Ex Parte Crites et al

Patent Trial and Appeal Board

Jun 11, 2018

12048609 (P.T.A.B. Jun. 11, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/048,609 03/14/2008 Robert Crites
112978 7590 06/13/2018
Cuenot, Forsythe & Kim, LLC
20283 State Road 7, Suite 300
Boca Raton, FL 33498
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.
CAM920115015US2_8150-0171 5221
EXAMINER
SORKOWITZ, DANIEL M
ART UNIT PAPER NUMBER
3681
NOTIFICATION DATE DELIVERY MODE
06/13/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ibmptomail@iplawpro.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT CRITES, MUKUL GOYAL, GLEN OSTERHOUT,
RUBY KENNEDY, and FRANCISCO JAUFFRED
Appeal2016-007855
Application 12/048,609
Technology Center 3600
Before MURRIEL E. CRAWFORD, ANTON W. PETTING, and
JOSEPH A. FISCHETTI, Administrative Patent Judges.
PETTING, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE 1
Robert Crites, Mukul Goyal, Glen Osterhout, Ruby Kennedy, and
Francisco Jauffred (Appellants)2 seek review under 35 U.S.C. § 134 of a
Final Rejection of claims 69-110, the only claims pending in the application
1 Our decision will make reference to the Appellants' Appeal Brief ("App.
Br.," filed June 29, 2015) and Reply Brief ("Reply Br.," filed August 15,
2016), and the Examiner's Answer ("Ans.," mailed June 14, 2016), and
Final Action ("Final Act.," mailed January 26, 2015).
2 The real party in interest is IBM Corporation.
Appeal2016-007855
Application 12/048,609
on appeal. This is the second time this application has come before us. We
issued a decision in a prior appeal on April 16, 2013. The claims have been
amended in the intervening prosecution. We have jurisdiction over the
appeal pursuant to 35 U.S.C. § 6(b ).
The Appellants invented a form of combinatorial optimization.
Specification 1 :20-21.
An understanding of the invention can be derived from a reading of
exemplary claim 69, which is reproduced below:
69. A computer-implemented method for combinatorial
optimization, comprising:
retrieving a list of combinations of offers that pass a first
set of rules belonging to a first category of rules;
selecting, by one or more processors, a first combination
of offers from the list;
determining, by the one or more processors, whether
the first combination of offers passes a second set of rules
belonging to a second category of rules; and
modifying, based upon the first combination of offers
violating one or more rules of the second set of rules, an offer
in the first combination of offers to generate a second
combination of offers that complies with the second set of rules,
wherein
the offers in the list of combinations of offers having
assigned scores associated with sending the offers to proposed
contacts, and
the first category of rules is different than the second
category of rules.
The Examiner relies upon the following prior art:
Chiang US 2005/0289000 Al Dec. 29, 2005
2
Appeal2016-007855
Application 12/048,609
Claims 69-110 stand rejected under 35 U.S.C. § 101 as directed to
non-statutory subject matter.
Claims 69-110 stand rejected under 35 U.S.C. § 102(b) as anticipated
by Chiang.
ISSUES
The issues of eligible subject matter tum primarily on whether the
claims recite more than abstract conceptual advice of what a computer is to
provide without implementation details.
The issues of novelty matter tum primarily on whether Chiang
describes modifying offers.
FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to the Prior Art
Chiang
01. Chiang is directed to optimizing transactions to customers from a list
of transactions. The method includes generating a frequency distribution of
scores for each offer based on at least one constraint, determining a score
threshold based on the frequency distribution of scores, and adding or
removing transactions from the list of transactions based on the score
threshold. Chiang para. 5.
02. Chiang describes several features that may be provided. The at least
one constraint may be one of a budget constraint, an offer constraint and a
capacity constraint. The invention may also include generating a budget
3
Appeal2016-007855
Application 12/048,609
frequency distribution based on a budget ratio; determining a budget
threshold based on the budget frequency distribution; and adding or
removing transactions from the list of transactions based on the budget
threshold. The budget ratio may include a cost and a score. The invention
may include modifying the frequency distribution of scores based on
interactions between transactions. The scores may include a profitability
value. Chiang para. 8.
03. Chiang describes a computer system that includes automated
campaign management software that includes contact optimization software
that prioritizes offers sent to multiple contacts based on given criteria. The
contact optimization software provides a streamlined technique that should
execute faster than linear programming solutions, and which can find an
optimal solution if there are no capacity limits (e.g., on the number of
customers per offer, number of offers that can be sent on a given channel, or
budget/resource constraints), and can find a nearly optimal solution
otherwise. Chiang para. 29.
04. Chiang describes contact optimization software executing a core
contact optimization process that selects an optimal set of offers to send to
each customer. By optimal is meant that the offers to send are selected to
maximize the specified objective function/scores ( e.g., profit) and possibly
stay within a budget, while satisfying any given constraints and not violating
any rules. For example, it might actually be more profitable to make four
contacts with a particular customer. But, the maximum contacts allowed for
the customer may be three contacts due to budget or other constraints.
Within the constraints given the contact optimization process selects the
most profitable combination of offers for each customer. The contact
4
Appeal2016-007855
Application 12/048,609
optimization process proceeds on a customer-by-customer basis. Chiang
para. 45.
05. Chiang describes this process being run for each customer
individually. The core contact optimization process for each customer,
filters out invalid offer combinations and orders remaining offers by the
offer score ( e.g., expected profit). The process represents remaining offers
as a bit string and generates an initial proposed solution that is checked
against all (M,S) type constraints. If all rules and constraints are satisfied,
the proposed solution is accepted for the customer and the process evaluates
the next customer. The contact optimization software executes an
alternative generation process as set out in FIG. 5 whenever constraints of
the type (M,S) are violated by a proposed solution for a given customer.
Chiang para. 46.
06. Referring to FIG. 5, Chiang describes the core contact optimization
process calling an alternative generation process that generates one or more
alternative solutions if the current solution being evaluated violates some
rule or constraint. The alternative generation process turns on new bits that
will be on in all of the alternative solutions generated. The alternative
generation process generates alternative solutions to maximize the objective
function (e.g., in order of profitability), and performs an ordered merge of
the new alternatives with the original list of alternatives. The merge
essentially interleaves the alternatives with the original list as appropriate to
retain the overall profitability order. That is, the alternative generation
process 80 generates new alternatives in the order of profitability and merges
them into an alternative list retaining the profitability order. Chiang para.
53.
5
Appeal2016-007855
Application 12/048,609
07. Chiang describes using processes in a sensitivity analysis to provide
the user with a better understanding of the impact of certain decisions.
Chiang describes using table 510 and graph 520 (FIG. 15) to make key
management decisions about spending additional resources based on
changes in parameters (e.g., transactions, budget, offers, capacity) to
measure the sensitivity of these changes to other parameters. For example,
if a customer had a fixed budget of $1 million, a sensitivity analysis would
measure the impact of the optimization if the user included or excluded
additional transactions. Chiang paras. 116-118.
ANALYSIS
Claims 69-110 rejected under 35 U.S. C. § 1 OJ as directed to non-statutory
subject matter
Method claim 69 recites retrieving a list, selecting data from the list,
determining whether the selected data passes rules, modifying some of the
selected data based on a rule violation to generate a second set of data.
Thus, claim 69 recites receiving and selecting data, applying decision
criteria, and modifying data based on the application of the criteria. The
wherein clause includes no steps, but only characterizes the data and rules.
None of the limitations recite implementation details for any of these steps,
but instead recite functional results to be achieved by any and all possible
means. Data reception, analysis and modification are all generic,
conventional data processing operations to the point they are themselves
concepts awaiting implementation details. The sequence of data reception-
analysis-modification is equally generic and conventional. The ordering of
the steps is therefore ordinary and conventional. The remaining claims
6
Appeal2016-007855
Application 12/048,609
merely describe decision criteria and data parameters, with no
implementation details.
The Supreme Court
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First, []
determine whether the claims at issue are directed to one of
those patent-ineligible concepts. [] If so, we then ask, "[ w ]hat
else is there in the claims before us? [] To answer that question,
[] consider the elements of each claim both individually and "as
an ordered combination" to determine whether the additional
elements "transform the nature of the claim" into a patent-
eligible application. [The Court] described step two of this
analysis 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 Corp., Pty. Ltd. v CLS Bank Intl, 134 S.Ct. 2347, 2355 (2014) (citing
Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66
(2012)).
To perform this test, we must first determine whether the claims at
issue are directed to a patent-ineligible concept. The Examiner finds the
claims directed to selecting advertisements, which is a fundamental practice.
Final Act. 2.
Although the Court in Alice made a determination as to what the
claims were directed to, we find that this case's claims themselves and the
Specification provide enough information to inform one as to what they are
directed to.
The preamble to claim 69 recites that it is a method for combinatorial
optimization. The steps in claim 69 result in modifying a set of data
representing a combination of offers. The Specification at 1 : 9-10 recites
7
Appeal2016-007855
Application 12/048,609
that the invention relates to contact stream optimization (CSO), and more
particularly to determining assignments of offers to customers for a
marketing campaign, and at 1 :20-21 recites that the invention is for
combinatorial optimization. Thus, all this evidence shows that claim 69 is
directed to optimizing a set of offers to customers, i.e. selecting
advertisements. This is consistent with the Examiner's finding.
It follows from prior Supreme Court cases, and Bilski (Bilski v
Kappas, 561 U.S. 593 (2010)) in particular, that the claims at issue here are
directed to an abstract idea. Like the risk hedging in Bilski, the concept of
selecting advertisements is a fundamental business practice long prevalent in
our system of commerce. The use of selecting advertisements is also a
building block of ingenuity in marketing. Thus, selecting advertisements,
like hedging, is an "abstract idea" beyond the scope of§ 101. See Alice
Corp. Pty. Ltd. at 2356.
As in Alice Corp. Pty. Ltd., we need not labor to delimit the precise
contours of the "abstract ideas" category in this case. It is enough to
recognize that there is no meaningful distinction in the level of abstraction
between the concept of risk hedging in Bilski and the concept of selecting
advertisements at issue here. Both are squarely within the realm of "abstract
ideas" as the Court has used that term. See Alice Corp. Pty. Ltd. at 2357.
Further, claims involving data collection, analysis, and display are
directed to an abstract idea. Elec. Power Grp. v. Alstom S.A., 830 F.3d 1350,
1353 (Fed. Cir. 2016) (holding that "collecting information, analyzing it, and
displaying certain results of the collection and analysis" are "a familiar class
of claims 'directed to' a patent ineligible concept"); see also In re TL!
Commc 'ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016);
8
Appeal2016-007855
Application 12/048,609
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed. Cir.
2016). Claim 69, unlike the claims found non-abstract in prior cases, uses
generic computer technology to perform data retrieval, analysis, and
modification and does not recite an improvement to a particular computer
technology. See, e.g., McRO, Inc. v. Bandai Namco Games Am. Inc., 837
F.3d 1299, 1314--15 (Fed. Cir. 2016) (finding claims not abstract because
they "focused on a specific asserted improvement in computer animation").
As such, claim 69 is directed to the abstract idea of receiving, analyzing, and
modifying data.
The remaining claims merely describe decision criteria and data
parameters. We conclude that the claims at issue are directed to a patent-
ineligible concept.
The introduction of a computer into the claims does not alter the
analysis at Mayo step two.
the mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea "while adding the words 'apply it'" is
not enough for patent eligibility. Nor is limiting the use of an
abstract idea "'to a particular technological environment."'
Stating an abstract idea while adding the words "apply it with a
computer" simply combines those two steps, with the same
deficient result. Thus, if a patent's recitation of a computer
amounts to a mere instruction to "implement[t]" an abstract
idea "on ... a computer," that addition cannot impart patent
eligibility. This conclusion accords with the preemption
concern that undergirds our § 101 jurisprudence. Given the
ubiquity of computers, wholly generic computer
implementation is not generally the sort of "additional
feature[ e ]" that provides any "practical assurance that the
process is more than a drafting effort designed to monopolize
the [ abstract idea] itself."
Alice Corp. Pty. Ltd., 134 S.Ct. at 2358 (citations omitted).
9
Appeal2016-007855
Application 12/048,609
"[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 Corp. Pty. Ltd., 134 S.Ct. at 2359. They do not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer to retrieve, select, and apply decision criteria to data and modify
the data as a result amounts to electronic data query and retrieval----one of
the most basic functions of a computer. The wherein clause is not a step, but
a recitation of how the data and rules are characterized, viz. an interpretation,
which is perceptible only to the human mind. 3 All of these computer
functions are well-understood, routine, conventional activities previously
known to the industry. See Elec. Power Grp. v. Alstom S.A., supra. Also see
In re Katz Interactive Call Processing Patent Litigation, 639 F.3d 1303,
1316 (Fed.Cir.201 l)("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").
In short, each step does no more than require a generic computer to perform
generic computer functions. As to the data operated upon, "even if a process
of collecting and analyzing information is 'limited to particular content' or a
particular 'source,' that limitation does not make the collection and analysis
3 In particular, we note that the limitation that "the first category of rules is
different than the second category of rules" refers to the categories and not
the rules per se. Thus it is the perception of categories that is recited as
being different.
10
Appeal2016-007855
Application 12/048,609
other than abstract." SAP America Inc. v. InvestPic LLC, No. 2017-2081,
2018 WL 2207254 (Fed. Cir. May 15, 2018).
Considered as an ordered combination, the computer components of
Appellants' method add nothing that is not already present when the steps
are considered separately. The sequence of data reception-analysis-
modification is equally 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 Communications,
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.
Viewed as a whole, Appellants' method claims simply recite the
concept of selecting advertisements as performed by a generic computer. To
be sure, the claims recite doing so by advising one to test offers against
criteria and modify some if the test fails so they then pass other criteria. But
this is no more than abstract conceptual advice on the parameters for such
selecting advertisements and the generic computer processes necessary to
process those parameters, and do not recite any particular implementation.
The method claims do not, for example, purport to improve the
functioning of the computer itself. Nor do they effect an improvement in
any other technology or technical field. The Specification spells out
different generic equipment and parameters that might be applied using this
11
Appeal2016-007855
Application 12/048,609
concept and the particular steps such conventional processing would entail
based on the concept of selecting advertisements under different scenarios.
They do not describe any particular improvement in the manner a computer
functions. Instead, the claims at issue amount to nothing significantly more
than an instruction to apply the abstract idea of selecting advertisements
using some unspecified, generic computer. Under our precedents, that is not
enough to transform an abstract idea into a patent-eligible invention. See
Alice Corp. Pty. Ltd. at 2360.
As to the structural claims, they
are no different from the method claims in substance. The
method claims recite the abstract idea implemented on a generic
computer; the system claims recite a handful of generic
computer components configured to implement the same idea.
This Court has long "warn[ ed] ... against" interpreting § 101 "in
ways that make patent eligibility 'depend simply on the
draftsman's art. '"
Alice Corp. Pty. Ltd. at 2360.
We adopt the Examiner's findings and analysis from Final Action and
Answer, and reach similar legal conclusions. We now tum to the Reply
Brief arguments.
We are not persuaded by Appellants argument that the Examiner erred
by misrepresenting the holding of Ultramercial v Hulu, 772 F.3d 7 0 9
(Fed. Cir. 2014). Reply Br. 2--4.
Appellants' asserted claims are analogous to claims found ineligible
in Ultramercial. The ineligible claims in Ultramercial recited "providing
[a] media product for sale at an Internet website;" "restricting general
public access to said media product;" "receiving from the consumer a
12
Appeal2016-007855
Application 12/048,609
request to view [a] sponsor message;" and "if the sponsor message is an
interactive message, presenting at least one query to the consumer and
allowing said consumer access to said media product after receiving a
response to said at least one query." 772 F.3d at 712. Similarly,
Appellants' asserted claims recite retrieving, selecting, determining, and
modifying advertising data. This is precisely the type of activity found
ineligible in Ultramercial.
As to the holding, the court stated "we do not agree with Ultramercial
that the addition of merely novel or non-routine components to the claimed
idea necessarily turns an abstraction into something concrete. In any event,
any novelty in implementation of the idea is a factor to be considered only in
the second step of the Alice analysis." 772 F.3d at 715. Thus, the addition
of advice to test data against criteria and modify the data accordingly to meet
other criteria as claimed is analyzed at Alice step 2, and even there it does
not tum an abstraction into something concrete
We are not persuaded by Appellants' argument that the Examiner
appears to be of the opinion that any invention "relating to" the concepts of
"advertising, marketing and sales" is unpatentable. Reply Br. 4. The
Examiner finds instead that a claim directed to the concepts of "advertising,
marketing and sales" fails the first Alice step, which is so, as we find supra.
The second step remains to be performed before a finding ofunpatentability.
We are not persuaded by Appellants' argument that
[t]he phrase "directed to," as used by the Supreme Court, does
not mean "implicate in some manner" ( or "relating to" using the
parlance of the Examiner). To be "directed to" an "abstract
idea" means that the claim implements the abstract idea without
anything substantially more. See Alice (slip op., at 14) ("the
relevant question is whether the claims here do more than
13
Appeal2016-007855
Application 12/048,609
simply instruct the practitioner to implement the abstract idea of
intermediated settlement on a generic computer").
Reply Br. 4.
To be "directed to" an "abstract idea" means that the claim is related
to and results in the abstract idea. We find the intrinsic evidence shows this
is so supra. We find no case law to support Appellants' contention that
there must be nothing substantially more in the first Alice step. The Alice
quote Appellants cite refers to the second Alice step, whether the claims
recite an inventive concept, and not to the first step regarding what the claim
is directed to.
We are not persuaded by Appellants' argument that
Although claim 69 recites "selecting, by one or more
processors, a first combination of offers from the list," this only
constitutes 14 words of the 139 words found in the body of the
claim. The additional 125 words do more than simply instruct
the practitioner to "select[] offers to present to consumers." By
failing to consider the impact of these additional 125 words on
the claimed invention, the Examiner has committed reversible
error by not considering the claimed invention as a whole.
Reply Br. 5.
The Examiner does consider the entire claim and finds that "the
limitations are merely instructions to implement the abstract idea on a
computer and require no more than a generic computer to perform generic
computer functions that are well-understood, routine and conventional
activities previously known to the industry." Final Act. 3. As we find
supra, although those "additional 125 words" recite selecting advertisements
by advising one to test offers against criteria and modify some if the test
fails so they then pass other criteria, this is no more than abstract conceptual
14
Appeal2016-007855
Application 12/048,609
advice on the parameters for such selecting advertisements and the generic
computer processes necessary to process those parameters, and do not recite
any particular implementation.
We are not persuaded by Appellants' argument that "Appellants are
unaware of any case law that states that all claims involving
'improvement[s] to sales and marketing behavior or act' are necessarily
claims directed to abstract ideas." Reply Br. 6. The first Alice test looks to
what claims are directed to, not what claims involve. Thus, the test looks to
what the claims achieve, not just ancillary concepts that are involved.
We are not persuaded by Appellants' argument that
While the Examiner makes a passing reference to Alice ( see last
paragraph on page 9 of the Fourth Office Action) the Examiner
never mentions the "economic concepts identified in Alice." As
such, the Examiner has again erred by failing to "ensure that the
rejection is reasonably tied to the facts of the case,"
Reply Br. 6.
Alice refers to fundamental practices as being essentially conceptual
ideas. In Alice, the fundamental practice was economic, and in the instant
case the fundamental practice is commercial and in advertising in particular.
In both instances, the practices are sol fundamental to business practice as to
be essentially conceptual ideas.
Claims 69-110 rejected under 35 U.S.C. § 102(b) as anticipated by Chiang
We are persuaded by Appellants' argument that
As discussed in paragraph [0046] of Chiang, "contact
optimization software 32 executes an alternative generation
process 80 as set out in FIG. 5 whenever constraints of the type
(M,S) are violated by a proposed solution for a given
15
Appeal2016-007855
Application 12/048,609
customer." However, this teaching does not correspond to the
claimed "modifying ... an offer in the first combination of
offers." Instead, as discussed in paragraph [0053] of Chiang,
the alternative generation process 80 "generates one or more
alternative solutions." These alternative solutions are then
merged/interleaved with the original list. Notably, Chiang does
not describe an offer in the first combination offers being
modified, as claimed. Instead, Chiang teaches creating new
alternatives. Thus, Chiang fails to identically disclose the
claimed invention, as recited in claim 69, within the meaning of
35 U.S.C. § 102.
App. Br. 17.
First, we note that although this limitation was present in the claims
before us in the prior appeal, this was not raised as an issue at that time, and
the claims have since been amended, and so is not subject to issue
preclusion. Second, we note that Appellants specifically argue this in the
context of anticipation. We are not placed in a position to consider the
claims under an obviousness analysis. Third, as a matter of claim
construction, claim 69 recites "modifying . . . an offer in the first
combination of offers." This combination of offers is in tum data existing
within a retrieved list. Thus the modification is to existing data, not merely
to the ideas expressed in the data, and so original generation of a similar
offer is not within the scope of modifying an offer.
As to the issue at hand, Appellants are correct that the only instance
Examiner cites of modifying data is in modifying parameters for a sensitivity
analysis, not modifying an existing offer. FF 7. The Examiner prefaces this
with Chiang's discussion of offer process flow. FF 4--5. The Examiner
finds that "the rules and parameters for offers, are part of the offer, so the
offer is modified in the combination of offers until the best offer is selected
for display." Ans. 5. As Appellants contend, Chiang's process generates
16
Appeal2016-007855
Application 12/048,609
new offers instead of modifying existing offers. FF 6. The modifications
Examiner refers to are modifications to sensitivity analysis parameters, and
not to offers. The analysis may then generate offers as described supra, but
this would be generation rather than modification of offers.
CONCLUSIONS OF LAW
The rejection of claims 69-110 under 35 U.S.C. § 101 as directed to
non-statutory subject matter is proper.
The rejection of claims 69-110 under 35 U.S.C. § 102(b) as
anticipated by Chiang is improper.
DECISION
The rejection of claims 69-110 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv) (2011).
AFFIRMED
17