Ex Parte Lipsky et al

Patent Trial and Appeal Board

Mar 13, 2013

10858860 (P.T.A.B. Mar. 13, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SCOTT E. LIPSKY and PAUL BROWNLOW1
____________

Appeal 2010-007381
Application 10/858,860
Technology Center 2100
____________

Before BRUCE R. WINSOR, JEREMY J. CURCURI, and JAMES B.
ARPIN, Administrative Patent Judges.

ARPIN, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1, 3-6, 8-21, 29, 30, 32-35, 37-40, 44, and 45. Claims 2,
7, 22-28, 31, 36, and 41-43 are cancelled. App. Br. 1.2 We have jurisdiction
under 35 U.S.C. § 6(b). We affirm.

1 Eqapez Foundation, L.L.C. is the real party in interest.
2 Throughout this opinion, we refer to (1) the Appeal Brief (App. Br.) filed
December 7, 2009, supplementing the Appeal Brief filed October 20, 2009;
Appeal 2010-007381
Application 10/858,860

2
INVENTION
Appellants’ invention relates to methods and computer-readable
media having computer–executable instructions stored thereon for
displaying image information along with images. See generally Abstract.
Claims 1 and 44 are illustrative and are reproduced below with disputed
limitations emphasized:
1. A method in a computer system for displaying image
information for an image, the method comprising:
receiving by the computer system an image package that
includes an image and an image description, the image description
including:
image information,
instructions on how the image information is to be
displayed, and
timing information that specifies that the image
information is to be displayed multiple times during the
display of the image;
displaying the image of the received image package; and
displaying the image information of the image description of
the received image package in accordance with the instructions of the
image description and the timing information, wherein the image
information is alpha blended with a portion of the displayed image.

44. The method of claim 1 wherein the image description
further includes multiple layer specifications, each layer specification
identifying a portion of the image information and specifying an alpha
blending weighting factor that applies to the identified portion of the
image information, and
wherein the image information is alpha blended with a portion
of the displayed image in accordance with the alpha blending
weighting factor specified by each of the multiple layers.

The Examiner relies on the following as evidence of unpatentability:

(2) the Examiner’s Answer (Ans.) mailed February 23, 2010; and (3) the
Reply Brief (Reply Br.) filed April 23, 2010.
Appeal 2010-007381
Application 10/858,860

3
Kim US 2005/0071368 A1 Mar. 31, 20053
YOUNG, GEORGE, CASCADING STYLE SHEETS IN INTERNET EXPLORER 4.0,
(Microsoft Corp. Oct. 15, 1997), available at
http://msdn.microsoft.com/library/en-us/dnie40/html/css-ie4.asp?frame=true

AYARS, JEFF, SYNCHRONIZED MULTIMEDIA INTEGRATION LANGUAGE (SMIL 2.0)
W3C RECOMMENDATION (Aug. 7, 2001), available at
http://www.w3.org/TR/2001/REC-smil20-20010807/smil20.html.

REALNETWORKS, INC., REALNETWORKS PRODUCTION GUIDE WITH REALONE
PLAYER, Chapter 9 (Oct. 1, 2002).

LOWERY, SHELLY, INTERNET MARKETING TOOLS – ZIP/UNZIP BASICS - PART
THREE (Archived Feb. 6, 2003), available at http://www.web-
source.net/zip_basics.htm.

ÇELIK, TANTEK, CSS3 COLOR MODULE, W3C CANDIDATE RECOMMENDATION
(May 14, 2003), available at http://www.w3.org/TR/2003/CR-css3-color-
20030514.
THE REJECTIONS
1. The Examiner rejected claims 1, 3-6, 8-11, 14-21, 29, 30, 32-35, and
37-40 under 35 U.S.C. § 103(a) as unpatentable over Kim, Lowery,
and Ayars. Ans. 3-12.
2. The Examiner rejected claims 12 and 13 under 35 U.S.C. § 103(a) as
unpatentable over Kim, Lowery, Ayars, and RealNetworks. Id. at 13.
3. The Examiner rejected claims 44 and 45 under 35 U.S.C. § 103(a) as
unpatentable over Kim, Lowery, Ayars, Çelik, and Young. Id. at 13-
14.

3 Kim claims priority from a provisional application filed September 25,
2003.
Appeal 2010-007381
Application 10/858,860

4
OBVIOUSNESS REJECTION OVER KIM, LOWERY, AND AYARS
Regarding representative claim 1, the Examiner finds that Kim
teaches all of the limitations recited in claim 1, except (1) that the image and
the image description, including image information, are received in “an
image package” and (2) that the image information transitions, i.e., is
“displayed multiple times during the display of the image” and “is alpha
blended with a portion of the displayed image.” Ans. 4 (citing Kim ¶¶
[0062], [[0064], [0067], [0069], [0075], [0093], [0097]). The Examiner
finds, however, that Lowery’s teaching of the compression of more than one
file into a single file teaches Appellants’ “image package.” Ans. 4 (citing
Lowery, ¶¶ 1, 2). Further, the Examiner finds that Ayars teaches the display
of information multiple times (Ayars, 200) and that Ayars teaches the fading
of images, such as by alpha blending (id. at 309). Ans. 4. Moreover,
because Ayars teaches that Synchronized Multimedia Integration Language
(SMIL) timing features may be applied to other languages, such as
Extensible Markup Language (XML), (Ayars, 169) and that it would be
advantageous “to enable more presentation options and aesthetic effects” to
image displays (id. at 307-8), the Examiner concludes that it would have
been obvious to modify the teachings of Kim and Lowery in view of the
teachings of Ayars to achieve Appellants’ method, as recited in claim 1.
Ans. 4-5.
Appellants argue that, because Kim uses XML elements to describe
text and Ayars uses SMIL elements and because Kim teaches that, if its
XML element is used, the characteristics defined by the XML element
override those of other languages, such as SMIL and Hyper Text Markup
Language (HTML) (Kim, ¶ [0065]), Kim teaches away from its combination
Appeal 2010-007381
Application 10/858,860

5
with Ayars. App. Br. 7-9; Reply Br. 4-5. Consequently, Appellants contend
that the Examiner fails to provide a reason for combining the teachings of
Kim and Lowery with those of Ayars to achieve Appellants’ method, as
recited in claim 1. App. Br. 10-11.
ISSUES4
(1) Does Kim teach away from the combination of its teachings with
those of Ayars in the manner proposed in the obviousness rejection?
(2) Is the Examiner’s reason to combine the teachings of these
references supported by articulated reasoning with some rational
underpinning to justify the Examiner’s obviousness conclusion?
ANALYSIS
Based on the record before us, we see no error in the Examiner’s
rejection of representative claim 1 which calls for, in pertinent part, “timing
information that specifies that the image information is to be displayed
multiple times during the display of the image” and that “the image
information is alpha blended with a portion of the displayed image.”
1. Teaching Away.
In Paragraph [0065], Kim states that:
A element defines the position of a subtitle or caption
on a screen. In the absence of the element, a default
instruction may be used. HTML and [SMIL] formats offer a method

4 Appellants separately argue that Kim, Lowery, and Ayars fail to disclose
all of the limitations of claims 1 and 29, but Appellants provide no evidence
in support of this argument. App. Br. 10 (Subsection C.1.b.). It is well
settled that arguments of counsel cannot take the place of factually supported
objective evidence. See, e.g., In re Huang, 100 F.3d 135, 139-40 (Fed. Cir.
1996); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Therefore, we
find the Appellants’ arguments on this point unpersuasive and do not address
them further.
Appeal 2010-007381
Application 10/858,860

6
of defining text properties. However, if the element is
used, the characteristics defined by the element
override others (emphasis added).

Kim’s element is part of Kim’s ‘AudioWithText’ asset
which is described using XML. Kim, ¶ [0059]. Appellants argue that “[o]ne
skilled in the art would understand that an XML namespace, such as that
described by Kim, provides unique XML elements and attributes.” App. Br.
8 (emphasis added). Although Kim describes that an HTML or SMIL
element may be used as a default if the XML element is not present, Kim
requires that, if present, the XML element “override” the other elements. Id.
(citing Kim [0065]). Thus, according to Appellants, Kim “excludes” the use
of any SMIL (or HTML) instruction, including Ayars’s repeat attribute. We
disagree.
Initially, we note that the language of Appellants’ claim 1 does not
specify that the method is accomplished using XML, SMIL, HTML, or any
other computer language. App. Br. 22; see also App. Br. 24 (claim 29).
Consequently, to the extent that Appellants argue that any particular
language is excluded from consideration in the examination of Appellants’
claims, we find such arguments are not commensurate with the scope of the
claims.
Further, the Examiner is not attempting to bodily incorporate the
SMIL attributes of Ayars into the XML elements of Kim. See Ans. 15.
Instead, the Examiner contends that “since Ayars discloses the benefit of
having a repeat element, it would have been obvious to one of ordinary skill
in the art at the time of the invention to simply add that feature to Kim.”
Ans. 15-16 (emphasis added).
Appeal 2010-007381
Application 10/858,860

7
As the U.S. Supreme Court explained, “when the prior art teaches
away from combining certain known elements, discovery of a successful
means of combining them is more likely to be nonobvious.” KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 416 (2007). Kim, however, does not teach that
attributes taught or suggested by SMIL or SMIL modules may not be
combined with or exchanged for attributes taught or suggested by an XML
element. Instead, Kim merely expresses a preference for a particular XML
element, when such element is present. As Appellants note, an attribute,
such as Ayars’s repeatCount attribute (Ayars, 200), modifies certain features
of an element. Reply Br. 4 (citing MICROSOFT COMPUTER DICTIONARY 41,
189 (5th ed. 2002)). Appellants fail to demonstrate that Kim’s teaching
regarding an XML element overriding an SMIL element, also requires that
any or every SMIL attribute also must be overridden or excluded.
Consequently, we are not persuaded that Kim teaches away from the
inclusion of attributes described in one language in elements described in
any other language.
As noted above, Appellants argue that “use of one of Kim’s unique
XML elements excludes use of an SMIL (or HTML) instruction, such as
Ayars’ repeat attribute.” App. Br. 8 (underlining in original). In response,
the Examiner contends that “‘[o]verriding’ is not the same as ‘excluding’.”
Ans. 15. This dispute misses the point. The question is not whether
“overriding” is the same or different from “excluding,” but what is
overridden or excluded. Here, Kim teaches that an SMIL element may be
overridden or excluded if an XML element is present, but Appellants fail to
identify where Kim describes what attributes may or may not be shared
between elements of different languages. In Paragraph [0065], Kim merely
Appeal 2010-007381
Application 10/858,860

8
expresses a preference for an element in one language over elements in
another language. By itself, such a preference does not demonstrate a
teaching away. Pregis Corp. v. Kappos, 700 F.3d 1348, 1355 (Fed. Cir.
2012); In re Peterson, 315 F.3d 1325, 1331-2 (Fed. Cir. 2003). Moreover,
as the Examiner notes, Ayars specifically teaches that SMIL attributes, such
as those relating to SMIL timing, may be used by authors of other XML
languages. Ans. 4 (citing Ayars, 169). Thus, we are not persuaded that Kim
teaches away from the combination of its teachings with Ayars, as that
combination is proposed by the Examiner.
2. Reason to Combine.
As noted above, because the Examiner finds that Ayars teaches that
SMIL timing features are applied to other languages, such as XML, (Ayars,
169) and that it would be advantageous “to enable more presentation options
and aesthetic effects” to image displays (id. at 307-8), the Examiner
concludes that it would be obvious to modify the teachings of Kim and
Lowery in view of the teachings of Ayars to achieve Appellants’ method, as
recited in claim 1. Ans. 4-5. First, in describing the SMIL 2.0 Timing and
Synchronization Module, including the repeat attributes, Ayars explains that
“[t]here are two intended audiences for this module: implementers of SMIL
2.0 document viewers or authoring tools, and authors of other XML
languages who wish to integrate timing and synchronization support.”
Ayars, 169. Second, in describing the SMIL 2.0 Transition Effects Module,
Ayars states that
one aspect of presentations commonly seen on television has been
noticeably absent from SMIL: transitions such as fades and wipes. In
SMIL 1.0, any representation of transitions had to be “baked into” the
media itself and there was no method of coordinating transitions
Appeal 2010-007381
Application 10/858,860

9
across multiple media elements according to the timing framework of
SMIL 1.0. The purpose of this section is to specify the semantics and
syntax for describing transitions within SMIL and other XML-based
documents.

Ayars, 308 (emphasis added). Further, we note that Kim expressly provides
that, although XML is preferred, SMIL and HTML formats may be used for
defining text properties. Kim, ¶¶ [0065]; see Ans. 4-5. Thus, we are
persuaded that the Examiner demonstrates sufficient reasons to combine the
teachings of Kim and Ayars to establish a prima facie case of obviousness.
Although Appellants raise several arguments challenging these
reasons, we are not persuaded by those arguments. First, Appellants argue
that the above-quoted statements in Ayars are “merely an objective of an
individual reference.” App. Br. 11. Referring to the emphasized text, this
argument, however, improperly limits what a person of ordinary skill in the
relevant art would reasonably understand from the quoted statements and
unduly narrows the teaching of Ayars. Second, citing In re Grasselli, 713
F.2d 731, 743 (Fed. Cir. 1983), Appellants again argue that Kim teaches
away from its combination with Ayars. App. Br. 11-12. For the reasons set
forth above, we are not persuaded by this argument. Third, Appellants argue
that, because Ayars teaches numerous attributes, it is improper to pick from
the “staggering number” of possible combinations of attributes to achieve
the limitations, recited in Appellants’ claim 1. Id. at 12. Appellants argue
that the Examiner “selectively picks elements of each of the individual
references and ignores other elements.” Id. As the Examiner notes,
however, “any judgment on obviousness is in a sense necessarily a
reconstruction based on hindsight reasoning.” Ans. 17 (citing In re
Appeal 2010-007381
Application 10/858,860

10
McLaughlin, 443 F.2d 1392, 1395, (CCPA 1971)). The Examiner, however,
does not rely improperly on knowledge gleaned only from Appellants’
disclosure. Id. Despite its breadth, Ayars identifies the relevant limitations
and suggests that those limitations should be used in various languages.
Ayars, 169, 200, 307-9. Finally, Appellants contend that many examples
provided by Ayars are irrelevant to or incompatible with Appellants’ recited
method. App. Br. 12-13. Appellants argue that, in view of these other
examples, the combination of Kim and Ayars is improper. Id. As the
Examiner correctly notes, these examples are not relied upon to teach or
suggest elements of Appellants’ claim 1 and whether those examples could
be combined with Kim is not relevant to this rejection. Ans. 17. Thus, we
determine that the Examiner’s reason to combine the teachings of Kim and
Ayars is supported by articulated reasoning with sufficient rational
underpinning to justify the Examiner’s obviousness conclusion.
For the foregoing reasons, Appellants have not persuaded us of error
in the rejection of: independent claim 1; independent claim 29, which
includes substantially similar limitations as claim 1 and against which
Appellants raise substantially identical arguments (App. Br. 9-13); and
claims 3-6, 8-11, 14-21, 30, 32-35, and 37-40, which depend from either
claim 1 or claim 29 and are not separately argued with particularity (id. at
10, 21). Therefore, we sustain the rejection of claims 1, 3-6, 8-11, 14-21,
29, 30, 32-35, and 37-40.

Appeal 2010-007381
Application 10/858,860

11
OBVIOUSNESS REJECTION OVER KIM, LOWERY, AYARS, AND
REALNETWORKS
As noted above, the Examiner finds that Kim, Lowery, and Ayars
teach all of the limitations of independent claim 1, from which claims 12 and
13 depend. Ans. 4-5. Nevertheless, the Examiner acknowledges that Kim,
Lowery, and Ayars, collectively, do not disclose the limitations added by
dependent claims 12 and 13. Id. at 13. The Examiner finds, however, that
RealNetworks teaches the additional limitations of claims 12 and 13. Id.
Appellants argue that claims 12 and 13 are distinguishable over the
cited combination of references for the same reasons argued with respect to
claim 1. App. Br. 13-15. Moreover, Appellants argue that RealNetworks
fails to supply the alleged deficiencies in Kim, Lowery, and Ayars, as
applied to independent claim 1. Id. at 13-14. For the reasons discussed
above, Appellants fail to demonstrate that Kim, Lowery, and Ayars are
deficient with respect to the obviousness rejection of claim 1; and we are not
persuaded by this argument.
Moreover, Appellants argue that the Examiner’s statement that
“[RealNetworks] is [an] instruction manual for using SMIL” is merely a
conclusory statement and does not offer an articulated reasoning with some
rational underpinning to justify the Examiner’s obviousness conclusion. Id.
at 14-15. RealNetworks teaches characteristics of SMIL and, in particular,
horizontal and vertical arrangement characteristics. RealNetworks, 17-18.
As determined above with respect to the combination of Kim and Ayars,
Kim does not teach away from the inclusion of characteristics or attributes
of non-XML elements in XML elements. Ans. 18. Kim merely teaches that,
in certain situations, when both XML elements and non-XML elements are
Appeal 2010-007381
Application 10/858,860

12
present, the XML elements may override the non-XML elements. See Kim,
¶ [0065]. As the U.S. Supreme Court explained,
[w]hen a work is available in one field of endeavor, design incentives
and other market forces can prompt variations of it, either in the same
field or a different one. If a person of ordinary skill can implement a
predictable variation, § 103 likely bars its patentability. For the same
reason, if a technique has been used to improve one device, and a
person of ordinary skill in the art would recognize that it would
improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.

KSR, 550 U.S. at 417 (emphasis added). Although the Examiner could have
more clearly expressed the reason for the combination of teachings, in view
of the combination of the teachings of Kim and Ayars and the Court’s
explanation of the justification for such combinations in KSR, we see no
error in the Examiner’s combination of the teachings of RealNetworks with
those of Kim, Lowery, and Ayars, in support of this rejection. Therefore, we
sustain the rejection of claims 12 and 13.

OBVIOUSNESS REJECTION OVER KIM, LOWERY, AYARS, ÇELIK,
AND YOUNG
Regarding representative claim 44, the Examiner finds that Kim,
Lowery, and Ayars teach all of the limitations of independent claim 1, from
which claim 44 depends. Ans. 3-5. Nevertheless, the Examiner
acknowledges that Kim, Lowery, and Ayars do not specifically teach
multiple layer specifications. Id. at 13-14. The Examiner finds, however,
that Kim teaches that an image may be formatted according to Cascading
Style Sheet (CSS) or HTML standards. Id. at 13; see Kim, ¶ [0063].
Moreover, Young teaches a manner of using these standards to define
Appeal 2010-007381
Application 10/858,860

13
multiple layer specifications, each layer specification identifying a portion of
HTML and specifying the style that applies to the identified portion. Id.
(citing Young, 3, 22).
The Examiner acknowledges that Kim, Lowery, Ayars, and Young do
not teach that the layer specifications “specif[y] an alpha blending weighting
factor that applies to the identified portion of the image information,” as
recited in claim 44. Id. The Examiner finds, however, that Çelik teaches
this limitation and that a person of ordinary skill in the relevant art would
have reason to modify the teachings of the combined references to achieve
this limitation. Id. at 14 (citing Çelik, § 3.2).
Appellants argue that Young does not disclose “multiple layer
specifications, each layer specification identifying a portion of the image
information.” App. Br. 15-16. Moreover, Appellants argue that because
Kim’s unique XML elements “exclude” use of an HTML (or SMIL)
instruction, such as Young’s style attributes. Id. at 16.
Although Çelik describes applying an opacity property that is applied
to an HTML element and specifies an “alphavalue” between 0.0 (fully
transparent) and 1.0 (fully opaque), Appellants argue that Çelik does not
teach applying this alphavalue to an identified portion of the image
information. Id. at 17. Moreover, Appellants argue that Kim’s unique XML
elements “exclude” the use of an HTML (or SMIL) instruction, such as
Çelik’s transparency property. Id.
ISSUES
(1) Under § 103, has the Examiner erred in rejecting claims 44 and 45
by finding that Kim, Lowery, Ayars, Çelik, and Young, collectively, teach or
suggest “wherein the image description further includes multiple layer
Appeal 2010-007381
Application 10/858,860

14
specifications, each layer specification identifying a portion of the image
information”?
(2) Is the Examiner’s reason to combine the teachings of these
references supported by articulated reasoning with some rational
underpinning to justify the Examiner’s obviousness conclusion?
ANALYSIS
We begin by construing the disputed limitation of claim 44 which
calls for, in pertinent part, “the image description further include[ing]
multiple layer specifications.” Appellants do not define “layers” in their
Specification; and, although the Examiner proposes a definition for “layers,”
the Examiner fails to identify a source for that proposed definition. Ans. 19.
A pertinent definition of the related term “layering” is “[i]n computer
graphics, grouping of logically related elements in a drawing. Layering
enables a program user to view, and work on independently, portions of a
graphic instead of the entire drawing.” MICROSOFT COMPUTER DICTIONARY
307 (5th ed. 2002). Thus, we construe the term “multiple layer
specification” to describe specifications, including attributes or
characteristics, of at least one of a plurality of portions of a graphic.
Based on the record before us, we see no error in the Examiner’s
rejection of representative claim 44. Referring to the example depicted on
Page 22, Young describes that various justifications may be applied to
various portions of the text in a graphic. We are persuaded that the
application of different justifications, e.g., right, left, or center, to different
portions of the graphic teaches the application of a layer specification. Ans.
13-14; see also App. Br. 16. Moreover, by locating a portion of the image
Appeal 2010-007381
Application 10/858,860

15
information, e.g., a portion of the text of a graphic, Young identifies a
portion of the image information. Id.
Similarly, we are persuaded that Çelik teaches specifying an alpha
blending weighting factor to be applied to the identified portion of the image
information. Ans. 14. Referring to Section 3.2, Çelik teaches that “the
opacity setting specifies how to blend the offscreen rendering into the
current composite rendering.” Further, Çelik states that alphavalue applies
to “all elements” and that an alphavalue is an opacity setting in the range of
“0.0 (fully transparent) to 1.0 (fully opaque).” Çelik, § 3.2. Thus, we
conclude that Çelik broadly teaches applying an alpha blending weighting
factor to a portion of a graphic, so that it may be blended into or from a
current rendering. Ans. 14. Moreover, because Young describes CSS
standards and because Çelik specifically “proposes new properties and
values for CSS3, as well as CSS1 and CSS2”; we agree with the Examiner
that sufficient reason has been demonstrated to combine the teachings of
Young and Çelik, both with each other and with Kim, Lowery, and Ayars.5
See Ans. 20.
Finally, the Examiner argues that, because Young and Çelik are
directed to HTML elements, each teaches away from its combination with
Kim’s unique XML elements. App. Br. 16-17. As discussed above with
respect to the rejection of claim 1, although Kim describes overriding the
characteristics (e.g., attributes) of an HTML or SIML element if an XML
element is used (Kim, ¶ [0065]), Appellants misread Kim as rejecting any

5 In response to Appellants’ separate argument that the combination of Kim,
Lowery, Ayars, Young, and Çelik fail to disclose all of the limitations of
claims 44 and 45 (App. Br. 19 (Subsection C.3.b.)), please see ftnt. 4 supra.
Appeal 2010-007381
Application 10/858,860

16
characteristic that may appear in any element written in a different language.
Appellants correctly note that “elements” and “attributes” have different
meanings (Reply Br. 4), but Appellants misread Kim when they extend
Kim’s preference between “elements” to prohibit the combination of
teachings concerning the benefits of possible characteristics (e.g.,
“attributes”). Therefore, we here are not persuaded that Kim teaches away
from its combination with Young or Çelik. Ans. 18-20.
For the foregoing reasons, Appellants have not persuaded us of error
in the rejection of claim 44 and claim 45, which includes substantially
similar limitations as claim 44 and against which Appellants raise
substantially identical arguments (App. Br. 18-20). Therefore, we sustain
the rejection of claims 44 and 45.

CONCLUSION
The Examiner did not err in rejecting claims 1, 3-6, 8-21, 29, 30, 32-
35, 37-40, 44, and 45 under § 103.

DECISION
The Examiner’s decision rejecting claims 1, 3-6, 8-21, 29, 30, 32-35,
37-40, 44, and 45 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)(1)(iv) (2010).

AFFIRMED

rwk