Todd Telle et al.

Patent Trials and Appeals Board

Aug 22, 2019

14086286 - (D) (P.T.A.B. Aug. 22, 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.
14/086,286 11/21/2013 Todd Telle 21652-00294 4516
75564 7590 08/22/2019
DANIEL M. FITZGERALD (21652)
ARMSTRONG TEASDALE LLP
7700 Forsyth Boulevard
Suite 1800
St. Louis, MO 63105
EXAMINER
STERRETT, JONATHAN G
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
08/22/2019 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):
USpatents@armstrongteasdale.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte TODD TELLE, MARK CLEMENT KWAPISZESKI, and
STEPHANIE MICHELLE DICKINSON

____________

Appeal 2018-002214
Application 14/086,2861
Technology Center 3600

____________

Before ANTON W. FETTING, JOSEPH A. FISCHETTI, and
BRUCE T. WIEDER, Administrative Patent Judges.

WIEDER, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1, 4–10, 13–19, and 22–24. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 According to Appellants, the real party in interest is MasterCard
International Incorporated. (Appeal Br. 1.)
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CLAIMED SUBJECT MATTER
Appellants’ invention “relate[s] generally to asset evaluation and,
more particularly, to methods and systems for evaluating technology assets
including receiving data related to a technology asset and generating a
technology evaluation of the technology asset.” (Spec. ¶ 2.)
Claims 1, 10, and 19 are the independent claims on appeal. Claim 1 is
illustrative. It recites:
1. A technology evaluation measurement (TEM) computer
device for evaluating a technology asset included in a technology
platform of an entity so that a contribution of the technology
asset to an overall efficiency of the technology platform is
determined, said TEM computer device comprising:
a processor in communication with a memory, said TEM
computer device programmed to:
initiate an application program interface (API) call to poll
at least one external data source for information;
in response to initiating the API call, automatically receive
a first data feed in a computer readable data format from the at
least one external data source;
generate a first data set by processing the first data feed,
the first data set including data related to a first technology asset;
receive technology maturity evaluation (TME) data from
a TME computer device in communication with said TEM
computer device, the TME data including response data from
questions posed to a plurality of subject matter experts, the
response data associated with the first technology asset;
incorporate the TME data into the first data set;
determine at least one evaluation function and at least one
categorization function to apply to the first data set, wherein the
at least one categorization function is configured to determine a
context of the first technology asset, and wherein the at least one
evaluation function is configured to determine a quantitative
evaluation of the first technology asset based on the first data set
and the context of the first technology asset;
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process the first data set using the at least one evaluation
function and the at least one categorization function to generate
a second data set, wherein the second data set includes data
related to a technological evaluation of the first technology asset;
generate, based on the technological evaluation of the first
technology asset, using at least one visualization tool API, an
evaluation output, wherein the evaluation output includes a
resource capacity output that includes a scored capacity rating
for the first technology asset and a business value for the first
technology asset; and
generate, based on the evaluation output, an interactive
graphical display on a user interface, the interactive graphical
display including a first graphical scale representing a capacity
of the first technology asset, a second graphical scale
representing business value of the first technology asset, an icon
representing the first technology asset, and a plurality of
additional icons representing additional technology assets,
wherein a position of the icon representing the first technology
asset is determined by the scored capacity rating and the business
value for the first technology asset.

REJECTIONS
Claims 1, 10, and 19 are provisionally rejected on the ground of
nonstatutory obviousness-type double patenting as being unpatentable over
claims 1, 11, and 20 of U.S. Patent Application No. 13,570,090 (the ’090
application).
Claims 1, 4–10, 13–19, and 22–24 are rejected under 35 U.S.C. § 101
as directed to a judicial exception without significantly more.
Claims 1, 4–10, 13–19, and 22–24 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Bob Donath, ISBM Nuggets: New Product
Development Consortium – Portfolio Management, ISBM New Product
Development Consortium (March 19, 2001) (hereinafter “Donath”); Davies
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(US 2003/0033191 A1, pub. Feb. 13, 2003); W.F. Cody et al., The
integration of business intelligence and knowledge management, 41 IBM
Sys. J., 697 (2002) (hereinafter “Cody”); Emden R. Gansner & Stephen C.
North, An open graph visualization system and its applications to software
engineering, Software–Practice and Experience (1999) (hereinafter
“Gansner”).

The double patenting rejection
The Examiner rejects claims 1, 10, and 19 “on the ground of
nonstatutory obviousness-type double patenting as being unpatentable over
claims 1, 11 and 20 of U.S. Patent Application No. 13/570,090” (the ’090
application). (Final Action 6 (emphasis omitted).) Appellants do not appeal
this rejection. Regardless, the ’090 application went abandoned on
November 5, 2018. Therefore, we dismiss as moot the obviousness-type
double patenting rejection of claims 1, 10, and 19.

The § 101 rejection
Appellants do not separately argue the rejected claims. We select
claim 1 as representative. Claims 4–10, 13–19, and 22–24 will stand or fall
with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
“Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof, may obtain a patent therefor, subject to the conditions and
requirements of this title.” 35 U.S.C. § 101. Section 101, however,
“‘contains an important implicit exception: Laws of nature, natural
phenomena, and abstract ideas are not patentable.’” Alice Corp. Pty. Ltd. v.
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CLS Bank Int’l, 573 U.S. 208, 216 (2014) (quoting Assoc. for Molecular
Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)).
Alice applies a two-step framework, earlier set out in Mayo
Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66
(2012), “for distinguishing patents that claim laws of nature, natural
phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts.” Alice, 573 U.S. at 217.
Under the two-step framework, it must first be determined if “the
claims at issue are directed to a patent-ineligible concept.” Id. at 218. If the
claims are determined to be directed to a patent-ineligible concept, e.g., an
abstract idea, then the second step of the framework is applied to determine
if “the elements of the claim . . . contain[] an ‘inventive concept’ sufficient
to ‘transform’ the claimed abstract idea into a patent-eligible application.”
Id. at 221 (citing Mayo, 566 U.S. at 72–73, 79).
With regard to step one of the Alice framework, we apply a “directed
to” two prong test to: 1) evaluate whether the claim recites a judicial
exception, and 2) if the claim recites a judicial exception, evaluate whether
the claim “appl[ies], rel[ies] on, or use[s] the judicial exception in a manner
that imposes a meaningful limit on the judicial exception, such that the claim
is more than a drafting effort designed to monopolize the judicial
exception.” See USPTO, 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50, 54 (Jan. 7, 2019) (hereinafter “2019 Guidance”).
Here, the Examiner determines that claim 1 is “directed to the abstract
idea of calculating performance metrics for projects in a portfolio (i.e.
directed to an abstract idea of certain methods of organizing human activity
. . . ).” (Final Action 8 (emphasis omitted).) In other words, the Examiner
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determines that “the claims are directed to which project (i.e. technology
asset) to invest in based on a series of steps that generate a chart to facilitate
that decision.” (Answer 5.)
Appellants argue that “the present claims are directed to ‘limited rules
in a process specifically designed to achieve an improved technological
result in conventional industry practice.’” (Appeal Br. 8 (quoting McRO,
Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1316 (Fed. Cir.
2016)).)
Under step one of the Alice framework, we “look at the ‘focus of the
claimed advance over the prior art’ to determine if the claim’s ‘character as a
whole’ is directed to excluded subject matter.” Affinity Labs of Texas, LLC
v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (quoting Elec.
Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016)).
The “directed to” inquiry . . . cannot simply ask whether the
claims involve a patent-ineligible concept, because essentially
every routinely patent-eligible claim involving physical products
and actions involves a law of nature and/or natural phenomenon
. . . . Rather, the “directed to” inquiry applies a stage-one filter
to claims, considered in light of the specification, based on
whether “their character as a whole is directed to excluded
subject matter.” Internet Patents Corp. v. Active Network, Inc.,
790 F.3d 1343, 1346 (Fed. Cir. 2015).

Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016). In
other words, the first step of the Alice framework “asks whether the focus of
the claims is on the specific asserted improvement in [the relevant
technology] or, instead, on a process that qualifies as an ‘abstract idea’ for
which computers are invoked merely as a tool.” Id. at 1335–36; see also
2019 Guidance at 54–55. There is no requirement that the abstract idea be
recited in the claim ipsis verbis. See Alice, 573 U.S. at 218, 213 n.2.
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The Specification provides evidence as to what the claimed invention
is directed. The Specification discloses that the invention “relate[s]
generally to asset evaluation and, more particularly, to methods and systems
for evaluating technology assets.” (Spec. ¶ 2.) Claim 1 provides further
evidence. It recites “[a] technology evaluation measurement (TEM)
computer device . . . comprising: a processor in communication with a
memory . . . programmed to: initiate an application program interface
(API),” “in response to initiating the API call, automatically receive a first
data feed,” “generate a first data set,” “receive technology maturity
evaluation (TME) data,” “incorporate the TME data into the first data set,”
“determine at least one evaluation function and at least one categorization
function,” “process the first data set,” “generate . . . an evaluation output,”
“and generate . . . an interactive graphical display.” None of the limitations
recite technological implementation details.
In short, claim 1 is directed to the abstract idea of certain methods of
organizing human activity; in this case, commercial interactions (including
business relations) and fundamental economic practices (evaluating/
managing assets). See, e.g., Bancorp Servs., LLC v. Sun Life Assurance Co.
of Canada (U.S.), 687 F.3d 1266, 1280 (Fed. Cir. 2012). This is
accomplished by obtaining data, generating a first data set, receiving
additional data, incorporating the additional data into the first data set,
evaluating/analyzing the data, and generating an output including an
interactive display. See Univ. of Florida Research Found., Inc. v. General
Elec. Co., 916 F.3d 1363, 1367 (Fed. Cir. 2019) (“[T]he claims are directed
to the abstract idea of ‘collecting, analyzing, manipulating, and displaying
data.’”); see also Content Extraction and Transmission LLC v. Wells Fargo
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Bank, Nat’l Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014) (determining
claims directed to collecting, recognizing, and storing data in a computer
memory to be directed to an abstract idea).
Although we and the Examiner describe, at different levels of
abstraction, to what the claims are directed, it is recognized that “[a]n
abstract idea can generally be described at different levels of abstraction.”
Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240 (Fed. Cir. 2016). That
need not and, in this case does not, “impact the patentability analysis.” See
id. at 1241.
Nor do we see how the recitation of a “processor in communication
with a memory” or “interactive graphical display,” even in conjunction with
the recited functions, “ensure[s] ‘that the [claim] is more than a drafting
effort designed to monopolize the [abstract idea].” Alice, 573 U.S. at 221
(brackets in original) (quoting Mayo, 566 U.S. at 77.) Moreover, the
Specification discloses that the processor and memory may be generic
computer components. (See, e.g., Spec. ¶ 45.)
Nonetheless, Appellants seek to analogize claim 1 to the claims in
McRO. Appellants argue that
[i]n McRO, the technical improvement was automating
generation of keyframes when creating an animated 3-D model.
Here, the technical improvement is applying stored rules in a
unique and specific matter to aggregate and process data
associated with a first technology asset, and to generate an
interactive graphical display representative of a technological
evaluation of the first technology asset.

(Appeal Br. 8–9.)
We disagree. “The claimed improvement [in McRO] was to how the
physical display operated (to produce better quality images), unlike (what is
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present here) a claimed improvement in a mathematical technique with no
improved display mechanism.” SAP Am., Inc. v. InvestPic, LLC, 898 F.3d
1161, 1167 (Fed. Cir. 2018). In other words, in McRO, data was used to
improve the technology, i.e., the display mechanism. Here, although claim 1
recites, e.g., “generate a first data set,” “determine at least one evaluation
function and at least one categorization function,” “process the first data
set,” “generate . . . an evaluation output,” and “generate . . . an interactive
graphical display,” claim 1 simply recites the functional results to be
achieved by any possible means. It does not recite “a particular way of
programming or designing the software . . . , but instead merely claim[s] the
resulting system[].” Apple, Inc., 842 F.3d at 1241. Moreover, in this case,
the asserted technical improvement, i.e., “applying stored rules in a unique
and specific matter” (Appeal Br. 8), is, at best, an improvement to the
abstract idea. But “[n]o matter how much of an advance in the . . . 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.” SAP
Am., Inc., 898 F.3d at 1163.
Appellants also seek to analogize claim 1 to the claims in BASCOM
Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed.
Cir. 2016). (Appeal Br. 11–12.) Appellants argue that “[s]imilar to Bascom,
the present claims carve out a very specific method for aggregating and
processing data.” (Id. at 11.) In particular, Appellants argue, “[l]ike the
filtering system of Bascom, the specific arrangement and distribution of
functionality provided in the pending claims facilities the practical
application described above.” (Id. at 12.)
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We do not find this argument persuasive. In BASCOM, the court
determined that “an inventive concept can be found in the non-conventional
and non-generic arrangement of known, conventional pieces.” BASCOM,
827 F.3d at 1350.2 Specifically, “[t]he inventive concept described and
claimed in the ’606 patent is the installation of a filtering tool at a specific
location, remote from the end-users, with customizable filtering features
specific to each end user.” Id. at 1350. The Federal Circuit determined that
this “particular arrangement of elements is a technical improvement over
prior art ways of filtering.” Id. Appellants do not persuasively argue why
the claimed “processor in communication with a memory” that obtains data,
generates a first data set, receives additional data, incorporates the additional
data into the first data set, evaluates/analyzes the data, and generates an
output including an interactive display, is analogous to a filtering tool
installed at a specific location with customizable features, that provides a
technical improvement in filtering.
Appellants also seek to analogize claim 1 to the claims in Enfish.
Appellants argue that, like the claims in Enfish, “the pending claims . . . are
directed to a specific implementation of a solution to a problem in the
software arts (i.e., aggregating and processing data associated with a first
technology asset to generate an interactive graphical display representative
of a technological evaluation of the first technology asset.)” (Appeal
Br. 12.)

2 We acknowledge that some of these considerations could be evaluated
under step two of the Alice framework. However, for purposes of
maintaining consistent treatment within the USPTO, we evaluate it under
step one. See 2019 Guidance.
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We do not find this argument persuasive. The claims in Enfish were
“specifically directed to a self-referential table for a computer database.”
Enfish, 822 F.3d at 1337. That is, “the plain focus of the claims [was] on an
improvement to computer functionality itself, not on economic or other tasks
for which a computer is used in its ordinary capacity.” Id. at 1336.
Appellants do not persuasively argue how claim 1 improves computer
functionality.
Appellants also argue that “the automated processing of information
to provide a display is clearly patent-eligible subject matter.” (Reply Br. 3.)
We disagree. Merely providing information on a display, even if the process
of providing that information is automated, need not, and in this case does
not, improve the processor or the technology. See Trading Techs. Int’l, Inc.
v. IBG LLC, 921 F.3d 1378, 1384–85 (Fed. Cir. 2019) (“[T]he claims here
fail because arranging information along an axis does not improve the
functioning of the computer, make it operate more efficiently, or solve any
technological problem.”).
In view of the above, we agree with the Examiner that claim 1 is
directed to an abstract idea.
Step two of the Alice framework has been described “as a search for
an ‘“inventive concept”’ –i.e., an element or combination of elements that is
‘sufficient to ensure that the patent in practice amounts to significantly more
than a patent upon the [ineligible concept] itself.’” Alice, 573 U.S. at 217–
18 (quoting Mayo, 566 U.S. at 72–73).
Taking the claim elements separately, the functions performed by the
generic processor and memory are purely conventional. Obtaining data,
generating a first data set, receiving additional data, incorporating the
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additional data into the first data set, evaluating/analyzing the data, and
generating an output including an interactive display are basic computer
functions, i.e., they are well-understood, routine, and conventional functions
previously known to the industry. See Elec. Power Grp., 830 F.3d at 1356
(The claims “do not include any requirement for performing the claimed
functions of gathering, analyzing, and displaying in real time by use of
anything but entirely conventional, generic technology. The claims
therefore do not state an arguably inventive concept . . . .”); see also In re
Katz Interactive Call Processing Patent Litig., 639 F.3d 1303, 1316 (Fed.
Cir. 2011) (“Absent a possible narrower construction of the terms
‘processing,’ ‘receiving,’ and ‘storing,’ . . . those functions can be achieved
by any general purpose computer without special programming.”).
Considered as an ordered combination, the generic components of
Appellants’ device add nothing that is not already present when the
limitations are considered separately. For example, claim 1 does not, as
discussed above, purport to improve the functioning of the processor or
memory. Nor does it effect an improvement in any other technology or
technical field. Instead, claim 1 amounts to nothing significantly more than
an instruction to apply the abstract idea using generic computer components
performing routine computer functions. That is not enough to transform an
abstract idea into a patent-eligible invention. See Alice, 573 U.S. at 225–26.
Claims 4–10, 13–19, and 22–24 are not separately argued. They fall with
claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).

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The § 103 rejection
Appellants argue that “Davies is silent regarding TME [(technology
maturity evaluation)] data that includes response data i) from questions
posed to a plurality of subject matter experts and ii) associated with a first
technology asset.” (Appeal Br. 15.) Appellants also argue that “Davies is
silent regarding incorporating such TME data into a first data set generated
from a first data feed and including data related to the first technology
asset.” (Id.)
As an initial matter, we define the claim term “TME data.” Neither
Appellants nor the Examiner offer a definition or point to a definition in the
Specification. We note that the Specification discloses that “TME data 520
may include response data from subject matter experts, scoring data
generated by TME computer device 114 using response data, and graphical
representations generated by TME computer device 114.” (Spec. ¶ 71.)
Applying a broadest reasonable interpretation, we conclude that “TME data”
includes response data from subject matter experts, scoring data/metrics
generated by the TME computer, and graphical representations generated by
the TME computer. In doing so, we note that the Specification distinguishes
response data from subject matter experts, from scoring data/metrics
generated by the TME computer.
The Examiner finds that Davies discloses features for obtaining
program data including “[u]sers define questions and answer scales,”
“[u]sers define performance or attractiveness metrics,” “[u]sers define how
question scores are used to calculate metrics,” “[q]uestionaire are [sic]
generated and sent to any number of users. The responses can then be
gathered, discussed, and a consensus score for each question agreed on and
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that score is used to calculate metrics.” (Davies ¶¶ 27–30; see also Final
Action 25–26, Answer 18.) Appellants do not persuasively argue why this is
not a disclosure of posing questions to subject matter experts associated with
a technology.
However, claim 1 recites “incorporate the TME data into the first data
set,” and that “the TME data includ[es] response data from questions posed
to a plurality of subject matter experts.” Thus, the recited TME data must
include the response data from the subject matter experts, regardless of
whether it includes other TME data.
The Examiner finds that Davies teaches
receiv[ing] technology maturity evaluation (TME) data from a
TME computer device in communication with said TEM
computer device, the TME data including response data from
questions posed to a plurality of subject matter experts, the
response data associated with the first technology asset;
incorporate the TME data into the first data set.

(Final Action 25–26 (emphasis omitted).) Specifically, the Examiner points
to paragraph 144 of Davies which discloses that
[r]eal-time status reports on cost, schedule, risks, and metrics
keep users informed of Program progress. From this network-
based workspace, the invention automatically routes work
assignments and data to team members’ in-boxes based on the
Program’s progress. The Program Workspace is a central
location for the Program where all the participants involved can
collaborate and share information.

(Id. at 27 (quoting Davies ¶ 144 (emphasis omitted)).) Also, the Examiner
finds that Donath teaches “project portfolio analysis where each project has
an associated set of data identified with it. This data is received, i.e. is used
as an input to the portfolio analysis. The data set is generated by analysis of
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the projects being analyzed.” (Id. at 19–20.) Thus, the Examiner
determines,
it would have been obvious to one of ordinary skill in the art to
have modified the teachings of Donath to have included the
system (i.e. using software and hardware) approach to automate
the product development process because it would have provided
the benefit of improving the ability to manage the process by
providing those involved with a real time update regarding how
different projects and the overall portfolio was performing with
respect to stated organizational goals.

(Id. at 27; see also Answer 18.)
The Supreme Court in KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398 . . . (2007), explained that, “because inventions in most,
if not all, instances rely upon building blocks long since
uncovered, and claimed discoveries almost of necessity will be
combinations of what, in some sense, is already known,” “it can
be important to identify a reason that would have prompted a
person of ordinary skill in the relevant field to combine the
elements in the way the claimed new invention does.” Id. at 418–
19 . . . . The required “expansive and flexible approach,” id. at
415 . . . , may look at a variety of facts, including prior-art
teachings and marketplace demands and artisans’ background
knowledge, “in order to determine whether there was an
apparent reason to combine the known elements in the fashion
claimed by the patent at issue,” id. at 418 . . . ; see also id. at
420–421 . . . . The Supreme Court added: “To facilitate review,
this analysis should be made explicit.” Id. at 418 . . . .

Personal Web Techs., LLC v. Apple, Inc., 848 F.3d 987, 991–92 (Fed. Cir.
2017) (emphasis added).
We do not find in paragraph 144 or the other cited portions of Davies,
a disclosure of receiving TME data from a TME computer device where the
TME data includes “response data from questions posed to a plurality of
subject matter experts,” as opposed to receiving scoring data/metrics
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generated by, e.g., a TME computer. (See Claim 1.) Nor does the Examiner
make explicit why it would have been obvious to incorporate “TME data
including response data from questions posted to a plurality of subject matter
experts,” rather than simply incorporating calculated scoring data/metrics,
into the generated first data set. (See id.) The Examiner does not rely on the
other cited art to cure this deficiency.
Therefore, we will reverse the § 103 rejection of claim 1. Independent
claims 10 and 19 contain similar language and for similar reasons, we will
reverse the rejection of independent claims 10 and 19, and dependent claims
4–9, 13–18, and 22–24.

DECISION
The Examiner’s provisional rejection of claims 1, 10, and 19 on the
ground of nonstatutory obviousness-type double patenting as being
unpatentable over claims 1, 11, and 20 of the ’090 application is dismissed
as moot.
The Examiner’s rejection of claims 1, 4–10, 13–19, and 22–24 under
35 U.S.C. § 101 is affirmed.
The Examiner’s rejection of claims 1, 4–10, 13–19, and 22–24 under
35 U.S.C. § 103(a) is reversed.
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)(1)(iv).

AFFIRMED