Ex Parte Monnier et al

Patent Trial and Appeal Board

Mar 28, 2017

12982387 (P.T.A.B. Mar. 28, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/982,387 12/30/2010 Carla A. Monnier 006593-02174-Cl 8275
33375 7590 03/30/2017
THOMPSON HTNF T T P
EXAMINER
Intellectual Property Group
10050 Innovation Drive
PHANTANA ANGKOOL, DAVID
Suite 400 ART UNIT PAPER NUMBER
DAY 1UJN, Ult 4P54Z-4P54 2175
NOTIFICATION DATE DELIVERY MODE
03/30/2017 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):
ipdocket @ thompsonhine. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CARLA A. MONNIER, MARK EDWARD
EBERHARDT JR., DAVID SCOTT MILLER, and
JAMES CARL MEYER
Appeal 2017-000149
Application 12/982,3 871
Technology Center 2100
Before ST. JOHN COURTENAY III, THU A. DANG, and
LARRY J. HUME, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1—3, 5—7, 12 and 16. Claims 8—11 and 13—15 are
objected to, but otherwise indicated as being directed to patentable subject
matter if rewritten in independent form. Final Act. 7. Appellants have
previously canceled claims 4 and 17—20. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 According to Appellants, the real party in interest is Premark FEG LLC.
Br. 3.
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Application 12/982,387
STATEMENT OF THE CASE2
The Invention
Appellants' claimed invention relates to a scale which can
automatically identify when a food product pricing scale is in an offline
condition and changes a color condition on the scale display to alert scale
operators of the offline condition. Abstract.
Exemplary Claim
Claim 1, reproduced below, is representative of the subject matter on
appeal (lettering and emphases added to disputed limitations):
1. In connection with a food product scale located in
a store, the scale including a weighing station having an
associated mechanism for producing weight indicative signals,
and an operator interface screen including at least one color
display, the scale including a communications interface for
communicating with another computer device via a network, a
method of providing a scale operator with an indication that the
scale has gone offline of the network and thus no longer has a
communications link to receive information from the computer
device, the method comprising the steps of:
[LI] the scale automatically determining its online or
offline status by monitoring the communications interface;
[L2] while the scale is online, presenting a portion of an
operator interface via the operator interface screen in a first
color,
2 Our Decision relies upon Appellants' Appeal Brief ("Br.," filed
Sept. 8, 2015); Examiner's Answer ("Ans.," mailed July 18, 2016); Final
Office Action ("Final Act.," mailed May 12, 2015); and the original
Specification ("Spec.," filed Dec. 30, 2010). We note Appellants did not file
a Reply Brief to rebut the Examiner's factual findings and legal conclusions
in the Answer.
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[L3] while the scale is offline of the network, presenting
the portion of the operator interface via the operator interface
screen in a second color that is different than the first color.
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Hikita et al. ("Hikita") US 4,901,237 Feb. 13, 1990
McDonnell et al. ("McDonnell") US 2003/0182014 Al Sep. 25, 2003
Ramsden et al. ("Ramsden") US 2004/0089482 Al May 13, 2004
Rejections on Appeal
Rl. Claims 1, 2, 5—7, 12, and 16 stand rejected under 35 U.S.C.
§103 (a) as being unpatentable over the combined teachings of Hikita and
McDonnell. Ans. 3.
R2. Claim 3 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combined teachings of Hikita, McDonnell, and
Ramsden. Ans. 7.
CLAIM GROUPING
Based on Appellants' arguments (Br. 7—30), we decide the appeal of
Rejection Rl of claims 1 and 2 on the basis of representative claim 1; we
decide the appeal of Rejection Rl of claims 6 and 7 on the basis of
representative claim 6.
We address Rejection Rl of claims 12 and 16, infra', we address
Rejection Rl of separately argued claim 5, infra. We decide the appeal of
separately argued Rejection R2 of claim 3, infra.
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Application 12/982,387
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellants. We do not consider arguments
which Appellants could have made but chose not to make in the Briefs so
that we deem any such arguments as waived. 37 C.F.R. § 41.37(c)(l)(iv).
We agree with Appellants' arguments with respect to claims 5, 12
and 16. However, we disagree with Appellants' arguments with respect to
claims 1—3, 6, and 7, and we incorporate herein and 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 and rebuttals set forth in the
Examiner's Answer in response to Appellants' arguments regarding these
claims. We incorporate such findings, reasons, and rebuttals herein by
reference unless otherwise noted. However, we highlight and address
specific findings and arguments for emphasis as follows.
1. Rejection R1 of Claims 1 and 2
Issue 1
Appellants argue (Br. 7—19) the Examiner's rejection of claim 1 under
35 U.S.C. § 103(a) as being obvious over the combination of Hikita and
McDonnell is in error. These contentions present us with the following
issues:
Did the Examiner err in combining the cited prior art in the manner
suggested to reject claim 1 under § 103 because, purportedly, "the Examiner
formulated the obviousness rejection of claim 1 using McDonnell, which is
non-analogous art" (Br. 8), and because "[njeither Hikita nor McDonnell
discloses that the scale automatically determines its online or offline status
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Application 12/982,387
by monitoring a communications interface" (Br. 10), as recited in limitations
LI, L2, L3 of claim 1?
Analysis
Appellants contend McDonnell is non-analogous art. Br. 8. In
particular Appellants argue:
The field of endeavor of the claimed subject matter is
providing networked scales for weighing food products in retail
stores, including supermarkets. Specification, | [0001]. The
McDonnell reference is in the field of endeavor of "automated
manufacturing," in particular, monitoring automated machine
tools in process lines. McDonnell, | [0001]. McDonnell is not a
scale reference disclosing subject matter relevant to operating
scales in a retail grocery store and never even mentions the
terms "scale" or "weigh" or "weight" or "weighing." McDonnell
instead discloses a tool wear monitoring system for use in an
industrial manufacturing environment to monitor a set of
manufacturing machines. McDonnell, 1 1 [0001] and [0011].
Therefore, McDonnell is not in the same field of endeavor as
the present application.
McDonnell is not reasonably pertinent to the particular
problem with which the inventor was concerned.
Br. 8.
Whether a reference in the prior art is "analogous" is a fact question.
In re Clay, 966 F.2d 656, 658 (Fed. Cir. 1992) (citing Panduit Corp. v.
Dennison Mfg., 810 F.2d 1561, 1568 n.9 (Fed. Cir. 1987), cert, denied, 481
U.S. 1052 (1987)). Two criteria have evolved for determining whether prior
art is analogous: (1) whether the art is from the same field of endeavor,
regardless of the problem addressed, and (2) if the reference is not within the
field of the inventor's endeavor, whether the reference still is reasonably
pertinent to the particular problem with which the inventor is involved. Id.
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Application 12/982,387
(citing In re Deminski, 796 F.2d 436, 442 (Fed. Cir. 1986); In re Wood, 599
F.2d 1032, 1036 (CCPA 1979)).
A reference is reasonably pertinent if, even though it may
be in a different field from that of the inventor's endeavor, it is
one which, because of the matter with which it deals, logically
would have commended itself to an inventor's attention in
considering his problem. Thus, the purposes of both the
invention and the prior art are important in determining whether
the reference is reasonably pertinent to the problem the
invention attempts to solve. If a reference disclosure has the
same purpose as the claimed invention, the reference relates to
the same problem, and that fact supports use of that reference in
an obviousness rejection.
Clay, 966 F.2d at 659.
We observe the Examiner cites Hikita as the primary reference in
rejecting claim 1. Final Act. 2. We find Hikita is in the same field of
endeavor as the instant application because it discloses an electronic scale
system for use with merchandise data. Hikita, Abstract. Regarding claim 1,
the Examiner cites McDonnell only for the limited purpose of teaching or
suggesting providing an offline indication based on display color, such as in
limitation L3, i.e., "while the scale is offline of the network, presenting the
portion of the operator interface via the operator interface screen in a second
color that is different than the first color." Final Act. 3.
We agree with the Examiner's finding that McDonnell's interface
design, which displays visual status indicators to the user, teaches or at least
suggests disputed limitation L3. We find McDonnell's visual status
indicators to be pertinent to the problem with which the inventor is involved,
which includes displaying a color offline indicator.
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The Examiner finds both Hikita and McDonnell teach an apparatus
with a user interface and a communication module connected to a computer.
Ans. 8. The Examiner finds McDonnell teaches an interface displaying the
individual status of a plurality of connected devices. McDonnell's interface
teaches a color-coded status display to provide visual indication of the status
of the connected devices. By this rationale, the Examiner finds Hikita and
McDonnell are analogous art. Ans. 8—9. We agree with the Examiner's
finding that both Hikita and McDonnell are analogous art to the claimed
invention because the references are reasonably pertinent to the problem the
claimed invention attempts to solve.
Further to Appellants' argument that "McDonnell is not reasonably
pertinent to the particular problem with which the inventor was concerned"
(Br. 8 (emphasis added)), the Supreme Court held, "[i]n determining
whether the subject matter of a patent claim is obvious, neither the particular
motivation nor the avowed purpose of the patentee controls. What matters is
the objective reach of the claim. If the claim extends to what is obvious, it is
invalid under § 103." KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398, 419
(2007). Our reviewing court further guides it is irrelevant that the prior art
and the present invention may have different purposes. See Nat'l Steel Car,
Ltd. v. Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1339 (Fed. Cir. 2004) ("A
finding that two inventions were designed to resolve different problems . . .
is insufficient to demonstrate that one invention teaches away from
another."). It is sufficient that references suggest doing what Appellants did,
although the Appellants' particular purpose was different from that of the
references. In re Heck, 699 F.2d 1331, 1333 (Fed. Cir. 1983) (citing In re
Gershon, 372 F.2d 535, 539 (CCPA 1967)). For a prima facie case of
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Application 12/982,387
obviousness to be established, the reference need not recognize the same
problem solved by the Appellants. See In re Kemps, 97 F.3d 1427, 1430
(Fed. Cir. 1996).
We are not persuaded by Appellants' argument, and, in addition to the
Examiner's findings, supra, which we adopt as our own and incorporate
herein, we note the secondary reference, McDonnell, is merely cited for the
limited purpose of showing it is known to use a second color on a display as
a visual indication.
Appellants further contend neither Hikita nor McDonnell discloses
disputed limitation LI, the scale automatically determining its online or
offline status by monitoring the communications interface. Br. 10.
Appellants further argue neither reference teaches limitation L3, i.e., while
the scale is offline of the network, presenting the potion of the operator
interface via the operator interface screen in a second color that is different
than the first color. Br. 13—14.
We are unpersuaded by Appellants' arguments and agree with the
Examiner's finding that Hikita's scales determine whether they are operating
online or offline. Ans. 9, citing Hikita, Col. 19,11. 30-35. We agree with
the Examiner's finding because Hikita's description of using registered data,
which is applied to electronic scales, in either an on-line or off-line basis,
teaches or at least suggests the disputed limitation LI. Id. Furthermore, we
find Hikita's off-line mode also teaches the limitation "while the scale is
offline of the network." Id.
We also agree with the Examiner's finding McDonnell's white
background color display of machine #13, which is an off-line machine,
teaches or at least suggests the disputed limitation L3. Ans. 9, citing
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Application 12/982,387
McDonnell, Fig. 3, ^ 38. We agree with the Examiner's finding because
Fig. 3 shows machine #13 having zero cycles, hence not operating on-line,
and shows a display screen with multiple colors. McDonnell, Fig. 3.
Appellants point to the Declarations of Larry Pevoar and James Meyer
in support of their arguments. Br. 10—11 (citing App. Brief, Exs. 1 and 2).
Regarding the Declarations of Pevoar and Meyers, provided in Exhibits 1
and 2 of Appellants' Brief, we find Meyer's declaration to be insufficient to
overcome the prima facie case of obviousness, because we do not find a
sufficient nexus between the application's claimed different colored display
alert and Meyer's opinion of the achieved level of commercial success of the
sales of scale products incorporating a scale offline indication method. One
reason we do not find any sufficient nexus is that Meyer's declaration lacks
any quantitative evidence of commercial success of the scales due to one or
more claim limitations other than an unsupported assertion. Furthermore,
the Sales Training Brochure, provided in Exhibit 2, is merely a marketing
document that also lacks any quantitative evidence of commercial success,
i.e., evidence of increased sales of scales due to the touted and claimed
offline-alert display feature.
Evidence of commercial success, or other secondary considerations, is
only significant if there is a nexus between the claimed invention and the
commercial success. As our reviewing court explained in J.T. Eaton & Co.
v. Atlantic Paste & Glue Co., 106 F.3d 1563 (Fed. Cir. 1997), "[w]hen a
patentee can demonstrate commercial success, usually shown by significant
sales in a relevant market, and that the successful product is the invention
disclosed and claimed in the patent, it is presumed that the commercial
success is due to the patented invention." Id. at 1571; see also Brown &
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Williamson Tobacco Corp. v. Philip Morris Inc., 229 F.3d 1120, 1130 (Fed.
Cir. 2000) (stating the presumption that commercial success is due to the
patented invention applies "if the marketed product embodies the claimed
features, and is coextensive with them.").
Here, we are not persuaded by Appellants' arguments that the
evidence as a whole, taking into account asserted, but unproven evidence of
secondary considerations outweighs the Examiner's prima facie case of
obviousness.
Further to this point, and regarding Pevoar's Declaration in Exhibit 1,
we find that in statements 3(a) and (b) the declarant is arguing against the
references separately. In particular, regarding item 3(a), we note the
Examiner cites McDonnell, not Hikita, to teach the limitation of a "second
color that is different from the first color" as an indicator that the scale has
gone offline. Final Act. 2—3. Regarding item 3(b), the Examiner also cites
Hikita to teach claim term "offline." Ans. 9.
In statement 3(c), Pevoar asserts neither reference teaches that "a
given machine or device should monitor its own online/offline status and
provide an indication of that status by changing its own display screen." Br.,
Ex. 1. However, we agree with the Examiner that Hikita's electronic scales
receive data differently depending on whether the scale is online (connected
to another personal computer) or offline. Thus, we find Hikita's scales
monitor whether the scale is online or offline. Final Act. 3; Ans. 9, citing
Col. 19, 9—35, Fig. 3. Therefore, we are not persuaded by Mr. Pevoar's
declaration, and find Hikita's scales' online/offline status teaches or at least
suggests disputed limitation LI, "the scale automatically determining its
online or offline status by monitoring the communications interface."
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We note Appellants do not file a Reply Brief to rebut the Examiner's
findings and legal conclusions.
Accordingly, we find Appellants have not provided sufficient
evidence or argument to persuade us of any reversible error in the
Examiner's reading of the contested limitations on the cited prior art.
Therefore, we sustain the Examiner's obviousness rejection of independent
claim 1 and grouped claim 2 which falls therewith. See Claim Grouping,
supra.
2. Rejection R1 of Claim 5
Issue 2
Appellants argue (Br. 19) the Examiner's rejection of claim 5 under 35
U.S.C. § 103(a) as being obvious over the combination of Hikita and
McDonnell is in error. These contentions present us with the following
issues:
Did the Examiner err in combining the cited prior art in the manner
suggested to reject claim 5 under § 103 because, purportedly, "[t]he
Examiner claims that Hikita discloses at least one of these methods of
monitoring the communication network" {id.), when in fact "Hikita was filed
in December 1988 long before Windows messaging existed." (Br. 20)?
Analysis
Claim 5 recites:
The method of claim 1 wherein the monitoring is achieved by
one or more of:
utilizing Windows messaging within the scale to identify
when there is a loss of connectivity; or
the scale repeatedly pinging a Server IP Address; or
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the scale repeatedly pinging a scale management PC IP
address; or
the scale includes a web browser and a default browser
homepage is used to identity an IP address, and repeatedly
pinging the identified IP address.
Br. 32.
Appellants contend Hikita does not address the limitations of claim 5
both because Hikita, filed in 1988 before Windows messaging existed,
predates the use in the art of the elements of these limitations and also
because the Examiner's citations in Hikita do not teach or suggest any of the
limitations including offline status by pinning an IP address of the server, IP
address or scale management PC, or an IP address identified using a default
browser. Br. 20.
For essentially the same reasons argued by Appellants (id.), we
reverse the Examiner's rejection of dependent claim 5.3
3. Rejection R1 of Claims 6 and 7
Issue 3
Appellants argue (Br. 20—21) the Examiner's rejection of dependent
claims 6 and 7 under 35 U.S.C. § 103(a) as being obvious over the
combination of Hikita and McDonnell is in error. These contentions present
us with the following issue:
3 We note an additional issue for consideration is whether claim 5 should be
rejected under the doctrine of non-statutory obviousness-type double
patenting over claim 2 of parent application 11/633,240, issued Feb. 8, 2011,
as US 7,886,230. While the Board is authorized to reject claims under
37 C.F.R. § 41.50(b), no inference should be drawn when the Board elects
not to do so. See Manual of Patent Examining Procedure (MPEP)
§ 1213.02.
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Application 12/982,387
Did the Examiner err in finding the cited prior art combination teaches
or suggests "while the scale is offline of the network, a message box is
displayed advising the operator that the scale is offline," as recited in
claim 6?
Analysis
Appellants contend "the combination of Hikita and McDonnell fails to
disclose that "while the scale is offline of the network, a message box is
displayed advising the operator that the scale is offline," which is required
by claims 6 and 7. Br. 21.
Appellants contend McDonnell doesn't disclose the disputed
limitation "a message box," arguing "[a]ll McDonnell describes is that the
number of cycles shows 0 when the machine is not running. See
McDonnell, Figure 3 and 1 [0038]." Id.
We agree with the Examiner's finding McDonnell's display 50, which
shows a white-colored background depicting an offline machine 13, teaches
or at least suggests the disputed claim limitation "message box" as recited in
claim 6. Ans. 13—14, McDonnell, Fig. 3. We agree with the Examiner
because Appellants do not point to a definition in their Specification of a
"message box" that would preclude the Examiner's broad but reasonable
interpretation.4
4 Any special meaning assigned to a term "must be sufficiently clear in the
specification that any departure from common usage would be so understood
by a person of experience in the field of the invention." Multiform
Desiccants Inc. v. Medzam Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998); see
also Helmsderfer y. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381
(Fed. Cir. 2008) ("A patentee may act as its own lexicographer and assign to
a term a unique definition that is different from its ordinary and customary
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Accordingly, Appellants have not provided sufficient evidence or
argument to persuade us of any reversible error in the Examiner's reading of
the contested limitations on the cited prior art. Therefore, we sustain the
Examiner's obviousness rejection R1 of dependent claim 6 and Rejection R1
of associated dependent claim 7, which falls therewith. See Claim
Grouping, supra.
4. Rejection R1 of Claims 12 and 16
Issue 4
Appellants argue (Br. 21—27) the Examiner's rejection of claims 12
and 16 under 35 U.S.C. § 103(a) as being obvious over the combination of
Hikita and McDonnell is in error. These contentions present us with the
following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests the "color condition can be viewed by an operator from at least
twenty feet away," as recited in claim 12?
Analysis
Appellants contend:
Claim 12 includes that "the color condition can be viewed by an
operator from at least twenty feet away" (emphasis added).
Neither Hikita nor McDonnell discloses the color condition
capable of being viewed from at least twenty feet away by an
operator. The Examiner does not cite any part of either Hikita
or McDonnell to show where this limitation is disclosed.
Br. 22.
meaning; however, a patentee must clearly express that intent in the written
description.").
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We find the Examiner does not address the "color condition can be
viewed by an operator from at least twenty feet away" limitation. Final
Act. 5; Ans. 15—16. For essentially the same reasons argued by Appellants
(Br. 21—27), we reverse the Examiner's rejection R1 of independent claim
12, and rejection R1 of claim 16, which depends therefrom.5
5. Rejection R2 of Claim 3
Issue 5
Appellants argue (Br. 27—30) the Examiner's rejection of claim 3
under 35 U.S.C. § 103(a) as being obvious over the combination of Hikita,
McDonnell and Ramsden is in error. These contentions present us with the
following issue:
Did the Examiner err in combining the cited prior art in the manner
suggested to reject claim 3 under § 103 because, purportedly, "Ramsden is
non-analogous art" (Br. 29)?
Analysis
Appellants contend "Ramsden is non-analogous art to the claimed
subject matter." Br. 28. Appellants explain "[t]he field of endeavor of the
claimed subject matter is providing networked scales for weighing food
products in retail stores, including supermarkets," whereas Ramsden "is in
the field of endeavor of the commercial shipping and delivering industry."
5 We note an additional issue for consideration is whether claim 12 should
be rejected under the doctrine of non-statutory obviousness-type double
patenting over claim 1 of parent application 11/633,240, issued Feb. 8, 2011,
as US 7,886,230. While the Board is authorized to reject claims under
37 C.F.R. § 41.50(b), no inference should be drawn when the Board elects
not to do so. See Manual of Patent Examining Procedure (MPEP)
§ 1213.02.
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Id. Appellants assert "[a] person of ordinary skill in the art would not
consult references in the package shipping and delivery industry." Id.
Appellants also argue Ramsden is not pertinent to the problem of
providing an indication or alert to a scale operator that the scale is offline
from a network and is, therefore, unable to receive price updates. Br. 29.
As pointed out above (Issue 1), whether a reference in the prior art is
"analogous" is a fact question. Clay 966 F.2d at 658. Two criteria have
evolved for determining whether prior art is analogous: (1) whether the art
is from the same field of endeavor, regardless of the problem addressed, and
(2) if the reference is not within the field of the inventor's endeavor, whether
the reference still is reasonably pertinent to the particular problem with
which the inventor is involved. Id.
Here, the Examiner cites Ramsden for the limited purpose of teaching
or at least suggesting "a touch screen display." Final Act. 6—7, citing
Ramsden 193. However, we agree with the Examiner's finding Ramsden is
in fact analogous art because it is in the same field of endeavor as it also
teaches a weighing system with a customer interface. Ans. 19; Ramsden,
Abstract.
We again note Appellants do not file a Reply Brief to rebut the
Examiner's findings and legal conclusions.
Accordingly, we find Appellants have not provided sufficient
evidence or argument to persuade us of any reversible error in the
Examiner's factual findings and legal conclusion of obviousness. Therefore,
we sustain the Examiner's obviousness rejection R2 of dependent claim 3.
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CONCLUSIONS
(1) The Examiner erred with respect to obviousness Rejection R1
of claims 5, 12, and 16 under 35 U.S.C. § 103(a) over the cited prior art
combination of record, and we do not sustain the rejection.
(2) The Examiner did not err with respect to obviousness Rejection
R1 of claims 1, 2, 6, and 7 under 35 U.S.C. § 103(a) over the cited prior art
combination of record, and we sustain the rejection.
(3) The Examiner did not err with respect to obviousness Rejection
R2 of claim 3 under 35 U.S.C. § 103(a) over the cited prior art combination
of record, and we sustain the rejection.
DECISION
We reverse the Examiner's decision rejecting claims 5, 12, and 16.
We affirm the Examiner's decision rejecting claims 1—3, 6, and 7.
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-IN-PART
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