Ex Parte Kurupacheril et al

Patent Trial and Appeal Board

Mar 18, 2019

15226083 (P.T.A.B. Mar. 18, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
15/226,083 08/02/2016 Francis Kurupacheril
89394 7590 03/20/2019
Futurewei Technologies, Inc.
c/o Conley Rose, P.C.
5601 Granite Parkway
Suite 500
Plano, TX 75024
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.
4194-59501 2478
EXAMINER
COULTER, KENNETH R
ART UNIT PAPER NUMBER
2445
NOTIFICATION DATE DELIVERY MODE
03/20/2019 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):
dallaspatents@dfw.conleyrose.com
uspatent@huawei.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANCIS KUR UP ACHERIL
and FREDERICK P. BLOCK
Appeal2018-005780
Application 15/226,083 1
Technology Center 2400
Before ADAM J. PYONIN, NABEEL U. KHAN, and
DAVID J. CUTITTA II, Administrative Patent Judges.
CUTITTA, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's decision rejecting claims 1-20, all the claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellants identify Futurewei Technologies, Inc. as the real party in
interest. See Appeal Br. 3.
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Application 15/226,083
STATEMENT OF THE CASE
Invention
Appellants' invention relates to "providing means to share context
information using a presence and IM client application" thereby allowing a
user to 'join an ongoing communication session based on displayed context
information associated with the communication session, which may be of
interest or benefit to the user." Spec. ,r,r 31, 32.2
Exemplary Claim
Claims 1 and 7 are independent. Claim 1 is exemplary and is
reproduced below with bracketed material added.
1. A method implemented in a second user terminal,
the method comprising:
[a] receiving a preference for desired context information;
[b] rece1vmg presence information and context
information about a communication session involving a first user
terminal;
[ c] displaying the presence information and the context
information on a display of the second user terminal when the
preference matches the context information;
[ d] receiving an input in response to the displaying; and
[ e] transmitting, to the first user terminal and in response
to the input, a request to join the communication session.
Appeal Br. 32.
2 Our Decision refers to: (1) Appellants' Specification filed August 2, 2016
("Spec."); (2) the Final Rejection mailed April 24, 2017 ("Final Act.");
(3) the Advisory Action mailed November 24, 2017 ("Final Act."); (4) the
Appeal Brief filed December 29, 2017 ("Appeal Br."); (5) the Examiner's
Answer mailed April 6, 2018 ("Ans."); and (6) the Reply Brief filed May 15,
2018 ("Reply Br.").
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REFERENCE AND REJECTIONS
Claims 1-20 stand rejected under 35 U.S.C. § 101 as being directed to
a judicial exception without adding significantly more.. See Final Act. 3-5.
Claims 1---6 stand rejected under 35 U.S.C. § 101 as being directed to
software per se. See Final Act. 4.
Claims 1, 4, and 7 stand rejected on the ground of obviousness-type
double patenting over claims 1, 3, and 7 of US Patent No. 9,450,898. Id. at
5-7.
Claim 16 stands rejected under 35 U.S.C. § 112, second paragraph, as
being indefinite. See Advisory Act. 2.
Claims 1-20 stand rejected underpre-AIA 35 U.S.C. § 102(b) as
being anticipated by Boyer et al. (US 2007 /0230681; pub. Oct. 4, 2007)
("Boyer"). See Final Act. 7-11.
Our review in this appeal is limited to the above rejections and the
issues raised by Appellants. Arguments not made are waived. See
3 7 C.F .R. § 41.3 7 ( c )(1 )(iv )(2017).
DISCUSSION
Rejections Under 35 U.S.C. § 101
Standard for Patent Eligibility
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: "[l]aws of nature, natural phenomena, and abstract
ideas" are not patentable. E.g., Alice Corp. v. CLS Bank Int 'l, 573 U.S. 208,
216 (2014).
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In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court's two-step framework, described in Mayo
and Alice. Id. at 217-18 ( citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75-77 (2012)). In accordance with that framework,
we first determine what concept the claim is "directed to." See Alice, 573
U.S. at 219 ("On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk."); see also Bilski v. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4
in petitioners' application explain the basic concept of hedging, or protecting
against risk.").
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity such as fundamental
economic practices (Alice, 573 U.S. at 219-20; Bilski, 561 U.S. at 611 );
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594--95 (1978)); and
mental processes (Gottschalkv. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as "molding rubber products" (Diamond v. Diehr, 450 U.S. 175, 192
( 1981) ); "tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores" (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267---68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))). In Diehr, the claim
at issue recited a mathematical formula, but the Supreme Court held that "[a]
claim drawn to subject matter otherwise statutory does not become
nonstatutory simply because it uses a mathematical formula." Diehr, 450
U.S. at 176; see also id. at 191 ("We view respondents' claims as nothing
more than a process for molding rubber products and not as an attempt to
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patent a mathematical formula."). Having said that, the Supreme Court also
indicated that a claim "seeking patent protection for that formula in the
abstract ... is not accorded the protection of our patent laws, ... and this
principle cannot be circumvented by attempting to limit the use of the
formula to a particular technological environment." Id. ( citing Benson and
Flook); see, e.g., id. at 187 ("It is now commonplace that an application of a
law of nature or mathematical formula to a known structure or process may
well be deserving of patent protection.").
If the claim is "directed to" an abstract idea, we tum to the second
step of the Alice and Mayo framework, where "we must examine the
elements of the claim to determine whether it contains an 'inventive
concept' sufficient to 'transform' the claimed abstract idea into a patent-
eligible application." Alice, 573 U.S. at 221 ( quotation marks omitted). "A
claim that recites an abstract idea must include 'additional features' to
ensure 'that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea]."' Id. (quoting Mayo, 566 U.S. at 77).
"[M]erely requir[ing] generic computer implementation[] fail[ s] to transform
that abstract idea into a patent-eligible invention." Id.
USPTOJanuary 7, 2019 Revised Section 101 Memorandum
The USPTO recently published revised guidance on the application of
§ 101. See 2019 Revised Patent Subject Matter Eligibility Guidance, 84
Fed. Reg. 50 (Jan. 7, 2019 ("Memorandum"). Under the Memorandum
guidance, we first look to whether the claim recites:
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( 1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing human
activity such as a fundamental economic practice, or mental processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.0S(a}-(c), (e}-(h)).
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:
(3) adds a specific limitation beyond the judicial exception that is not
"well-understood, routine, conventional" in the field (see MPEP
§ 2106.0S(d)); or
(4) simply appends well-understood, routine, and conventional
activities previously known to the industry, specified at a high level of
generality, to the judicial exception.
Findings, Contentions, and Analysis
Appellants argue the claims as a group. See Appeal Br. 13-16. We
select independent claim 1 as exemplary of Appellants' arguments for the
group. See 37 C.F.R. § 4I.37(c)(1)(iv)(2016).
The Examiner determines claim 1 is "directed to user invitations to
join collaborative sessions based on presence and context information" and
"[ t ]his is similar to several concepts which have been held to constitute an
abstract idea." Final Act. 4. The Examiner also determines "[t]he claims do
not include additional elements that are sufficient to amount to significantly
more than the judicial exception because there are no additional claimed
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elements that are more than generic computing functions performed by
generic computers." Id.
Appellants present several arguments against the§ 101 rejection. We
do not find Appellants' arguments persuasive, as discussed below. Applying
the guidance set forth in the Memorandum, we are not persuaded of
Examiner error. We adopt the nomenclature for the steps used in the
Memorandum.
STEP 1
Section 101 provides that "[ w ]hoever 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. Initially, we
determine that independent claim 1 recites "[a] method." Appeal Br. 32. As
such, claim 1 is directed to a statutory class of invention within 35 U.S.C.
§ 101, i.e., a process.
STEP 2A Prong 1
Under Step 2A, Prong 1 of the Memorandum, we must determine
whether claim 1, being directed to a statutory class of invention, nonetheless
falls within a judicial exception.
Appellants argue that claim 1 is not abstract because the claim is
"directed to sharing presence information and context information and
screening initiation of communication sessions based on that presence
information and context information." Appeal Br. 14. The Examiner
responds that "[ c ]ustomizing the displaying of the presence and context
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information based on the user defined preferences is the crux of the claimed
invention" and observes that "[t]he claim language fails to explicitly or
implicitly disclose the screening initiation of communication sessions."
Ans. 15 ( emphasis omitted).
We agree with the Examiner's determination that the claim recites an
abstract idea. As an initial matter, we agree with the Examiner that "'the
screening initiation of communication sessions,"' acting as the basis of
Appellants' argument, is not recited in the claim. Ans. 15. Claim 1 recites a
"method" performing the steps of: [a] "receiving a preference for desired
context information"; [b] "receiving presence information and context
information"; [ c] "displaying the presence information and the context
information"; [ d] "receiving an input in response to the displaying"; and [ e]
"transmitting ... a request to join the communication session." See Appeal
Br. 32. The Specification, likewise, describes that Appellants' invention
seeks to address the problem that known methods "do not support features to
allow a user to request to join a contact involved in a current communication
session ( e.g., for a discussion, meeting, or presentation) or share
communication session related information that may be of interest or benefit
to the user." Spec. ,r 7.
Thus, Appellants' claim recites the abstract idea of generating "user
invitations to join collaborative sessions based on presence and context
information." Final Act. 4. Apart from extra-solution activity and generic
hardware (as discussed below), the claimed invention is analogous to pre-
Internet transactions between humans in which a third-party requests to join
a meeting between a first and second person based on context information
shown to the third-party when the context information is determined as
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matching a preference of the third-party. As such, claim 1 reasonably can be
interpreted as being directed to organizing human activity, "such as
managing relationships or transactions between people" or entities. MPEP
§ 2106.04(a)(2) (Part I). This concept of managing transactions between
people is similar to other types of "organizing human activity" that have
been found to be abstract ideas by the Supreme Court and the Federal
Circuit. See, e.g., FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089,
1093-94 (Fed. Cir. 2016) (collecting and analyzing information and
notifying a user based on the analysis); buySAFE, Inc. v. Google, Inc., 7 65
F.3d 1350, 1355 (Fed. Cir. 2014) (transaction performance guarantee); and
Planet Bingo, LLC v. VKGS LLC, 576 F. App'x 1005, 1007 (Fed. Cir. 2014)
(managing a game of bingo). From this we conclude that claim 1 recites a
method of organizing human activity, as provided for in the Memorandum.
STEP 2A Prong 2
Next, we determine whether the claim is directed to the abstract
concept itself or whether it is instead directed to some technological
implementation or application of, or improvement to, this concept, i.e., is
integrated into a practical application. See, e.g., Alice, 573 U.S. at 223,
discussing Diehr, 450 U.S. at 175.
Applying step 2 of the Alice/Mayo analysis, the Examiner determines
the "defined invention recites an abstract idea, which implements generic
general purpose components and functions, for directing the generic general
purpose components to implement the abstract idea by performing basic
functions of the generic general purpose components, which are well
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understood, routine, and conventional activities previously known in the
industry." Final Act. 4.
Appellants argue "because 'the plain focus of the claims is on an
improvement to computer functionality itself, not on' the abstract idea
asserted by the Office Action, the claims are not directed to an abstract
idea." Appeal Br. 15 (citing Enfish, LLC v. Microsoft Corp., 822 F.3d 1327,
1339 (Fed. Cir. 2016)).
This argument is unpersuasive because Appellants' claim 1 is unlike
the claims in Enfzsh. In Enfzsh, our reviewing court relied on the distinction
made in Alice between computer-functionality improvements and uses of
existing computers as tools in aid of processes focused on "abstract ideas"
(in Alice, as in so many other § 101 cases, the abstract ideas being the
creation and manipulation of legal obligations or the organizing of human
activity). Enfzsh, 822 F.3d at 1335-36; see also Alice, 573 U.S. at 222-25.
In Enfzsh, the § 101 challenge was found persuasive because the claims at
issue focused, not on asserted advances in uses to which existing computer
capabilities could be put, but on a specific improvement-a particular
database technique-in how computers could carry out one of their basic
functions of storage and retrieval of data. Enfzsh, 822 F.3d at 1335-36.
Here, Appellants' claim 1 does not purport to improve the functioning
of the computer itself. Nor does claim 1 effect an improvement in any other
technology or technical field. The mere introduction of a computer or
generic computer technology into the claim need not alter the abstract idea
analysis. See Alice, 573 U.S. at 223-24. "[T]he relevant question is whether
the claims here do more than simply instruct the practitioner to implement
the abstract idea[] on a generic computer." Alice, 573 U.S. at 225. We
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determine claim 1 does not. Viewed as a whole, Appellants' claim simply
recites the abstract idea of generating "user invitations to join collaborative
sessions based on presence and context information." Final Act. 4. To be
sure, the claim recites doing so by causing a second user terminal to: 1)
receive a preference and "presence information and context information
about a communication session involving a first user terminal"; and 2)
transmit "a request to join the communication session." Appeal Br. 32. But
these elements "merely use[] a computer as a tool to perform an abstract
idea," or recite no more than an extra-solution activity for receiving the
presence information and a preference for desired context information and
the generic computer activities necessary to process these activities.
Memorandum, 84 Fed. Reg. at 55. Stated differently, claim 1 simply recites
an abstract idea executed using generic computer technology, i.e., "a second
user terminal." Appeal Br. 32.
Appellants further argue "'the claimed solution is necessarily rooted
in computer technology in order to overcome a problem specifically arising
in the realm of computer networks' and is therefore patent eligible." Appeal
Br. 14 (citing DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258
(Fed. Cir. 2014) (finding an inventive concept in the modification of the
conventional mechanics behind website display to produce a dual-source
integrated hybrid display).
We disagree. The solution offered by Appellants' claim 1 is not
rooted in any novel computer technology, as evidenced by the claim's
failure to recite any hardware other than generic first and second "user
terminal[s]." Appeal Br. 32. Rather than a solution rooted in computer
technology, Appellants' invention, as claimed, seeks to transmit "user
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invitations to join collaborative sessions based on presence and context
information." Final Act. 4. Rather than providing a technical solution by
"improv[ing] speed by allowing a user 'to join communication sessions of
interest without invitations,"' (Reply Br. 4) Appellants' claim 1 merely
automates a pre-internet process using generic computer technology. See
Ans. 15 ("Customizing the displaying of the presence and context
information based on the user defined preferences is the crux of the claimed
invention."). In view of Appellants' Specification, and consistent with the
Examiner's determinations, we determine claim 1 does not recite a
technological improvement and thus does not integrate the judicial exception
into a practical application.
Claim 1 is not directed to a specific asserted improvement in
computer technological implementation or otherwise integrated into a
practical application and thus is directed to a judicial exception.
STEP 2B
Next, we determine whether the claim includes additional elements
that provide significantly more than the recited judicial exception, thereby
providing an inventive concept. Alice, 573 U.S. at 217-18 (quoting Mayo,
566 U.S. at 72-73).
The Examiner determines "[ t ]he claims do not include additional
elements that are sufficient to amount to significantly more than the judicial
exception because there are no additional claimed elements that are more
than generic computing functions performed by generic computers." Final
Act. 4.
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Appellants argue claim 1 "base[ s] communication session initiation on
a condition and allow users to automatically join communication sessions
that they indicate a desire to join beforehand, thus providing significantly
more than the alleged abstract idea." Appeal Br. 16.
We find Appellants' argument unpersuasive because at least one
feature relied upon in the argument, i.e., "automatically join communication
sessions," is not recited in the claim. Id. As previously discussed, claim 1
recites an abstract idea including "receiving a preference," receiving
"presence information and context information" and "receiving an input."
Appeal Br. 32. Other than the abstract idea, claim 1 recites "displaying ...
information on a display of the second user terminal" and "transmitting, to
the first user terminal and in response to the input, a request to join the
communication session." Id. Considered both separately and as an ordered
combination, the additional steps of Appellants' claim 1 add nothing
inventive to the claim. The sequence of data reception-analysis-
modification, and transmission or display is generic and conventional or
otherwise held to be abstract. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d
709, 715 (Fed. Cir. 2014) (sequence of receiving, selecting, offering for
exchange, display, allowing access, and receiving payment recited an
abstraction), Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d
1372, 1378 (Fed. Cir. 2017) (sequence of data retrieval, analysis,
modification, generation, display, and transmission), Two-Way Media Ltd. v.
Comcast Cable Commc 'ns, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017)
(sequence of processing, routing, controlling, and monitoring). The ordering
of the steps is therefore ordinary and conventional.
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Because Appellants' representative claim 1 is directed to a patent-
ineligible abstract concept and does not recite something "significantly
more" under the Alice analysis, we sustain the Examiner's rejection of this
claim under 35 U.S.C. § 101 as being directed to non-patentable subject
matter in light of Alice and its progeny. The rejection of claims 2-20, which
are not argued separately, is sustained for the same reasons.
Software Per Se Rejection
The Examiner additionally rejects method claims 1-6 under
35 U.S.C. § 101 as software per se. See Final Act. 4. Specifically, the
Examiner determines that method claims 1---6, "in light of the specification,
encompasses non-statutory subject matter since such reads on (encompasses)
software, program, or their equivalent per se'; and, which also could be
embodied on a carrier wave." Id.
Appellants do not provide arguments disputing this rejection. See
generally Appeal Br. 13-16.
Despite Appellants' lack of argument, we reverse sua sponte the
Examiner's rejection of method claims 1---6 under 35 U.S.C. § 101 as
software per se. Unlike machines, manufactures and compositions of
matter, methods or processes need not recite a physical or tangible form.
See Digitech Image Techs., LLC v. Electronics for Imaging, Inc., 758 F.3d
1344, 1348 (Fed. Cir. 2014) ("For all categories except process claims, the
eligible subject matter must exist in some physical or tangible form.").
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Rejection Under 35 U.S.C. § 112
The Examiner rejects claim 16 under 35 U.S.C. § 112, second
paragraph, as indefinite. See Advisory Act. 2. Appellants do not provide
arguments disputing the rejection. See Appeal Br. 17. We, therefore,
summarily affirm the rejection. See Hyatt v. Dudas, 551 F.3d 1307, 1314
(Fed. Cir. 2008) ("When the appellant fails to contest a ground of rejection
to the Board, ... the Board may treat any argument with respect to that
ground of rejection as waived.").
Rejection Under 35 U.S.C. § 102(b)
The Examiner finds Boyer's discussion of "presenting self-service or
a chat" if the expected wait time in a queue for a resource exceeds a
predetermined time interval discloses "displaying the presence information
and the context information on a display of the second user terminal when
the preference matches the context information," as recited in claim 1. See
Final Act. 8 ( citing Boyer ,r,r 49, 66, 6, 31 ).
Appellants argue Boyer does not disclose "displaying ... when the
preference matches the context information," as claimed because "Boyer
does not condition presenting the service options on whether a preference for
desired context information matches the context information about a
communication session involving a first user terminal." Appeal Br. 23-24.
Appellants further argue that Appellants made the same argument in two
previous Amendments and "[ w ]hile maintaining the rejections, neither the
Final Office Action nor the Advisory Action addressed that argument."
Appeal Br. 24, n.6.
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In response, the Examiner relies on Boyer's "presenting self-service
or a chat" while additionally finding that "the presenting of service options
inherently includes displaying presence information and context
information." Ans. 17 ( emphasis omitted) ( citing Boyer Figs. 2, 7, 8,
Abstract, ,r,r 49, 66, 6, 31 ).
Because the Examiner does not sufficiently explain how Boyer's self-
service or chat options are displayed when the preference matches the
context information, we cannot sustain the rejection. "Anticipation requires
that all of the claim elements and their limitations are shown in a single prior
art reference." In re Skvorecz, 580 F.3d 1262, 1266 (Fed. Cir. 2009). Here,
the Examiner fails to demonstrate that Boyer discloses every limitation of
claim 1.
We are, therefore, constrained by the record to find the Examiner errs
in rejecting: (1) independent claim 1; (2) independent claim 7, which recites
commensurate limitations; and (3) dependent claims 2---6 and 8-20 for
similar reasons and we do not sustain the anticipation rejection of claims 1-
20 for this reason.
Obviousness-type Double Patenting Rejection
The Examiner rejects claims 1, 4, and 7 on the ground of obviousness-
type double patenting over claims 1, 3, and 7 of U.S. Patent No. 9,450,898.
See Final Act. 5-7.
As to this rejection, because our decision is dispositive with respect to
patentability because claims 1-20 on appeal do not recite patent-eligible
subject matter under § 101, we need not reach the question of whether
claims 1, 4, and 7 are properly rejected on the ground of obviousness-type
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double patenting. See Ex parte Gutta, No. 2008-4366, 93 USPQ2d 1025,
1036 (BP AI 2009) (precedential) ( declining to reach prior art rejections
because the decision regarding patentability under § § 101 was dispositive );
In re Comiskey, 554 F.3d 967, 973 (Fed. Cir. 2009) (declining to reach
obviousness rejection on appeal after concluding many claims were
nonstatutoryunder § 101); In re Bilski, 545 F.3d 943,951 (Fed. Cir. 2008)
( en bane) n.1 ( noting that § 101 is a threshold requirement and that
Examiner may reject claims solely on that basis); In re Rice, 132 F.2d 140,
141 (CCPA 1942) (finding it unnecessary to reach rejection based on prior
art after concluding claims were directed to nonstatutory subject matter).
Accordingly, we decline to reach the Examiner's obviousness-type
double patenting rejection of claims 1, 4, and 7.
DECISION
We affirm the Examiner's decision to reject claims 1-20 under
35 U.S.C. § 101.
We affirm the Examiner's decision to reject claim 16 under
35 U.S.C. § 112, 2nd paragraph.
We reverse the Examiner's decision to reject claims 1-20 under
35 U.S.C. § 102(b).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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