identification of abusive
behaviors in an electronic market, but instead recite a practical,
specific and discrete implementation.
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App. Br. 5 (emphasis added).
Appellants' "preemption" argument is not persuasive because
although "preemption may signal patent ineligible subject matter, the
absence of complete preemption does not demonstrate patent eligibility."
Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir.
2015). We are instructed that "[ w ]here a patent's claims are deemed only to
disclose patent ineligible subject matter under the [Alice/Mayo] framework
... , preemption concerns are fully addressed and made moot." Id.
We agree with the Examiner. We determine that the "identifying and
preventing potential abusive behaviors, specifically in an electronic market"
of "financial instrument[ s ]" of claim 1 recites a judicial exception in the
form of a method of organizing human activity comprising fundamental
economic principles or practices (including hedging, insurance, mitigating
risk). That is, we conclude that Appellants' identifying and preventing is
mitigating the risk of abusive behavior in an electronic market of financial
instruments.
D.2.
Also as to claim 1, Appellants contend "[t]he claimed invention is a
technical invention." App. Br. 12. Appellants particularly contend:
[T]he claims ... are directed to a specific, novel and patentable
system for determining whether an order book associated with a
trader comprises an imbalance between unsatisfied previously
received orders to buy and unsatisfied previously received orders
to sell, whether the imbalance changed after fulfillment of a
submitted related order, and preventing submission of a
subsequent order if the determined imbalance did change, as
claimed.
App. Br. 6 (emphasis added).
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Application 14/031,789
Appellants submit that the elements of the claims, in
combination, are more than the non-conventional and non-
generic arrangement of known, conventional elements, i.e. the
utilization of changes in buy/sell order imbalances as a
determining factor in identifying order submission should be
prevented .
. . . Appellants submit that the claimed combination is a
specific implementation which has NOT been used before and
therefore is not well understood, routine or conventional in the
art.
Appellants submit that that while the Examiner may not
view the additional elements as adding significantly more, "those
additional elements when viewed in combination" most certainly
"amount to significantly more than the exception by
meaningfully limiting the judicial exception."
App. Br. 8-9 ( emphasis added).
[ A ]t least some of the problems solved by Appellants' invention
are specifically rooted in technology, specifically in electronic
transaction processing systems which are enabled to evaluate the
overall result of a series of transactions to identify scenarios
where one is building up to a single illegitimate action though
the component actions thereof are not illegitimate, and thereby
detect illegitimate behavior even when the actions leading
thereto appear legitimate.
App. Br. 11 ( emphasis added).
Contrary to Appellants' "meaningfully limiting" and "rooted in
technology" arguments, we do not find before us a non-abstract
improvement to technology. The focus of claim 1 is not on an improvement
in computer-functionality, as in Enfzsh, but on an abstract idea that uses a
computer as a tool for "identifying and preventing potential abusive
behaviors, specifically in an electronic market" of "financial instrument[ s ]"
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of claim 1. App. Br. 13. In Trading Technologies, the Federal Circuit
agreed with the district court explanation that:
The claims require a specific, structured graphical user interface
paired with a prescribed functionality directly related to the
graphical user interface's structure that is addressed to and
resolves a specifically identified problem in the prior state of the
art.
Trading Techs. Int'!, Inc. v. CQG, INC, 675 F. App'x 1001, 1004 (Fed. Cir.
2017). In contrast, in Appellants' claim 1, we find only abstract
improvements to identifying and preventing potential abusive behaviors in
an electronic market. A claim directed to a unique and advantageous system
for managing potential abusive behaviors in an electronic market is
nonetheless directed to an abstract idea. 5 "[U]nder the Mayol Alice
framework, a claim directed to a newly discovered law of nature ( or natural
phenomenon or abstract idea) cannot rely on the novelty of that discovery
for the inventive concept necessary for patent eligibility." Genetic Techs.
Ltd. v. Merial L.L.C., 818 F.3d 1369, 1376 (Fed. Cir. 2016); see Diehr, 450
U.S. at 188-89.
We agree with the Examiner that as to claim 1, "the claims do not
include an improvement to another technology or technical field, an
5 See Ultramercial, Inc. v. Hulu LLC, 772 F.3d. 709 (Fed. Cir. 2014). In
that case, the patentee argued that its financial arrangement ( a method of
using advertising as an exchange or currency) was distinguishable from the
"routine," "long prevalent," or "conventional" abstract idea in Alice
because it was "directed to a specific method of advertising and content
distribution that was previously unknown." Id. at 714. The court rejected
the patentee's position that "abstract ideas remain patent-eligible under
§ 101 as long as they are new ideas, not previously well known, and not
routine activity." Id.
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improvement to the functioning of the computer itself, or meaningful
limitations beyond generally linking the use of an abstract idea to a
particular technological environment." Final Act. 13-14. In view of
Appellants' Specification (i1i1 [55-56], and consistent with the Examiner's
determinations, we conclude that claim 1 does not integrate the judicial
exception into a practical application. We determine claim 1 does not recite:
(i) an improvement to the functioning of a computer;
(ii) an improvement to another technology or technical field;
(iii) an application of the abstract idea with, or by use of, a
particular machine;
(iv) a transformation or reduction of a particular article to a
different state or thing; or
(v) other meaningful limitations beyond generally linking the
use of the abstract idea to a particular technological
environment.
See MPEP §§ 2106.05(a}-(c), (e}-(h). We agree with the Examiner that
claim 1 is directed to a judicial exception.
D.3.
Further as to claim 1, although claim 1 recites "more" under step two
of the Alice/Mayo analysis, we conclude the "more" in the form of "a
processor" is not significant. Rather, the case law shows this "more" to be
the epitome of a well-understood, routine, conventional
element/combination previously known in the industry. See Alice, 573 U.S.
at 227 ("[P]etitioner's ... media claims add nothing of substance to the
underlying abstract idea."); Fairwarning IP, Inc. v. Iatric Sys., Inc., 839 F.3d
1089, 1096 (Fed. Cir. 2016) ("Claims 15-17 ... add nothing more than
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similar nominal recitations of basic computer hardware, such as 'a non-
transitory computer-readable medium with computer-executable
instructions' and a microprocessor.").
Because claim 1, in addition to the judicial exception, recites only a
well-understood, routine, conventional element/combination previously
known in the industry, we conclude the case law shows there is no genuine
issue of material fact regarding step two of the Examiner's Alice/Mayo
analysis. Therefore, in view of Appellants' Specification, and consistent
with the Examiner's determinations, we determine the claims do not recite:
(vi) a specific limitation other than what is well-understood,
routine, conventional activity m the field or
unconventional steps that confine the claim to a particular
useful application.
See MPEP § 2106.0S(d).
D.4.
As to claim 32, Appellants contend:
In a recent case, the Patent Trial and Appeal Board (PT AB)
found that a "means for matching" limitation amounted to a
"specific algorithm that transforms an otherwise general purpose
computer into a special purpose computer programmed to
perform the recited function of 'matching."' Thus, according to
the Board, "when, as here, a special purpose computer constitutes
the structure that performs the recited function of 'matching,' in
practical terms it imparts a meaningful limitation or adds
significantly more to the abstract idea, itself." See Chicago
Mercantile Exchange, Inc. v. 5th Market, Inc., CBM2015-00061
(PTAB July 16, 2015) (Paper 9), pages 37-38.
While this PT AB decision may not be precedential, it may
serve as an example in that as with the claims at issue in the
above referenced decision, claim 32 of the present application
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recites means-plus-function elements which amount to "specific
algorithm that transforms an otherwise general purpose computer
into a special purpose computer programmed to perform the
recited function" and therefore imparts a meaningful limitation
or adds significantly more to the abstract idea, itself.
App. Br. 14.
Appellants argument does not present any indication of what
"corresponding structure, material, or acts described in the specification" (35
U.S.C. § 112(±)) Appellants consider to support the four "means for"
limitations of claim 32. Our review of the Specification finds no particular
corresponding structure for the four recited "means for." Rather, the first
three "means for" of claim 32 are simply disclosed as "means for"
performing their recited functions (Spec. ,r 52), and the final "means for
preventing" is disclosed solely by its function ("the offending market
participant may be blocked from submitting orders" (Spec. ,r 13)).
Appellants' argument is not persuasive. Essentially, Appellants are
arguing that inclusion of the phrase "means for" in a claim always imparts a
meaningful limitation or adds significantly more to the abstract idea, itself.
We disagree. We conclude, a particular "corresponding structure, material,
or acts described in the specification" may impart a meaningful limitation in
a 35 U.S.C. § 112(±) context. However, the mere inclusion of the phrase
"means for" in a claim does not have that effect.
Steps that do nothing more than spell out what it means to
"apply it on a computer" cannot confer patent-eligibility. Alice,
[573 U.S. at 224,] 134 S.Ct. at 2359 (warning against a § 101
analysis that turns on the draftsman's art (citing Flook, 437 U.S.
at 593, 98 S.Ct. 2522)). Requiring the use of a "software"
"brain" "tasked with tailoring information and providing it to the
user" provides no additional limitation beyond applying an
abstract idea, restricted to the Internet, on a generic computer.
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Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363,
1370-71 (Fed. Cir. 2015)
E. Appellants '§ 103 Arguments
E.1.
Appellants contend that the Examiner erred in rejecting claim 1 under
35 U.S.C. § 103(a) because:
The Examiner admits that Friedman fails to disclose
prevention of submission of a subsequent order by the trader to
the electronic market, as claimed. The Examiner looks to West
for this element but fails to off er any compelling suggestion,
motivation or reasoning for one of ordinary skill in the art to
combine these references.
App. Br. 15 ( emphasis added).
As to Appellants' assertion, we disagree. Appellants' Appeal Brief
quotes paragraph 26 ( emphasis added) of West explicitly states the "present
invention provides a system that preferably operates as a money
management tool" which "preferably operates as a trader's conscience ...
by modifying the orders before they are sent to the exchange." Contrary to
Appellants' argument, we find this a compelling motivation to modify
Freidman's determination of regulatory violation to include modifying
orders to prevent the violation.
E.2.
Appellants present additional contentions that the Examiner has erred
in rejecting claim 1 under 35 U.S.C. § 103. App. Br. 17-21. We do not
reproduce Appellants' additional arguments herein. The Examiner responds
to each contention at pages 17-18 of the Answer.
Again, we adopt as our own ( 1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken and (2) the
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reasons set forth by the Examiner in the Examiner's Answer in response to
Appellants' Appeal Brief arguments. We concur with the conclusions
reached by the Examiner.
CONCLUSIONS
(1) The Examiner has not erred in rejecting claims 1-20 and 23-33
under 35 U.S.C. § 101, as being directed to patent-ineligible subject matter.
(2) The Examiner has not erred in rejecting claims 1-20 and 23-33 as
being unpatentable under 35 U.S.C. § 103(a).
(3) Claims 1-20 and 23-33 are not patentable.
DECISION
The Examiner's rejection of claims 1-20 and 23-33 under 35 U.S.C.
§ 101, as being directed to patent-ineligible subject matter, is affirmed.
The Examiner's rejection of claims 1-20 and 23-33 as being
unpatentable under 35 U.S.C. § 103(a) 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)(l )(iv).
AFFIRMED
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