Ex Parte Novick et al

Patent Trial and Appeal Board

Feb 13, 2018

13062577 (P.T.A.B. Feb. 13, 2018)

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.
13/062,577 08/03/2011 Gregg Novick 11-023 5633
24124 7590 02/15/2018
ROHAN MATHFRS
EXAMINER
PO BOX 449 RISIC, ABIGAIL ANNE
PORTLAND, ME 04112-0449
ART UNIT PAPER NUMBER
3671
NOTIFICATION DATE DELIVERY MODE
02/15/2018 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):
peter @ bohanmathers .com
PMM@BOHANMATHERS.COM
jj oyce @ bohanmathers. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GREGG NO VICK and GARY VERRIL
Appeal 2017-010305
Application 13/062,577
Technology Center 3600
Before JENNIFER D. BAHR, FREDERICK C. LANEY, and
ANTHONY KNIGHT, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Gregg Novick and Gary Verril (Appellants)1 appeal under 35 U.S.C.
§ 134(a) from the Examiner’s decision rejecting claims 1 and 2 under
35 U.S.C. § 103(a) as unpatentable over Sansalone (US 2006/0032807 Al,
pub. Feb. 16, 2006) and Sanders (US 2006/0034652 Al, pub. Feb. 16,
2006). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to the Appeal Brief, the real party in interest is Porous
Technologies, LLC (hereinafter “Porous Technologies”). Br. 3.
Appeal 2017-010305
Application 13/062,577
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A porous paver comprising:
a paving element consisting solely of a porous concrete
made with coarse aggregate, so as to allow water to pass
through the porous concrete; and
a retrieval means embedded in the paving element, the
retrieval means comprising a receptacle that is incorporated into
the paving element and is adapted to receive a tool that is used
for removing and inserting the paving element into place in
a paved surface.
DISCUSSION
The Examiner rejected claims 1 and 2 under 35 U.S.C. § 103(a) as
unpatentable over Sansalone and Sanders. Non-Final Act. 2. Appellants
argue claims 1 and 2 together in contesting the rejection. Br. 6—13. We
decide the appeal of this rejection on the basis of claim 1, with claim 2
standing or falling with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv) (permitting
the Board to select a single claim to decide the appeal as to a single ground
of rejection of a group of claims argued together).
The Examiner found that Sansalone discloses a porous paver as called
for in claim 1, with the exception that “Sansalone fails to teach a retrieval
means.” Non-Final Act. 2. The Examiner found that Sanders teaches a
concrete block having embedded retrieval means as called for in claim 1,
and determined that it would have been obvious “to include the retrieval
means of Sanders in the paving element of Sansalone to allow the paving
element to be easily installed.” Id. at 2—3.
2
Appeal 2017-010305
Application 13/062,577
Appellants do not specifically contest either the Examiner’s findings
or the Examiner’s articulated reason for the combination, nor do Appellants
dispute that the combination would result in the claimed invention.
However, Appellants argue that they have provided evidence showing that
the claimed invention fulfills a long-felt need and has achieved commercial
success in the field. Br. 6—13, 15 (“List of Appended Documents”). Thus,
the issue to be decided in this appeal is whether, after considering the totality
of the evidence before us, the evidence of obviousness of the subject matter
of claim 1 outweighs the evidence against obviousness. See Richardson—
Vicks Inc. v. Upjohn Co., 122 F.3d 1476, 1483 (Fed.Cir.1997) (holding that
“we must consider all of the evidence under the Graham factors before
reaching our decision”).2
The Evidence
Claim 1 recites “[a] porous paver.” Appeal Br. 14 (Claims App.).
According to the Specification, “pavers . . . according to the invention may
be any suitable shape and size,” including, “for example, pavers . . .
constructed as large slabs, as small regularly shaped blocks, or as
decoratively shaped elements.” Spec. 112.
Sansalone discloses a porous precast paver block of porous concrete
made with course aggregate. Sansalone Tflf 59, 60.
2 The Graham factors are (1) the scope and content of the prior art; (2) the
differences between the prior art and the claims at issue; (3) the level of
ordinary skill in the pertinent art; and (4) “[s]uch secondary considerations
as commercial success, long felt but unsolved needs, failure of others, etc.,
. . . [a]s indicia of obviousness or nonobviousness.” Graham v. John Deere
Co., 383 U.S. 1, 17-18 (1966).
3
Appeal 2017-010305
Application 13/062,577
Sanders teaches a pre-cast concrete plank 12 including lifting points
30 positioned near each comer of top surface 13 so the plank “can remain
level and balanced as it is lifted, transported, and lowered.” Sanders 146;
Fig. 3. Each lifting point includes insert 22 in recess 25. Id. 147; Fig. 6.
Lifting portion 23 of insert 22 is exposed in recess 25 so that a lifting
apparatus, such as a grappling hook, can be attached to the lifting portion to
lift pre-cast plank 12. Id. 147. In other words, the lifting points of Sanders
facilitate the lifting, transporting, and lowering necessary for installation and
removal of concrete paver elements.
The Affidavit of William M. Leo, dated April 23, 2014 (hereinafter
“Leo Affidavit” or “Leo Aff”) states that Leo, Senior Vice-President of
HDR Engineering, Inc. and a consulting engineer “working in the specialty
area of stormwater and combined sewer overflow impacts and mitigation”
for 20 years, is working on a number of projects in which HDR plans to
specify porous concrete materials and, to Leo’s knowledge, no other
company, other than Appellant Gregg Novick’s company, offers a precast
porous concrete slab with permanent lifting points (i.e., “retrieval means”) as
disclosed in the present application. Leo Aff. || 3—7, 15.3
The Affidavit of Gregg Novick dated April 24, 2014 (hereinafter
“Novick I Affidavit” or “Novick I Aff”) states that Novick is President of
Porous Technologies (12); Novick visited several Public Works
Departments in the period from June 2011 to fall of 2013 (| 4); during those
visits, each Public Works Department recognized the advantages and
benefits of using a porous concrete paver with permanent lifting means to
3 The Leo Affidavit entered into the record for the present application (May
9, 2014) includes only pages 1 and 3 (paragraphs 1—7 and 15).
4
Appeal 2017-010305
Application 13/062,577
permit pavers to be removed for cleaning and be reinstalled (15); those
Public Works Departments never considered using porous concrete for
certain applications, such as bioswales, because conventional porous
concrete plugs up and becomes unusable over time (1 6); since those visits,
several municipalities have specified the use of the porous paver with lifting
means in stormwater control projects, in some cases specifically requiring
such pavers to be made according to Novick’s specifications (17). The
Novick I Affidavit also states that the ability of the porous paver with lifting
means to be removed for cleaning and be re-installed “has opened up a
whole new application for porous pavers” (1 6).
The Affidavit of Richard P. Mastoloni, dated August 23, 2015
(hereinafter “Mastoloni Affidavit” or “Mastoloni Aff”) states that Mastoloni
prepared an analysis of market share for precast porous concrete
pavers/slabs, with and without lifting points, acquired by Porous
Technologies in the past few years (1 6), and that the analysis shows that
Porous Technologies “clearly dominates the market for precast porous
concrete slabs and [is] the only provider of precast porous concrete slabs
with lifting points” (17).
Mastoloni’s market analysis report (Exhibit P) states that the evolving
state of environmental awareness has generated a need for construction
materials that allow infiltration of stormwater into the groundwater supply
and that porous surfaces are used to achieve this goal. Exh. P 1. However,
according to the report, the use of porous pavement has been limited to
specific applications because of certain tradeoffs with historical porous
products. Id. The report discusses disadvantages of poured-in-place porous
concrete and permeable interlocking concrete pavers. Id. at 2. The report
5
Appeal 2017-010305
Application 13/062,577
states that precast porous concrete slabs are the newest product in the
permeable pavement market and have been designed to compensate for the
many challenges presented by alternative porous pavement materials. Id.
Mastoloni’s report states that precast concrete slabs are a growing segment
of the larger porous pavement market and the Stormcrete® precast porous
concrete product, which includes permanent lifting points embedded in the
surface, is pioneering their use. Id. at 3. The permanent lifting points of the
Stormcrete® product “provide a means for removing, replacing[,] or
accessing the subgrade below the slabs at any point during their service life.”
Id. at 3.
As part of the market share analysis, Mastoloni conducted an internet
search for precast porous concrete with lifting points, which revealed two
alternative products (Percoa Slabs by Percoa, USA, LLC, and Replenish™
by Spancrete), in addition to the Stormcrete® product. Id. The Percoa and
Replenish™ hits were determined to be “false positives,” in that no mention
of porous or pervious concrete slabs was found in association with these
products. Id. at 4; see Exh. Q (Appendix I) 2—3. An internet search
conducted using the parameter “Precast Porous Concrete” yielded eight
references related to cast-in-place porous concrete (with no applicability to
precast porous, or pervious, concrete slabs), twelve references naming
Stormcrete® as the specified product, two references to precast porous slabs
generically, one reference to perforated porous pipes, and one reference to
precast porous pavers, which the report characterizes as “typically
dimensioned much smaller than slabs and unrelated to the search being
6
Appeal 2017-010305
Application 13/062,577
conducted.”4 Exh. P 5. On the basis of this data, the report determined that
the Stormcrete® system has the only precast porous concrete slab product
with any meaningful history, in terms of being specified in projects out to
bid, completed construction projects, etc., and “[o]f all the searches
conducted, only one reference was found to ‘permanent lifting points
embedded in the top slab’, that was not directly related to the Stormcrete®
System.” Id. The report concluded from the research conducted that Porous
Technologies “has the entire market share for the Precast Porous Concrete
Pavement with Lifting Points segment and the majority of market share in
the larger Precast Porous Concrete Pavement segment.” Id.
The Affidavit of Gregg Novick dated February 5, 2015 (hereinafter
“Novick II Affidavit” or “Novick II Aff”) states that Appellant Novick has
been marketing the Stormcrete® porous paver with lifting points (i.e.,
retrieval means) to municipalities since 2011, after doing a first
demonstration project with a municipality in 2010 (14), and that
municipalities had difficulties with porous concrete prior to the introduction
of the Stormcrete® porous paver with lifting points, including plugging with
sediment and debris over time, requiring demolition and removal of the old
concrete and pouring of new porous concrete (1 5). Notably, the Novick II
Affidavit refers to the Novick I Affidavit in support of the statement that
municipalities had such difficulties. Id. 1 5; see Novick I Aff. | 6 (stating
that, prior to being introduced to Novick’s product, the municipalites Novick
4 It is not entirely clear why the search focused on slabs, as distinguished
from other pavers, given that claim 1 recites “[a] porous paver” (Br. 14
(Claims App.)), not specifically a porous slab. Read in light of the
Specification, the claim term “paver” encompasses both large slabs and
smaller pavers. See Spec. 112.
7
Appeal 2017-010305
Application 13/062,577
visited never considered using porous concrete for certain applications, such
as bioswales, because conventional porous concrete plugs up and becomes
unusable over time). In the Novick II Affidavit, Novick asserts that the
Stormcrete® porous paver with lifting points fulfills a longfelt need in the
paving industry and has achieved commercial success (1 6). In support of
this assertion, the Novick II Affidavit includes as an appendix Exhibit J
containing lists of installations specifying the use of a porous concrete slab
with lifting points; the lists include “Installed Projects” from 2010—2014 of
relatively small size generating revenues totaling $882,485 and a “Current
Projects” list of 44 projects having planned completion dates in 2015 and
2016, with projected revenues totaling $4,098,864 7—8); Exh. J. The
Novick II Affidavit also details successful demonstration projects in New
York City using the Stormcrete® porous concrete system, including projects
valued at over $300,000 to $500,000 scheduled to be installed in 2016
(H 11—15). The Novick II Affidavit further states that news of the
Stormcrete® porous concrete system spread to municipalities in several other
states and that, after hearing how easily the Stormcrete® porous concrete
paver can be installed and replaced, several “municipalities have specified
the use of a porous concrete slab with lifting points in projects,” with one of
them (Syracuse, NY) banning the use of poured-in-place porous concrete
(116).
The Affidavit of Steve Roy, dated January 23, 2015 (hereinafter “Roy
Affidavit” or “Roy Aff.”) discusses difficulties (including quality assurance
issues, loss of infiltration capacity with time from debris and sediment,
requiring destruction and removal or costly and repetitive vacuum and
power washing) with poured-on-site porous concrete installations flflf 13—
8
Appeal 2017-010305
Application 13/062,577
14). The Roy Affidavit points out that the availability of the porous concrete
slab with lifting points permits innovative stormwater operation and
management structure that was not feasible previously (115), the inclusion
of lifting points on porous concrete slabs permits easy replacement and
maintenance, thereby lowering the overall life-cycle cost of the porous
surface (116), and municipalities are very concerned with the service life of
stormwater solutions (id.).
The Affidavit of Gregg Novick dated June 22, 2015 (hereinafter
“Novick III Affidavit” or “Novick III Aff”) avers that Exhibits L and M,
which show sales data for the porous paver with retrieval means, “are true
and accurate representations of [Porous Technology’s] sales thus far in the
year 2015.” Novick III Aff. 14. Exhibit L shows square footage and
revenue numbers for seven then-current projects using the Stormcrete®
system in 2015, ranging from around 2000 square feet and around $20,000
to over 15,000 square feet and over $240,000, totaling 48,630 square feet
and $598,755. Exhibit M is a chart showing annual sales for Porous
Technology’s porous paver with retrieval means in years 2011 through 2015.
The chart shows projected additional sales of $650,000 for 2015, but neither
the chart nor the Novick III Affidavit explains the basis for those
projections. Exh. M. According to the chart, Porous Technology’s annual
sales grew from under $200,000 in years 2011 through 2013, to just under
$400,000, and then to $984,000 ($386,000 year-to-date plus $598,000 orders
in-house) in 2015, with an additional $650,000 projected in 2015. Id.
The Affidavit of David Kirby, dated June 18, 2015 (hereinafter “Kirby
Affidavit” or “Kirby Aff”), states that Kirby has expertise in “erosion and
sediment control, construction management, post-construction Best
9
Appeal 2017-010305
Application 13/062,577
Management Practice (BMP) design, stormwater quality, management and
compliance” (13) and is “a Water Quality Engineer for the Ventura County
Watershed Protection District in California” (| 4). The Kirby Affidavit
states that “[pjrior to finding out about the Stormcrete™ system, it appeared
that the best way to retrofit a parking lot to capture and infiltrate stormwater
runoff was to use cast-in-place porous concrete constructed directly on site”
(1 7) and that Kirby had reservations about cast-in-place concrete because of
known quality control issues and maintenance concerns, as well as known
problems with plugging of porous pavement over time with sediment and
debris (1 8). According to the Kirby Affidavit, “[t]he conventional remedy
for plugged porous concrete is simultaneous pressure washing and
vacuuming of the surface,” but this remedy has limited effectiveness and
over time porous concrete becomes ineffective for filtration, at which time it
must be ripped up and replaced with new cast-in-place porous pavement
(19). Such efforts are costly and present a deterrent to implementing porous
concrete for stormwater management (id.). The Kirby Affidavit states that
new cast-in-place concrete in parking lots was initially effective for
infiltration of stormwater, but showed rapid clogging from sediment and
debris during both wet and dry weather conditions (111). The Kirby
Affidavit also states that Kirby chose Porous Technologies to supply pre­
cast porous concrete elements because of the anticipated cost savings
associated with the lifting points of the concrete panels, which facilitate
installation and temporary removal, “allowing for more effective
maintenance” flflf 13—14).
10
Appeal 2017-010305
Application 13/062,577
Analysis of the Evidence
The teachings of Sanders in paragraphs 46 and 47, discussed supra,
would have provided a strong incentive for one having ordinary skill in the
art to provide lifting points on Sansalone’s porous pre-cast paver block in
order to achieve the benefit of facilitating lifting, transporting, and lowering
for installation and removal of concrete paver elements taught by Sanders.
A person having ordinary skill in the art would have immediately
appreciated that such lifting points would improve Sansalone’s porous pre­
cast paver block in the same way they improve the pre-cast concrete plank of
Sanders. “[I]f 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 Int 7 Co. v. Teleflex Inc.,
550 U.S. 398, 417 (2007). Appellants do not assert, nor do we discern from
the record, any reason why applying the lifting points technique to
Sansalone’s porous paver block would have been beyond the technical grasp
of one of ordinary skill in the art.
The rapid increase in sales, project size, and revenues from 2011 to
2015, as shown in Exhibit M, establishes some degree of commercial
success of the Stormcrete® system. Further, the internet searches discussed
in the Mastoloni Affidavit reveal a dominant online presence of the
Stormcrete® product in the precast porous concrete pavement segment of the
market, although the objective evidence presented in Mastoloni’s market
analysis is insufficient to establish any quantifiable market share in this
segment, nor does it reasonably support Mastoloni’s conclusion that Porous
Technologies has the majority of market share in this segment (Exh. P 5).
11
Appeal 2017-010305
Application 13/062,577
See In re Huang, 100 F.3d 135, 140 (Fed. Cir. 1996) (suggesting that a
primary consideration in demonstrating actual commercial success is
whether sales of the claimed invention have produced a substantial share of
the marketplace).
Appellants argue that the Novick I Affidavit, the Novick II Affidavit,
the Leo Affidavit, the Roy Affidavit, and the Kirby Affidavit show that the
claimed invention “is fulfilling a long-felt need in the field of stormwater
management.” Appeal Br. 8—12.
As explained by our reviewing court:
Longfelt need is closely related to the failure of others.
Evidence is particularly probative of obviousness when it
demonstrates both that a demand existed for the patented
invention, and that others tried but failed to satisfy that demand.
See, e.g.,In re Piasecki, 745 F.2d 1468, 1475 (Fed.Cir.1984)
(finding nonobviousness where the evidence demonstrated a
failure of others to provide a feasible solution to a longstanding
problem); Alco Standard Corp. v. Tenn. Valley Auth., 808 F.2d
1490, 1500 (Fed.Cir.1986) (affirming a nonobviousness finding
where the evidence showed that the relevant industry had
searched for more than a decade for a reliable solution and that
major manufacturers in the industry had tried but failed to
develop such a solution).
In re Cyclobenzaprine Hydrochloride Extended-Release Capsule Patent
Litigation, 676 F.3d 1063, 1081—83 (Fed. Cir. 2012); but see In re Depomed,
Inc., 680 Fed. App’x. 947, 952—53 (Fed. Cir. 2017) (non-precedential)
(stating, “While ‘ [e] vidence is particularly probative of obviousness when it
demonstrates both that a demand existed for the patented invention, and that
others tried but failed to satisfy that demand,’ a patent owner may establish a
long-felt but unmet need without presenting evidence of failure of others.”)
12
Appeal 2017-010305
Application 13/062,577
(quoting In re Cyclobenzaprine, 676 F.3d at 1082), petition for cert, filed,
No. 17-114 (U.S. July 21, 2017).
The Novick I Affidavit establishes only that the Public Works
Departments to whom Novick introduced his porous paver with permanent
lifting means product recognized the advantages afforded by the permanent
lifting means (| 5). Although these Departments had never before
considered using porous concrete for certain applications because of
problems with plugging (| 6), and decided to specify Novick’s porous paver
with lifting means in future projects (17), the Novick I Affidavit provides no
evidence that these Departments felt any need for a porous paver that could
be easily removed for cleaning and reinstalled prior to learning of the
present invention. For example, there is no evidence the Departments had
ever previously sought or requested a porous paver that could be easily
removed for cleaning and then reinstalled. Moreover, to the extent these
municipalities had recognized a problem with using porous pavers that
created a specific need for making them capable of being easily removed
and reinstalled, the Novick I Affidavit provides no objective evidence
showing when this need was recognized, so as to establish it was “long-felt,”
much less any evidence of any interest or attempts to solve them. As noted
above, although not necessarily required to show long-felt need, evidence of
such interest or attempts is particularly probative.
The Novick II Affidavit discusses difficulties municipalities had with
porous concrete installations prior to Novick’s invention (| 5), but does not
provide any objective evidence showing when such difficulties were
recognized, or showing that those in the field viewed those difficulties as
needing a solution. In particular, the Novick II Affidavit referred to the
13
Appeal 2017-010305
Application 13/062,577
Novick I Affidavit in support of the statements regarding difficulties
municipalities had with porous concrete installations (id.). As discussed
above, those municipalities simply chose not to use porous concrete because
of problems with plugging, rather than evincing a need or motivation to
provide an easily removable and replaceable porous concrete slab product.
Indeed, there is no objective evidence that the municipalities visited by
Novick felt any such need prior to being introduced to Novick’s product. To
the extent that these municipalities had recognized problems with porous
concrete installations prior to learning of the present invention, the Novick II
Affidavit again provides no objective evidence showing when such problems
were recognized, so as to establish a need had been “long-felt.”
The Leo Affidavit states that Leo is not aware of any company, other
than Novick’s company, that offers a precast concrete slab with permanent
lifting points (115), and that Leo plans to specify porous concrete material
on a number of projects (17). The Leo Affidavit, however, provides no
evidence there was a long-felt need in the field for a porous paver that could
be easily removed for cleaning and reinstalled.
The Roy Affidavit discusses difficulties with poured-on-site porous
concrete installations flflf 13—14) and states that the inclusion of lifting points
on porous concrete slabs permits easy replacement and maintenance, thereby
lowering the overall life-cycle cost of the porous surface (115). The Roy
Affidavit also states that municipalities are very concerned with the service
life of stormwater solutions (115). However, the Roy Affidavit does not
provide any objective evidence as to when municipalities, or others in the
field, affirmatively recognized the difficulties with poured-on-site porous
concrete installations described by Roy, or that these problems were
14
Appeal 2017-010305
Application 13/062,577
recognized in the field as needing a solution prior to the presentation of
Novick’s solution in the form of lifting points on pre-cast porous concrete
slabs.
The Kirby Affidavit states, prior to learning about the Stormcrete®
system, the best porous concrete alternative known was cast-in-place porous
concrete (17), but Kirby had reservations about using this alternative
because of known problems with plugging requiring costly maintenance and
eventual replacement 8—9) and, once Appellants’ pre-cast porous
concrete product became available, Kirby chose to use it in future
installations (]Hf 13—14). The Kirby Affidavit lacks any objective evidence
showing when Kirby, or others in the field, recognized these problems. Nor
does Kirby offer any evidence that there was interest in solving the known
problems with cast-in-place concrete prior to the availability of Novick’s
porous concrete slab with lifting points.
In sum, rather than establishing that the claimed invention fulfills a
long-felt need in the field of stormwater management, the affidavits relied
on by Appellants show only that there were problems or disadvantages with
the known porous concrete alternatives prior to Appellants’ invention and
that, once Appellants’ invention became known, many in the field chose to
employ it as an improvement over the alternatives previously known. These
affidavits do not provide objective evidence showing when such problems
were recognized by those in the field, so as to establish a need that was long-
felt. Nor do they show those in the field had long been motivated to provide
a porous paver that could be easily removed for cleaning and reinstalled,
instead of just using those existing alternatives where feasible.
15
Appeal 2017-010305
Application 13/062,577
After considering the totality of the evidence before us, we conclude
that the evidence of obviousness of the subject matter of claim 1 outweighs
the evidence against obviousness. Accordingly, we sustain the rejection of
claim 1, as well as the rejection of claim 2, which falls with claim 1, as
unpatentable over Sansalone and Sanders.
DECISION
The Examiner’s decision rejecting claims 1 and 2 is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
16