Ex Parte Ratcliffe

Patent Trial and Appeal Board

Sep 23, 2016

12525460 (P.T.A.B. Sep. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/525,460 02/16/2010 Anthony Ratcliffe
31554 7590 09/27/2016
CARTER, DELUCA, FARRELL & SCHMIDT, LLP
445 BROAD HOLLOW ROAD
SUITE420
MELVILLE, NY 11747
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.
1414-14 PCT US 7998
EXAMINER
IWAMAYE, ANDREW MICHAEL
ART UNIT PAPER NUMBER
3774
NOTIFICATION DATE DELIVERY MODE
09/27/2016 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):
docket@cdfslaw.com
tgiordano@cdfslaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANTHONY RATCLIFFE
Appeal2014-009578
Application 12/525,460
Technology Center 3700
Before JENNIFER D. BAHR, LINDA E. HORNER, and
BRANDON J. WARNER, Administrative Patent Judges.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Anthony Ratcliffe ("Appellant") 1 appeals under 35 U.S.C. § 134(a)
from the Examiner's decision rejecting claims 1---6, 8, 15-17, 19, 21, and
23-27. See Br. 1. Claims 7 and 18 have been canceled, and claims 9-14,
20, 22, and 28-33 have been withdrawn. See id. at 14--19, Claims App. We
have jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
According to Appellant, the real party in interest is Synthasome, Inc.
Br. 2.
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Application 12/525,460
CLAIMED SUBJECT MATTER
Appellant's disclosed invention relates to "[s]ynthetic structures for
the repair of soft tissue." Spec., p. 1, 1. 7. Claim 1, reproduced below, is the
sole independent claim and is representative of the subject matter on appeal.
1. A bioabsorbable implant comprising a planar fibrillar
structure having at least one secured folded edge portion,
wherein the planar fibrillar structure exhibits a failure strain of
from about 105 % to about 150 % of its original length.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Chin us 5,922,026 July 13, 1999
Hayes us 6,031,148 Feb.29,2000
Anderson US 6,648,921 B2 Nov. 18, 2003
Dauner US 6,773,459 B2 Aug. 10, 2004
Matsuda WO 2004/050133 A2 June 17, 2004
REJECTIONS
The following rejections are before us for review:
I. Claims 16, 17, 19, and 23 stand rejected under 35 U.S.C. § 112,
second paragraph, as being indefinite.2
2 The Examiner notes that, although the Final Action did not reproduce
the indefiniteness rejection from the preceding Non-Final Action, the
rejection remains of record and has not been withdrawn. See Ans. 2; see
also Non-Final Act. 2-3. Because Appellant's Brief presents arguments
against this rejection, it appears that Appellant understands this rejection as
being before the Board on appeal (see Br. 2-3), and, accordingly, we review
the rejection infra.
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IL Claims 1---6, 8, 15, 17, 19, 21, and 25-27 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Matsuda and
Anderson.
III. Claims 1, 2, 4, 8, 15, 21, and 23-27 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Hayes and
Matsuda.
IV. Claims 1, 5, 15, and 16 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Matsuda, Dauner, and Chin.
ANALYSIS
Rejection I - Claims 16, 17, 19, and 2 3 as indefinite
Appellant argues Rejection I of claims 16, 17, 19, and 23 as a group.
See Br. 2-3. We select claim 16 as the representative claim to decide the
appeal of the rejection of these claims, with claims 17, 19, and 23 standing
or falling therewith. See 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner found that the term "about," as recited in these claims,
"is a relative term which renders the claim[ s] indefinite" because the term
"is not defined by the claim, the [S]pecification does not provide a standard
for ascertaining the requisite degree, and one of ordinary skill in the art
would not be reasonably apprised of the scope of the invention." Non-Final
Act. 2-3. The Examiner clarifies in the Answer that, "[a]lthough the
[S]pecification provides graphs in Figures 2--4 and 6-8 and examples of
values in Tables 1-3, these Figures and examples do not provide a consistent
degree as to what comprises 'about' in the claim language." Ans. 3. The
Examiner also explains that the "broad" disclosure in the Specification
regarding mechanical properties of human tendons and/or ligaments does not
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provide any clarity because "[h]uman fibrous tissue, tendons, and ligaments
have varying ranges of mechanical properties, depending on the type of
tissue, tendon, or ligament." Id.
Appellant argues that the term "about" is not indefinite because "a
person of ordinary skill in the art would have understood the meaning of the
term 'about' with respect to a numerical value of a measured property of a
fibrillar structure which exhibits mechanical properties of human tissue as
recited in the claims." Br. 3 (citing Spec., p. 2, 11. 21-23; MPEP
§ 2173.05(b )). This argument does not persuade us of error because the
assertion amounts to mere attorney argument unsupported by objective
evidence. See In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Although
the term "about" is not necessarily always indefinite, Appellant offers no
evidence or persuasive technical reasoning to support the argument that the
scope of the term "about," as recited in the claims, would be understood by a
person having ordinary skill in the art in light of the Specification.
Appellant argues that the Specification "presents numerical ranges for
mechanical properties of meshes in accordance with the disclosed fibrillar
structures in Tables 1-3, and compares the sample data with tissue data in
FIGS. 2--4 and 6-8." Br. 3. We are not persuaded by this argument
because, as explained by the Examiner, "these [f]igures and examples do not
provide a consistent degree as to what comprises 'about' in the claim
language." Ans. 3. The Specification fails to provide any clarifying
standard by which to determine the metes and bounds of the term as recited
in the claims.
Appellant argues that "the term 'about' should be given its ordinary
and accepted meaning of 'approximately."' Br. 3. This argument is not
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convincing because the ordinary meaning of "about" does not lend any more
clarity to the scope of the term as recited in the claim. See Merriam-
Webster 's Collegiate Dictionary (I Ith ed. 2003) (defining "about" as
"reasonably close to"). Additionally, each of claims 16, 17, 19, and 23
recites the term with respect to distinct units of measurement (e.g.,
Newtons/millimeter, Newtons, fibers/inch, microns). See Br. 16, Claims
App. As such, the term "about" could have a different meaning, or imply a
different range, in each claim, thereby creating confusion regarding the
scope of the term intended by Appellant.
Accordingly, for the foregoing reasons, we sustain the rejection of
claim 16, and of claims 17, 19, and 23 falling therewith, under 35 U.S.C.
§ 112, second paragraph, as being indefinite.
Rejection II - Claims 1-6, 8, 15, 17, 19, 21, and 25-27 as unpatentable
over Matsuda and Anderson
Appellant argues Rejection II of claims 1---6, 8, 15, 17, 19, 21, and
25-27 as a group. See Br. 4--7. We select independent claim 1 as the
representative claim to decide the appeal of the rejection of these claims,
with claims 2---6, 8, 15, 17, 19, 21, and 25-27 standing or falling therewith.
The Examiner found that Matsuda teaches a bioabsorbable implant,
substantially as claimed, except for "the structure to having at least one
secured folded edge portion." Final Act. 3. Next, the Examiner found that
"Anderson ... teaches a bioabsorbable textile tissue support wherein two
opposite edges of the support form secured folded edge portions (see
Figures), wherein the folded edge portions are affixed to the support by
stitches (see Figure 7) or a fibrin adhesive (see col. 9, 11. 26-37)." Id. The
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Examiner concluded that, given the teachings of the prior art, "it would have
been obvious to one having ordinary skill in the art at the time of the
invention to modify the implant of Matsuda such that it has at least one
secured folded edge portion, as taught by Anderson, in order to provide
adjustability to the implant when used in urological applications." Id. at
3--4.
Appellant argues that "Anderson's article has not been shown to have,
inter alia, 'at least one secured folded edge portion,' as recited in claim 1."
Br. 5. In particular, Appellant asserts that "Anderson's folds 20B and 20C
are disposed along an axis transverse to the longitudinal axis of the article,
and axially inward from the edge portions of the article by filament elements
21B-24B secured about the center of the longitudinal axis." Id. According
to Appellant, "a person of ordinary skill in the art would have understood
that the fold must be axially inward of the points of attachment of
Anderson's article." Id. (emphasis added). We are not persuaded by
Appellant's argument, which is not commensurate in scope with
representative claim 1.
As stated by our reviewing court in In re Hiniker Co., 150 F.3d 1362,
1369 (Fed. Cir. 1998), "the name of the game is the claim." It is well
established that limitations not appearing in the claim cannot be relied upon
for patentability. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982). Here,
claim 1 only recites, in relevant part, "a planar fibrillar structure having at
least one secured folded edge portion." Br. 14, Claims App. In this regard,
the Examiner correctly notes that "the claim language does not require the
edges to be at longitudinally opposite ends of the device." Ans. 4. We agree
with the Examiner that Figure 7 of Anderson, particularly as highlighted by
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Application 12/525,460
the annotations in the Answer, shows at least one secured folded edge
portion. See id. As explained by the Examiner, annotated Figure 7 of
Anderson includes dotted lines to identify the edge portions along the
periphery of the device where the folds are secured by stitches or adhesive.
See id. Thus, Appellant does not apprise us of error in the Examiner's
findings with respect to Anderson, which are supported by a preponderance
of the evidence.
Appellant argues that the reasoning articulated by the Examiner in
support of the conclusion of obviousness lacks rational underpinnings. Br. 5
(citing Final Act. 3--4). In particular, Appellant asserts that "[t]he reason
proffered by the Examiner to explain why a person of ordinary skill in the
art would have sought to modify Matsuda's implant in view of Anderson's
article is related to problems associated with the positioning of a urinary
sling, and not cellularizable implants for tissue regeneration." Id. at 6-7.
We are not persuaded by Appellant's argument. We note that the reason to
modify a reference may often prompt a person of ordinary skill in the art to
do what the inventor has done, but for a different purpose or to solve a
different problem; it is not necessary that the prior art suggest the
modification to achieve the same advantage or result discovered by an
applicant. See, e.g., In re Kahn, 441 F.3d 977, 987 (Fed. Cir. 2006); see also
KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 421 ("A person of ordinary skill
is also a person of ordinary creativity, not an automaton.").
Here, the Examiner explains that "Matsuda and Anderson are both
concerned with fibrillar devices that are (1) a tissue support and tissue
reinforcement and (2) cellularizable and regenerative." Ans. 5. Specifically,
in addition to regenerative and cellularizable uses, "Matsuda ... teaches for
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the device to be used for reinforcing and supporting tissue." Id. (citing
Matsuda, p. 90, 1. 31 -p. 91, 1. 8). Further, "Anderson is concerned with
supporting and reinforcing tissues (e.g. it is a bladder support/
reinforcement)" and "teaches the device to encourage tissue ingrowth." Id.
(citing Anderson, col. 6, 1. 64- col. 7, 1. 3; col. 7, 11. 32--45; col. 8,
11. 31--43). According to the Examiner:
Based on these similarities, one having ordinary skill in the art
would have looked to Anderson to modify Matsuda in order to
render the generic tissue support/reinforcement device of
Matsuda to be useful for a specific urological purpose in
supporting and reinforcing bladder tissue. Clearly, adding folds,
as taught by Anderson, to the device of Matsuda would provide
adjustability to the device when used in urological applications.
Id. The Examiner's explanation as to why one having ordinary skill in the
art would have looked to Anderson to modify the implant of Matsuda is
reasonable, and Appellant does not offer any factual evidence or persuasive
technical reasoning to refute the Examiner's position.
Appellant also argues that "the Examiner has relied on impermissible
hindsight, using Appellant's own disclosure, to suggest the references make
obvious the claimed implant." Br. 7. This argument is not persuasive
because Appellant does not identify, nor do we discern, any knowledge
relied upon by the Examiner that was gleaned only from Appellant's
disclosure and that was not otherwise within the level of ordinary skill at the
time of the invention. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA
1971 ).
Accordingly, for the foregoing reasons, we sustain the rejection of
claim 1, and of claims 2---6, 8, 15, 17, 19, 21, and 25-27 falling therewith,
under 35 U.S.C. § 103(a) as being unpatentable over Matsuda and Anderson.
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Rejection III- Claims 1, 2, 4, 8, 15, 21, and 23-27 as unpatentable
over Hayes and Matsuda
Appellant argues Rejection III of claims 1, 2, 4, 8, 15, 21, and 23-27
as a group. See Br. 7-10. We select independent claim 1 as the
representative claim to decide the appeal of the rejection of these claims,
with claims 2, 4, 8, 15, 21, and 23-27 standing or falling therewith.
The Examiner found that Hayes discloses, inter alia, an implant
including a "fibrillar structure [that] is pliable and tough enough to retain
sutures (i.e., exhibits mechanical properties of a human ligament)." Final
Act. 4 (citing Hayes, col. 5, 11. 41-55). 3 Next, the Examiner found that
"Hayes fails to teach the structure to exhibit a failure strain of from about
105°/o to about 150°/o of its original length." Id. at 5 (underlining
omitted). However, the Examiner found that "Matsuda teaches a
bioabsorbable woven implant used for tissue regeneration, wherein the
implant exhibits a failure strain within the claimed range." Id. (citing
Matsuda, p. 51, 1. 31-p. 52, 1. 8; p. 103, 11. 6-21). The Examiner concluded
that, given the teachings of the prior art, "it would have been obvious ... to
modify the implant of Hayes such that it exhibits a failure strain within the
claimed range, as taught by Matsuda, in order to provide the implant with
suitable mechanical properties for a particular use." Id.
Appellant argues that "nowhere in the cited paragraph of Hayes is
there any mention of an article that 'exhibits mechanical properties of a
human ligament.'" Br. 7-8 (citing Hayes, col. 5, 11. 41-55). The Examiner
3 We note that representative claim 1 does not recite any limitation
regarding "a human ligament," but that dependent claim 15 does recite such
a limitation. See Br. 14, 15, Claims App.
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responds that "Hayes teaches the device ... be[ing] pliable and tough
enough to retain sutures," wherein the "Examiner considers both of these
properties to be mechanical properties of a human ligament." Ans. 6.
Appellant's argument is not persuasive of error in the Examiner's
rejection because representative claim 1 does not call for "mechanical
properties of a human ligament." See In re Self, 671 F.2d at 1348. To the
extent that the failure strain range recited in claim 1 might represent a
mechanical property of a human ligament, the Examiner relied on the
combined teachings of Hayes and Matsuda to address the limitation.
Nonobviousness "cannot be established by attacking references
individually" when the rejection is predicated upon a combination of prior
art disclosures. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir.
1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)). Moreover,
Appellant does not set forth any evidence or persuasive technical reasoning
to explain why the Examiner's interpretation of Hayes's disclosure would be
improper.
Appellant argues that "the Examiner has failed to identify 'a particular
use' that would prompt the combination of Hayes and Matsuda." Br. 8
(citing Final Act. 5). In particular, Appellant asserts that, "without
identifying a particular use, the Examiner has failed to articulate a rational
motivation for combining the teachings of Hayes and Matsuda." Id. at 8-9.
This argument does not persuade us of error in the Examiner's rejection.
Here, the Examiner explains that "Hayes teaches the device to be used
for tissue regeneration/repair, such as soft tissue, nervous tissue, vascular
tissue, bone tissue, and periodontal tissue (see col. 3, 11. 8-11; col. 8,
11. 21-64; Examples 1-5 in col. 9-13)," and "Matsuda teaches a device used
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for repairing and regenerating tissue (see page 90, 11. 5-29) or for reinforcing
and supporting tissue (page 90, line 31 to page 91, line 8) such as vascular
tissue, soft tissue, and bone." Ans. 6. According to the Examiner:
[I]t would have been well within the technical grasp of one of
ordinary skill in the art to look to employ a failure strain within
the claimed range, as taught by Matsuda, in order to provide an
implant with suitable mechanical properties for a particular use
(e.g. to provide an implant suitable for use for regeneration of
soft tissue; to provide an implant suitable for use for regeneration
of vascular tissue; to provide an implant suitable for use for
regeneration of bone tissue).
Id. This explanation is reasonable, particularly in consideration of the area
of surgery, where one of ordinary skill in the art would readily appreciate
that, as noted by the Examiner, "[ n Jot all types soft tissue, vascular tissue, or
bone tissue have the same failure strains." Id. at 7. As such, we are not
persuaded of error in the Examiner's position that, "depending upon the type
of soft tissue, vascular tissue, or bone tissue being replaced/regenerated, it
would have been well within the technical grasp of one having ordinary skill
in the art to tailor the device of Hayes to have suitable mechanical properties
such that it can withstand use." Id.
Appellant argues that "Hayes' [ s] implant is utilized in a different way
than Matsuda's implant" and "a person of ordinary skill in the art would not
have understood Hayes' [ s] article to require the mechanical properties of
Matsuda's implant." Br. 10. This argument is not persuasive because the
proper inquiry is not whether Hayes' s implant requires the same mechanical
properties of Matsuda's implant, but, rather, has the Examiner articulated
adequate reasoning based on a rational underpinning to explain why a person
of ordinary skill in the art would have been led to combine the teachings of
Hayes and Matsuda. See KSR Int'!, 550 U.S. at 418 (stating that "rejections
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on obviousness grounds cannot be sustained by mere conclusory statements;
instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness" (citing In re
Kahn, 441 F.3d at 988)). In this case, the Examiner articulated adequate
reasoning having rational underpinnings for the combination used in the
rejection-namely, modifying Hayes's implant to exhibit particular
mechanical properties (i.e., a failure strain range), for the purpose of
providing suitable mechanical properties for the implant in a particular use,
as discussed supra.
Appellant also argues that "it is only with the use of Appellant's own
disclosure and impermissible hindsight that the Examiner is able to draw the
conclusion of providing Hayes' [ s] article with the failure strain of Matsuda' s
implant." Br. 10. This argument is unconvincing because Appellant does
not identify, nor do we discern, any knowledge relied upon by the Examiner
that was gleaned only from Appellant's disclosure and that was not
otherwise within the level of ordinary skill at the time of the invention. See
In re McLaughlin, 443 F.2d at 1395.
Accordingly, for the foregoing reasons, we sustain the rejection of
claim 1, and of claims 2, 4, 8, 15, 21, and 23-27 falling therewith, under
35 U.S.C. § 103(a) as being unpatentable over Hayes and Matsuda.
Rejection IV- Claims 1, 5, 15, and 16 as unpatentable
over Matsuda, Dauner, and Chin
Appellant argues Rejection IV of claims 1, 5, 15, and 16 as a group.
See Br. 10-12. We select independent claim 1 as the representative claim to
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decide the appeal of the rejection of these claims, with claims 5, 15, and 16
standing or falling therewith.
The Examiner found that Matsuda discloses an implant, substantially
as claimed, except that "Matsuda fails to teach the claimed stiffness." Final
Act. 5---6. 4 However, the Examiner found that "Dauner ... teaches a
bioabsorbable textile tissue repair implant for hernia, wherein the implant
exhibits a stiffness within the claimed range (see col. 2, 11. 37-48)." Id. at 6.
The Examiner concluded that "it would have been obvious ... to modify the
implant of Matsuda such that it exhibits a stiffness as claimed, as taught by
Dauner, in order to render the soft tissue repair implant of Matsuda suitable
for hernia repairs." Id.
The Examiner also acknowledged that the "Matsuda and Dauner
combination fail[s] to teach ... at least one secured folded edge portion."
Id. However, the Examiner found that "Chin ... teaches a textile hernia
repair implant wherein two opposite edges of the support form secured
folded edge portions 410 (see Figures 4-5) that are secured by stitches (see
col. 2, 11. 47-51)." Id. The Examiner concluded that, given the teachings of
the prior art, "it would have been obvious ... to modify the implant of [the]
Matsuda and Dauner combination such that it has at least one secured folded
edge portion secured by stitches, as taught by Chin, in order to facilitate
placement/delivery of the implant." Id.
With respect to Rejection IV, Appellant initially refers to the
arguments presented in the context of Rejection II, discussed in detail supra,
4 We note that representative claim 1 does not recite any limitation
regarding stiffness of the planar fibrillar structure, but that dependent
claim 16 does recite such a limitation. See Br. 14, 16, Claims App.
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regarding Matsuda's asserted lack of a teaching that the planar fibrillar
structure has "at least one secured folded edge portion." Br. 10. For the
same reasons discussed supra, Appellant does not apprise us of a deficiency
in the teachings of Matsuda relied on in the rejection.
Appellant additionally argues that "a modification of Matsuda' s
implant to include a pocket would have resulted in a change in the
fundamental operating principle ofMatsuda's implant." Id. at 11 (citing
Matsuda, col. 6, 11. 3-9). In particular, Appellant asserts that "folding the
edge portions of Matsuda's implant would affect the absorption,
regeneration, and integration properties of Matsuda's implant at least
because of thickness and positional changes of the layers relative to each
other, as well as to the space available for accommodating the biological
molecule, at the edge portions." Id. at 12.
We are not persuaded that the Examiner's proposed modification of
Matsuda's implant to include a folded edge portion would change the
principle of operation of the implant such that it would render the implant
unsuitable for its intended purpose. Appellant's assertion as to the effect of
the Examiner's proposed modification on absorption, regeneration, and
integration properties is merely speculative, and it appears to rely on bodily
incorporation of specific structural details of Chin (i.e., pockets) into
Matsuda, which is neither the standard for an obviousness rejection. See In
re Keller, 642 F.2d 413, 425 (CCPA 1981).
Moreover, Appellant does not explain how combining the teachings of
Matsuda and Chin in an operable manner would be beyond the level of
ordinary skill in the art. See KSR Int'!, 550 U.S. at 417. As the Examiner
explains, "one of ordinary skill in the art would be able to alter the properties
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of the device of Matsuda, Dauner, and Chin combination based upon the
types of materials used and/ or the type of weave/knit that is employed."
Ans. 8 (citing Matsuda, p. 6, 11. 6-22). Even if the proposed modification
were to affect the absorption, regeneration, and integration properties of
Matsuda's implant, Appellant does not provide any factual evidence or
persuasive technical reasoning to explain why the effect on these properties
would change the principle of operation of the device such that it would no
longer function as an implant or support tissue as intended.
Accordingly, we sustain the rejection of claim 1, and of claims 5, 15,
and 16 falling therewith, under 35 U.S.C. § 103(a) as being unpatentable
over Matsuda, Dauner, and Chin.
DECISION
We AFFIRM the Examiner's decision rejecting claims 16, 17, 19, and
23 under 35 U.S.C. § 112, second paragraph, as being indefinite.
We AFFIRM the Examiner's decision rejecting claims 1---6, 8, 15, 17,
19, 21, and 25-27 under 35 U.S.C. § 103(a) as being unpatentable over
Matsuda and Anderson.
We AFFIRM the Examiner's decision rejecting claims 1, 2, 4, 8, 15,
21, and 23-27 under 35 U.S.C. § 103(a) as being unpatentable over Hayes
and Matsuda.
We AFFIRM the Examiner's decision rejecting claims 1, 5, 15, and
16 under 35 U.S.C. § 103(a) as being unpatentable over Matsuda, Dauner,
and Chin.
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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
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