Kiran Shenoy et al.

Patent Trials and Appeals Board

Aug 2, 2019

14017659 - (R) (P.T.A.B. Aug. 2, 2019)

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.
14/017,659 09/04/2013 Kiran SHENOY 0076412-000148 1163
21839 7590 08/02/2019
BUCHANAN, INGERSOLL & ROONEY PC
POST OFFICE BOX 1404
ALEXANDRIA, VA 22313-1404
EXAMINER
BRIDGES, CHRISTOPHER
ART UNIT PAPER NUMBER
3695
NOTIFICATION DATE DELIVERY MODE
08/02/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ADIPDOC1@BIPC.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte KIRAN SHENOY, GOPINATHAN JOSHI,
ANUPAMA ZAGABTHUNI, MANDEEP SANDHU, and
HARITHA NANNAPANENI
____________________

Appeal 2017-011453
Application 14/017,6591
Technology Center 3600
____________________

Before CAROLYN D. THOMAS, PHILLIP J. KAUFFMAN, and
HUNG H. BUI, Administrative Patent Judges.

BUI, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
Appellants filed a Request for Rehearing (“Request”) under 37 C.F.R.
§ 41.52 for reconsideration of our Decision on Appeal, mailed on February
15, 2019 (“Decision”). In that Decision, we affirmed the Examiner’s final
rejection of claims 1–7, 9–18, and 20–24 under 35 U.S.C. § 101 and § 103.
We have considered the arguments presented by Appellants in the Request,
but we are not persuaded that any points were misapprehended or
overlooked by the Board in affirming the Examiner’s final rejection of
claims 1–7, 9–18, and 20–24 under 35 U.S.C. § 101. However, we are
persuaded by Appellants’ arguments against the Examiner’s final rejection

1 According to Appellants, MasterCard International Incorporated is the real
party in interest. App. Br. 2.
Appeal 2017-011453
Application 14/017,659
2

of claims 1–7, 9–18, and 20–24 under 35 U.S.C. § 103. As such, we have
provided herein additional explanations. Because at least one ground of
rejection with respect to each claim on appeal is affirmed, our decision
remains AFFIRMED. See 37 C.F.R. § 41.50(a)(1).

ANALYSIS
The applicable standard for a Request for Rehearing is set forth in
37 C.F.R. § 41.52(a)(1), which provides in relevant part, “[t]he request for
rehearing must state with particularity the points believed to have been
misapprehended or overlooked by the Board.”
Appellants contend (1) the Board misapprehended the Examiner’s
§ 101 rejection of claims 1–7, 9–18, and 20–24 in light of the Office’s 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (“2019 Revised Guidance”) because even if the claim recites a
“fundamental economic practice,” the Board misapprehended or overlooked
that (i) “the claim as a whole integrates the judicial exception into a practical
application” and (ii) “[t]he appealed claims pertain to an improvement in the
technology by incorporating a transaction processing server at a remote
location (enabling it to be non-merchant specific) that generates and
distributes virtual gift cards in a new and useful way”; and (2) the Board
misapprehended the meaning of the disputed limitation: “upon successful
completion of the payment transaction [by funding a merchant payment
account associated with the merchant identifier], generating, by the
processing device of the transaction processing server, the gift card number
to be associated with the requested gift card.” Req. Reh’g 1–12.

Appeal 2017-011453
Application 14/017,659
3

I. Application of 2019 Revised Guidance
Alice/Mayo—Step 1 (Abstract Idea)
Step 2A–Prongs 1 and 2 identified in the Revised Guidance
Step 2A—Prong 1 (Abstract Idea)
Appellants do not dispute our determination that claims 1–7, 9–18,
and 20–24 are directed to “processing an electronic gift card purchase
request and subsequent payment transaction involving said purchased gift
card,” which is considered as a “fundamental economic practice” similar to
the claims in Bilski v. Kappos, 561 U.S. 593 (2010) and Alice Corp. Pty. Ltd.
v. CLS Bank Int’l, 573 U.S. 208 (2014) (Decision 8–9, 14–15) and, thus, an
abstract idea. See 2019 Revised Guidance. “Processing an electronic gift
card purchase request and subsequent payment transaction involving said
purchased gift card” is a fundamental business practice prevalent in our
system of commerce, like (1) the risk hedging in Bilski; (2) the intermediated
settlement in Alice; (3) verifying credit card transactions in CyberSource
Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1370 (Fed. Cir. 2011);
(4) guaranteeing transactions in buySAFE, Inc. v. Google, Inc., 765 F.3d
1350 (Fed. Cir. 2014); (5) distributing products over the Internet in
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014);
(6) determining a price of a product offered to a purchasing organization in
Versata Dev. Grp., Inc. v. SAP America, Inc., 793 F.3d 1306 (Fed. Cir.
2015); and (7) pricing a product for sale in OIP Techs., Inc. v. Amazon.com,
Inc., 788 F.3d 1359 (Fed. Cir. 2015). “Processing an electronic gift card
purchase request and subsequent payment transaction involving said
purchased gift card” is also a building block of a market economy and, like
Appeal 2017-011453
Application 14/017,659
4

risk hedging and intermediated settlement, is an “abstract idea” beyond the
scope of § 101. See Alice, 573 U.S. at 219.
Step 2A—Prong 2 (Integration into Practical Application)
In the Request for Rehearing, Appellants advance new arguments to
demonstrate that, under the Revised Guidance, “the claim as a whole
integrates the judicial exception [i.e., a fundamental economic practice] into
a practical application and is thus patent eligible.” Req. Reh’g 2–5. For
example, Appellants argue “the Board did not consider claim 1, as a whole”
and “did not identify any additional elements,” including “key features of
the claim that integrate the alleged judicial exception into a practical
application,” which Appellants highlight in bolded text of claim 1, as
reproduced below:
1. A computer-implemented method for processing an electronic
gift card request, comprising:
receiving, by a receiving device of a transaction
processing server, an electronic gift card request for a gift card
from an application program installed on a communication
device or via a webpage, wherein the gift card request
includes at least a merchant identifier of a merchant, a gift
amount, a payment account identifier, and a recipient,
wherein said transaction processing server is a separate and
distinct entity from the merchant and is configured to
electronically communicate between merchants and a
payment network for authorizing or denying payment
transactions;
prior to a gift card number being used in an attempted
payment transaction, processing, by a processing device of the
transaction processing server, via a payment network, a
payment transaction for the gift amount included in the electronic
gift card request by funding a merchant payment account
associated with the merchant identifier included in the
electronic gift card request using a payment account
Appeal 2017-011453
Application 14/017,659
5

associated with the payment account identifier included in
the electronic gift card request;
upon successful completion of the payment transaction,
generating, by the processing device of the transaction
processing server, the gift card number to be associated with the
requested gift card;
electronically storing, in a gift card database device of
the transaction processing server, the gift card number
generated by the processing device with (i) the gift amount
included in the gift card request and (ii) the merchant payment
account, to which the payment transaction for the gift amount
was processed;
electronically transmitting, by a transmitting device of
the transaction processing server, the generated gift card
number to a mobile communication device of the recipient, (i)
wherein the generated gift card number is then stored in the
mobile communication device, (ii) wherein said transmission
causes said mobile communication device to electronically
display the gift card via at least one of an application
program installed on said mobile communication device or a
web page on said mobile communication device, and (iii)
wherein said displayed gift card includes at least the
generated gift card number and a machine-readable code
encoded with payment credentials including the generated
gift card number;
receiving, by the receiving device of the transaction
processing server, from a merchant point-of-sale device, an
electronic authorization request for an attempted transaction
involving the generated gift card number; and
processing, by the processing device of the transaction
processing server, the attempted payment transaction involving
the generated gift card number, by funding the attempted
payment transaction using the merchant payment account,
to which the payment transaction for the gift amount was
processed, stored in association with the generated gift card
number in the gift card database of the transaction
processing server.

Req. Reh’g 2–4.
Appeal 2017-011453
Application 14/017,659
6

Appellants then argue “[t]he appealed claims provide a technical
solution to a problem associated with closed-loop systems and, in fact,
eliminate the need for closed-loop systems” by way of using:
a non-merchant-specific (e.g., centralized) processing server
(i.e., one that “is a separate and distinct entity from the merchant
and is configured to electronically communicate between
merchants and a payment network for authorizing or denying
payment transactions,” as recited in appealed claim 1) to generate
and distribute virtual gift cards by processing a payment
transaction for a gift card request “by funding a merchant
payment account associated with a merchant identifier included
in an electronic gift card request” using a payment account
associated with a payment account identifier included in the
electronic gift card request.

Req. Reh’g 5 (citing App. Br. 16). According to Appellants, “these
additional features” “which were not considered by the Board” (1)
“eliminate the need for closed-loop systems [which, require significant
resources, to issue and process gift cards]” and (2) secure “a receiver’s
privacy (e.g., with respect usage of the gift card” and, as such, “integrate the
alleged abstract idea into a practical application.” Id.
Appellants’ arguments are not persuasive. First, the recited (1)
“funding a merchant payment account associated with the merchant
identifier included in the electronic gift card request using a payment
account associated with the payment account identifier included in the
electronic gift card request” and (2) “funding the attempted payment
transaction using the merchant payment account” are already part of
Appellants’ claimed “processing an electronic gift card purchase request and
subsequent payment transaction involving said purchased gift card,” which
is considered as a “fundamental economic practice” and, thus, an abstract
idea. See 2019 Revised Guidance.
Appeal 2017-011453
Application 14/017,659
7

Second, using generic computers and servers such as (1) “a receiving
device of a transaction processing server,” (2) “a processing device of the
transaction processing server, via a payment network,” (3) “a gift card
database device of the transaction processing server,” and (4) “a transmitting
device of the transaction processing server,” as a tool to perform an abstract
idea are insufficient to show “integration into a practical application.” See
MPEP § 2106.05(f). Instead, these generic computers and servers are
simply the “automation of the fundamental economic concept,” OIP Techs.,
788 F.3d at 1362–63, of “processing an electronic gift card purchase request
and subsequent payment transaction involving said purchased gift card.”
Third, Appellants’ focus on improving “the provision of gift cards on
[so-called] closed-loop systems” is not the same as making “improvements
to the functioning of a computer, or to any other technology or technical
field” as contemplated by MPEP § 2106.05(a). This is not “a technical
solution to a technical problem.” Using a non-merchant-specific processing
server (i.e., generic server) instead of a merchant-specific processing server
(which requires significant resources to issue and process gift card) to
process virtual gift cards does not improve the technical functioning of the
computer or computer networks and, as such, does not integrate the
fundamental economic concept of “processing an electronic gift card
purchase request and subsequent payment transaction involving said
purchased gift card” into a practical application, as Appellants argue.
Req. Reh’g 5.
For business-centric inventions, such as Appellants’ invention
involving “processing an electronic gift card purchase request and
subsequent payment transaction involving said purchased gift card,” the
Federal Circuit’s precedential decisions in (1) DDR Holdings, LLC v.
Appeal 2017-011453
Application 14/017,659
8

Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014) and (2) Amdocs
(Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1294 (Fed. Cir. 2016)
are more instructive. For example, the Federal Circuit held DDR’s claims
are patent-eligible under § 101 because DDR’s claims (1) do not merely
recite “the performance of some business practice known from the pre-
Internet world” previously disclosed in Bilski and Alice, but instead (2)
provide a technical solution to a technical problem unique to the Internet,
i.e., a “solution . . . necessarily rooted in computer technology in order to
overcome a problem specifically arising in the realm of computer networks.”
DDR, 773 F.3d at 1257. Likewise, the Federal Circuit also held Amdocs’
claims patent-eligible under § 101 because, like DDR, Amdocs’ claims
“entail[] an unconventional technological solution (enhancing data in a
distributed fashion) to a technological problem (massive record flows which
previously required massive databases)” and “improve the performance of
the system itself.” Amdocs, 841 F.3d at 1300, 1302. According to MPEP
§ 2106.05(a), both the Federal Circuit’s precedential decisions in DDR and
Amdocs are incorporated into the “integration into a practical application”
(Prong Two) of the 2019 Revised Guidance.
In contrast to DDR and Amdocs, Appellants’ abstract idea of
“processing an electronic gift card purchase request and subsequent payment
transaction involving said purchased gift card” does not provide a technical
solution to a technical problem, i.e., a “solution . . . necessarily rooted in
computer technology in order to overcome a problem specifically arising in
the realm of computer networks.” DDR, 773 F.3d at 1257. Nor does
Appellants’ invention entail, like Amdocs, any “unconventional
technological solution (enhancing data in a distributed fashion) to a
technological problem (massive record flows which previously required
Appeal 2017-011453
Application 14/017,659
9

massive databases)” and “improve the performance of the system itself.”
Amdocs, 841 F.3d at 1300, 1302. Instead, the solution proposed by
Appellants is simply to better sell virtual gift cards, and not to improve any
technical functioning of any computer or any technological problem.
For these reasons, we discern no additional elements (or combination
of elements) recited in Appellants’ claim 1 that integrate the judicial
exceptions into a practical application. See 2019 Revised Guidance, Revised
Step 2A, Prong Two.
Alice/Mayo—Step 2 (Inventive Concept)
Step 2B identified in the Revised Guidance
Under the Revised Guidance, only if a claim: (1) recites a judicial
exception, and (2) does not integrate that exception into a practical
application, do we then look to whether the claim adds a specific limitation
beyond the judicial exception that is not “well-understood, routine,
conventional” in the field (see MPEP § 2106.05(d)); or, simply appends
well-understood, routine, conventional activities previously known to the
industry, specified at a high level of generality, to the judicial exception.
See 2019 Revised Guidance, 84 Fed. Reg. at 56.
In the Request for Rehearing, Appellants do not identify any “specific
limitation [of claim 1] beyond the judicial exception that is not ‘well-
understood, routine, conventional’ in the field” as per MPEP § 2106.05(d).
Instead, Appellants present two new arguments in support of Appellants’
contention that the claims contain an “inventive concept.” First, Appellants
argue “the claimed transaction processing server operates with merchant
point-of-sale devices . . . [and] require particular protocols, which are not
germane to a ‘generic computer’” and, as such, “a financial transaction
server . . . cannot be a generic computer” but “a specific-type of device that
Appeal 2017-011453
Application 14/017,659
10

must be configured with various components and features so that at least
specified functions as identified in Appellants’ payment network definition
can be achieved.” Req. Reh’g 6–7; Spec. ¶ 19. Second, Appellants argue
“the claims involve ‘virtual’ (electronic) gift cards and virtual (electronic)
gift card numbers, electronic transaction processing, mobile
communications, and electronic content transmissions” and “are specific to
the internet and do not exist without the internet” and, as such, “[t]o dismiss
it as something that could be done without the internet or network
communications is to defy logic.” Id. at 7.
We disagree. At the outset, we note that claims “purporting to
improve the functioning of the computer . . . might not succumb to the
abstract idea exception.” Enfish, LLC v. Microsoft Corp. 822 F.3d 1327,
1335 (Fed. Cir. 2016) (internal quotation marks and brackets omitted).
However, Appellants’ argument regarding the use of a particular type of
network (e.g., payment network) that requires particular protocols is
unpersuasive because these are generic computer components are only using
conventional protocols to carry out the claimed invention. For example,
Appellants’ Specification describes a payment network as:
A system or network used for the transfer of money via the use
of cash-substitutes. Payment networks may use a variety of
different protocols and procedures in order to process the transfer
of money for various types of transactions. Transactions that may
be performed via a payment network may include product or
service purchases, credit purchases, debit transactions, fund
transfers, account withdrawals, etc. Payment networks may be
configured to perform transactions via cash-substitutes, which
may include payment cards, letters of credit, checks, financial
accounts, etc. Examples of networks or systems configured to
perform as payment networks include those operated by
MasterCard®, VISA®, Discover®, American Express®, etc.

Appeal 2017-011453
Application 14/017,659
11

Spec. ¶ 19 (emphasis added).
Similarly, Appellants’ argument regarding whether the claims
involving “virtual” (electronic) gift cards “are specific to the internet and do
not exist without the internet” is equally unpersuasive because using the
Internet or network communication devices to perform an abstract idea is
still an abstract idea. “[M]erely requiring generic computer
implementation,” “do[] not move into [§] 101 eligibility territory.”
buySAFE, 765 F.3d at 1354. Likewise, a claim for a new abstract idea is still
an abstract idea. See Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d
1138, 1151 (Fed. Cir. 2016). “No matter how much of an advance in the
finance field the claims recite, the advance lies entirely in the realm of
abstract ideas, with no plausibly alleged innovation in the non-abstract
application realm.” See SAP America, Inc. v. InvestPic, LLC, 898 F.3d
1161, 1163 (Fed. Cir. 2018).
For these reasons, we are not persuaded that, under the Revised
Guidance, that each of Appellant’s claims 1–7, 9–18, and 20–24, when
considered as a whole, is directed to a patent-eligible subject matter.

II. Obviousness of Claims 1–7, 9–18, and 20–24
With respect to the obviousness rejection, Appellants argue the
combination of Brown2 and Dessert3 does not teach or suggest the disputed
limitation because the Board overlooked the meaning of the disputed
limitation:
“upon successful completion of the payment transaction [by
funding a merchant payment account associated with the

2 Brown, US 2010/01006592 A1, pub. Apr. 29, 2010.
3 Dessert et al. US 2011/0166992 A1; pub. July 7, 2011.
Appeal 2017-011453
Application 14/017,659
12

merchant identifier], generating, by the processing device of the
transaction processing server, the gift card number to be
associated with the requested gift card.”

Req. Reh’g 8–12.
Appellants acknowledge Brown teaches that (1) “a user may establish
a new account with a merchant” and (2) “funds may be deposited to activate
the account (not to generate an number associated with the account).” Id. at
9–10. However, Appellants argue (1) “Brown does not disclose or suggest
that the account number is generated upon completion of a financial
transaction, as in the appealed claims” and (2) “Brown does not require that
a ‘financial transaction’ must occur first in order for the account number to
be generated.” Id. According to Appellants, Brown’s disclosure that “the
‘account’ is activated by depositing funds into the account” “is different
from requiring a payment transaction occur to generate an account
‘number.’” Id. at 10. Appellants also argue that neither the Examiner nor the
Board responded to Appellants’ argument presented in the Appeal Brief that
“the fund first goes to a ‘merchant payment account,’ which later funds the
subsequent transaction.” Id. at 10–12.
Appellants’ arguments are persuasive. At the outset, we note claim
terms, during prosecution, are given their broadest reasonable interpretation
consistent with the Specification. In re America Acad. of Sci. Tech Ctr., 367
F.3d 1359, 1364 (Fed. Cir. 2004). Under the broadest reasonable
interpretation, claim terms are given their ordinary and customary meaning,
as would be understood by one of ordinary skill in the art in the context of
the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257
(Fed. Cir. 2007).
Appeal 2017-011453
Application 14/017,659
13

The phrase “upon successful completion of the payment transaction”
is not defined or described anywhere in Appellants Specification. Instead,
that phrase was added during prosecution, i.e., in the Amendment filed on
June 1, 2016, and is described in the context of the purchase of a gift card
prior to the use or redemption of the gift card. See Amendment pp. 23–24;
see also “Summary Claimed Subject Matter.” App. Br. 3. In the absence of
an explicit or special definition for the term “payment transaction” from
Appellants’ Specification, the “ordinary and customary meaning” of that
term governs. Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005)
(en banc). The ordinary and customary meaning of the term “payment
transaction” can be evidenced by a variety of sources, including “the words
of the claims themselves, the remainder of the specification, the prosecution
history, and extrinsic evidence concerning relevant scientific principles, the
meaning of technical terms, and the state of the art.” Id., at 1314. Typically,
it is the use of the words in the context of the written description and
customarily by those skilled in the relevant art that accurately reflects both
the “ordinary” and the “customary” meaning of the terms in the claims.
Ferguson Beauregard/Logic Controls, Div. of Dover Res., Inc. v. Mega Sys.,
LLC, 350 F.3d 1327, 1338 (Fed. Cir. 2003).
In isolation, the term “payment transaction” can be broadly, but
reasonably interpreted to encompass “funds” or initial payment made by a
consumer to purchase a gift card and setup a gift card account as disclosed
by Brown. See Decision 22–23 (citing Brown ¶¶ 14–18)). However,
Appellants’ claim 1 expressly requires a condition precedent to the phrase
“upon successful completion of the payment transaction,” that is, “a
payment transaction . . . by funding a merchant payment account associated
with the merchant identifier included in the electronic gift card request using
Appeal 2017-011453
Application 14/017,659
14

a payment account associated with the payment account identifier included
in the electronic gift card request.” In the words, Appellants’ claim 1
requires “successful completion of the payment transaction” “by funding a
merchant payment account associated with the merchant identifier included
in the electronic gift card request.”
In contrast to Appellants’ claim 1, Brown teaches that a consumer can
purchase a gift card and setup a gift card account number by making a
payment transaction (i.e., funds) via “a customer interface such as an online
website interface or a kiosk style interface, for example a kiosk location in
any one of the merchant’s physical locations” or even “at the store’s
customer service department” “using a credit or debit card depositing funds
into the account.” Decision 22–23 (citing Brown ¶¶ 14–16). However,
Brown’s payment transaction (i.e., funds) is deposited into the consumer’s
gift card account number, and not “a merchant payment account associated
with the merchant identifier included in the electronic gift card request,” as
required by Appellants’ claim 21.
For these reasons, we are persuaded that the Examiner erred and we
overlooked the meaning of the disputed limitation of Appellants’ claim 1 in
our Decision. Accordingly, we do not sustain the Examiner’s obviousness
rejection of independent claims 1 and 12, and dependent claims 2–7, 9, 10,
13–18, 20, and 21. For the same reasons discussed, we also do not sustain
the Examiner’s obviousness rejection of (1) claims 11 and 22 under 35
U.S.C. § 103(a) as being obvious over Brown, Dessert, and Nelsen; and (2)
claims 23 and 24 under 35 U.S.C. § 103(a) as being obvious over Brown,
Dessert, and Veeneman.

Appeal 2017-011453
Application 14/017,659
15

CONCLUSION
We have considered the arguments raised by Appellants in the
Request for Rehearing, but find none of these arguments persuasive that our
original Decision misapprehended or overlooked any points raised by
Appellants in affirming the Examiner’s § 101 rejection of claims 1–7, 9–18,
and 20–24 in light of the Office’s 2019 Revised Guidance . However, we
are persuaded that the Examiner erred and we overlooked the meaning of the
disputed limitation in affirming the Examiner’s § 103 rejection of claims 1–
7, 9–18, and 20–24. As such, we grant the relief requested to reverse the
Examiner’s § 103 rejection of claims 1–7, 9–18, and 20–24. This Decision
on Appellants’ “REQUEST FOR REHEARING” is deemed to incorporate
our earlier Decision by reference. See 37 C.F.R. § 41.52(a)(1).

DECISION
We have granted Appellants’ request to the extent that we have
reconsidered our Decision and reversed the Examiner’s § 103 rejection of
claims 1–7, 9–18, and 20–24. However, we deny the request with respect to
the Examiner’s decision rejecting claims 1–7, 9–18, and 20–24 under
35 U.S.C. § 101. Because at least one ground of rejection with respect to
each claim on appeal is affirmed, our decision remains AFFIRMED. See 37
C.F.R. § 41.50(a)(1).

REHEARING GRANTED