Ex Parte Crowley et al

Patent Trial and Appeal Board

Sep 21, 2018

14700347 (P.T.A.B. Sep. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/700,347 04/30/2015
35811 7590 09/25/2018
IP GROUP OF DLA PIPER LLP (US)
ONE LIBERTY PLACE
1650 MARKET ST, SUITE 4900
PHILADELPHIA, PA 19103
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Christopher J. Crowley
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.
ICE-14-1680R 1636
EXAMINER
TRAN,HAI
ART UNIT PAPER NUMBER
3697
NOTIFICATION DATE DELIVERY MODE
09/25/2018 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):
pto. phil@dlapiper.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER J. CROWLEY and PETER BARSOOM
Appeal2016-008506 1
Application 14/700,34 72
Technology Center 3600
Before MICHAEL R. ZECHER, KENNETH G. SCHOPPER, and
TARA L. HUTCHINGS, Administrative Patent Judges.
HUTCHINGS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-17. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Our Decision references Appellants' Appeal Brief ("App. Br.," filed
May 20, 2016), Reply Brief ("Reply Br.," filed Sept. 14, 2016), and
Specification ("Spec.," filed Apr. 30, 2015), and the Examiner's Answer
("Ans.," mailed July 14, 2016) and Final Office Action ("Final Act.," mailed
Dec. 30, 2015).
2 Appellants identify Intercontinental Exchange Holdings, Inc., as the real
party in interest. App. Br. 1.
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CLAIMED INVENTION
The claimed invention generally relates to "systems and methods of
transforming data defining one or more initial portfolios (e.g., non-hedged
trading portfolios) into data defining one or more transformed portfolios
( e.g., hedged trading portfolios), for example, in connection with the
hedging of at least a portion of a futures contracts portfolio." Spec. ,r 1.
Claims 1, 9, and 1 7 are the independent claims on appeal. Claim 9,
reproduced below, is illustrative of the claimed subject matter:
9. A computer-implemented method for transforming
an initial portfolio into a transformed portfolio via an electronic
exchange server, said initial portfolio having an initial settlement
price, the electronic exchange server comprising one or more
computer devices, each comprising a processing component
executing computer-readable instructions that cause the
electronic exchange server to perform the steps of:
receiving, by the electronic exchange server, one or more
buy or sell orders of the initial portfolio to be transformed;
determining, by the electronic exchange server, an
imbalance in orders of the received one or more buy or sell
orders;
requesting, by the electronic exchange server, one or more
offsetting buy or sell orders to offset the imbalance within a
predefined time window;
receiving, by the electronic exchange server, one or more
offsetting buy or sell orders to offset the imbalance during or
before the predefined time window;
comparing, by the electronic exchange server, data of the
one or more buy or sell orders with data of the one or more
offsetting buy or sell orders;
pairing, by the electronic exchange server, the one or more
buy or sell orders with the one or more offsetting buy or sell
orders until the imbalance is completely offset;
determining, by the electronic exchange server, a final
auction price based on the paired orders;
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determining, by the electronic exchange server, an
adjustment amount based on the final auction price and a fixings
pnce;
applying, by the electronic exchange server, the
adjustment amount to the initial settlement price to determine a
final settlement price; and
applying, by the electronic exchange server, the final
settlement price to the initial portfolio to transform the initial
portfolio into the transformed polifolio;
wherein the request for one or more offsetting buy or sell
orders transmits the request over an Internet communication
channel to activate a stock viewer application to cause the request
to display on a remote subscriber computer and to enable
connection to the electronic exchange server over the Internet for
submission of the one or more offsetting buy or sell orders to
offset the imbalance during the predefined time window.
REJECTIONS 3
Claims 1-17 are rejected under 35 U.S.C. § 101 as directed to patent-
ineligible subject matter (i.e., they are directed to a judicial exception
without significantly more). Final Act. 3-11.
Claims 1-17 are rejected under 35 U.S.C. § 103 as unpatentable over
Williams (US 8,078,521 Bl, iss. Dec. 13, 2011) and Costakis
(US 2006/0173761 Al, pub. Aug. 3, 2006). Final Act. 15-21.
ANALYSIS
Patent-Ineligible Subject Matter
Under 35 U.S.C. § 101, an invention is patent-eligible if it claims a
"new and useful process, machine, manufacture, or composition of matter."
3 The Examiner's rejection of claims 1-17 as being indefinite under 35
U.S.C. § 112, second paragraph, has been withdrawn. Final Act. 3.
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35 U.S.C. § 101. The U.S. Supreme Court, however, has long interpreted
§ 101 to include an implicit exception: "[l]aws of nature, natural
phenomena, and abstract ideas" are not patentable. See, e.g., Alice Corp.
Pty. Ltd. v. CLS Bank Int'!, 134 S. Ct. 2347, 2354 (2014).
The Supreme Court, in Alice, reiterated the two-step framework
previously set forth 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, 134 S. Ct. at 2355.
The first step in that analysis is to "determine whether the claims at issue are
directed to one of those patent-ineligible concepts." Id. If the claims are not
directed to a patent-ineligible concept ( e.g., an abstract idea), the inquiry
ends. Otherwise, the inquiry proceeds to the second step where the elements
of the claims are considered "individually and 'as an ordered combination'"
to determine whether there are additional elements that "'transform the
nature of the claim' into a patent-eligible application." Id. (quoting Mayo,
566 U.S. at 79, 78).
In rejecting the pending claims under 35 U.S.C. § 101, the Examiner
determined that the claims comprise "a series of steps" including "receiving
buy/sell orders of an initial portfolio," "determining an imbalance,"
"requesting offsetting buy/sell orders," "receiving offsetting buy/sell
orders," "comparing the buy/sell orders," "pairing the buy/sell orders,"
"determining a final auction price," "determining an adjustment amount,"
"determining a final settlement price," and "applying the final settlement
price to the initial portfolio to transform the initial portfolio into a
transformed portfolio." Final Act. 4--5. The Examiner determined that
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"[ m ]anaging investment portfolios has been widespread used in the industry
and is considered to be a fundamental economic practice, which is in the
realm of abstract ideas." Id. at 5. The Examiner also determined that the
claimed invention is similar to other concepts that have been held by the
courts to be abstract, such as comparing new and old information, and using
rules to identify options. Id. Turning to the second step, the Examiner
determined that the claims do not include additional elements or a
combination of elements that is sufficient to amount to significantly more
than the judicial exception. Id. at 6-11.
Appellants argue that "the claims are not directed to managing
investment portfolios on a computer; rather, the claims are directed to
transforming a portfolio." App. Br. 6. Yet, we see no meaningful
distinction between transforming a portfolio and concepts that have been
deemed by the courts to be abstract ideas. See, e.g., OIP Technologies, Inc.
v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (price
optimization in an e-commerce environment is, "[ a ]t best, . . . the
automation of a fundamental economic concept of offer-based price
optimization through the use of generic-computer functions"); Bilski v.
Kappos, 561 U.S. 593, 609-11 (2010) (hedging risk in commodities
transactions is a method of organizing human activity and a fundamental
economic practice); Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350,
1353-54 (Fed. Cir. 2016) (determining that collecting information,
analyzing information by steps people go through in their minds, or by
mathematical algorithms, and presenting the results of collecting and
analyzing information, without more, are matters that fall within the realm of
abstract ideas). For example, similar to Appellants' claims, which involve
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gathering and processing data and result in applying the adjustment amount
to the initial settlement amount price and applying the final settlement price
to the initial portfolio, the method claims at issue in OIP Technologies
involved testing a plurality of prices, gathering statistics about customer
reaction, estimating outcomes, and automatically selecting and offering a
new price based on the estimated outcome. OIP Techs., 788 F.3d at 1362.
As another example, similar to the claims in Electric Power Group,
Appellants' claimed invention recites steps for collecting (e.g., "receiving,"
"requesting") and processing ( e.g., "determining," "pairing," "applying ...
the adjusted amount") information, and displaying the results ( e.g.,
"applying ... the final settlement price to the initial portfolio to transform
the initial portfolio into the transformed portfolio). Further, like the claims
at issue in Bilski, Appellants' claimed invention recites steps for applying a
final settlement price for a portfolio, which is a method of organizing human
activity and a fundamental economic practice similar to hedging risk.
We disagree with Appellants that the claimed remote stock viewer
application is similar to claim elements found unconventional in Example
21. Br. 6 ( citing the Office's July 2015 Guidance, 4 Example 21 ); see also id.
at 13-14 ( arguing that the claims are similar to Example 21 because they
include features for activating other components, causing other actions to
occur that are time-sensitive). Example 21 describes a hypothetical claim 1
as patent-ineligible, and a hypothetical claim 2 as patent-eligible. July 2015
Guidance 2-3. Patent-eligible claim 2 "recites a series of acts for
4 See July 2015 Update Appendix 1: Examples (available at
https://www.uspto.gov/sites/default/files/documents/ieg-july-2015-
appl.pdf).
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distributing stock quotes to selected remote devices." July 2015 Guidance 4.
Applying the first step of the Alice analysis, the Office's July 2015 Guidance
determines that steps of comparing and organizing data are a mental process,
similar to other concepts held by the courts to be abstract. Id. Turning to
the second step, the Office's July 2015 Guidance explains that some of the
additional limitations (e.g., storing subscriber preferences and transmitting
an alert), viewed individually, do not amount to significantly more than the
abstract idea. Id. However, when viewed as an ordered combination, the
claimed invention "amounts to significantly more than [ the abstract idea ofJ
organizing and comparing data" because it "addresses the Internet-centric
challenge of alerting a subscriber with time sensitive information when the
subscriber's computer is offline." Id. Specifically, it transmits an alert over
a wireless communication channel to activate the stock viewer application,
thereby causing the alert to display and enabling the subscriber's computer
to connect to the data source over the Internet when the remote subscriber's
computer comes online. Id.
We are not persuaded that the present claims address any comparable
Internet-centric challenge, such as patent-eligible claim 2 identified above in
Example 21. Instead, Appellants' claims recite that the request for one or
more offsetting buy or sell orders is transmitted over an Internet
communication channel to activate the stock viewer application: (i) to cause
the request for one or more offsetting buy or sell orders to display on a
remote subscriber computer, and (ii) to enable connection to the electronic
exchange server over the Internet for submission of the offsetting orders.
But there is no indication that these limitations, alone or in combination,
address an Internet-centric challenge akin to alerting a subscriber with time-
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senstive information when the subscriber's computer is offline. Instead,
these limitations (i.e., cause information to display and to enable a
connection) performed by the stock viewer application amount to no more
than generic functionality associated with a user interface. See Spec. ,r 15
( describing that a conventional user interface provides a connection through
which information can be conveyed to a user).
We are not persuaded by Appellants' argument that the claims are
"directed toward a new specialized computer system, namely, an electronic
exchange server that ... activates a specialized stock application viewer to
cause the request to display on a remote subscriber computer and to enable
connection to the electronic exchange server over the Internet." App. Br. 6.
Appellants contend that, "[ a ]t a minimum, the claims recite unique technical
features (including the specialized stock viewer application) that amount to
significantly more than an abstract idea." Id. We find no indication in the
Specification that the particular operations recited in the claims (e.g.,
activating the stock application viewer or causing the request to display and
to enable a connection) require any specialized computer hardware or other
inventive computer components, invoke any assertedly inventive
programming, or are implemented using other than generic computer
components to perform the generic functions recited in the claimed steps
( e.g., receiving, determining, requesting, comparing, pairing, and applying
data). See Spec. ,r,r 9--12, 15, 33; see also DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) ("[A]fter Alice, there
can remain no doubt: recitation of generic computer limitations does not
make an otherwise ineligible claim patent-eligible.").
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It also is significant here that, even though the claims recite the use of
an "electronic exchange server," "one or more computer devices," a "stock
viewer application," "an Internet communication channel," and a "remote
subscriber computer," the underlying processes recited in independent
claims 1, 9, and 17 are all acts that could be performed by a human ( e.g.,
manually with pen and paper) without the use of a computer. The U.S.
Court of Appeals for the Federal Circuit has held that, if a method can be
performed by human thought alone, or by a human using pen and paper, it is
merely an abstract idea and is not patent-eligible under § 101.
See CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372-73
(Fed. Cir. 2011) ("[A] method that can be performed by human thought
alone is merely an abstract idea and is not patent-eligible under§ 101.");
Gottschalkv. Benson, 409 U.S. 63, 67 (1972) ("[p]henomena of nature ... ,
mental processes, and abstract intellectual concepts are not patentable, as
they are the basic tools of scientific and technological work.").
Additionally, mental processes remain unpatentable even when automated to
reduce the burden on the user of what once could have been done with pen
and paper. CyberSource, 654 F.3d at 1375 ("That purely mental processes
can be unpatentable, even when performed by a computer, was precisely the
holding of the Supreme Court in Gottschalk v. Benson.").
Appellants argue that the claimed invention is "an improvement over
existing electronic trading software." App. Br. 7; see also Reply Br. 2--4
(attempting to draw a further analogy with the claims held patent-eligible in
Enfish). We recognize that "[s]oftware can make non-abstract
improvements to computer technology, just as hardware improvements can."
Enfish, LLC v. Microsoft Corp., 822 F.3d. 1327, 1335 (Fed. Cir. 2016).
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However, the relevant inquiry at step one is whether the claims are directed
to an improvement to computer functionality versus an abstract idea, such as
"economic or other tasks for which a computer is used in its ordinary
capacity." Id. at 1336. Here, the focus of the claims is on economic tasks
(i.e., an improved process for transforming a portfolio, which is an abstract
idea) for which computers are invoked merely as a tool, and not a specific
asserted improvement in computer capabilities analogous to Enfzsh 's self-
referential table for a computer database. Id. We find no parallel between
the present claims and the claims in Enfzsh, nor any comparable aspect in the
present claims that represents "an improvement to computer functionality."
We also are not persuaded that the claims are comparable to the
claims at issue in DDR Holdings because they are computer-centric. App.
Br. 8-11. Appellants contend that the claimed invention eliminates various
additional processes required by prior art systems to correct inaccurate
settelement prices, thereby improving system efficiency and saving system
resources. See App. Br. 8-11; see also id. at 10 ("eliminating wasteful
processing is also necessarily computer-centric insofar as it represents a
technical solution to a technical problem that only exists in the realm of
computers."). Appellants also assert that the claims improve overall system
efficiency "by only activating the claimed stock viewer application when the
request is transmitted over the Internet by the electronic exchange system."
Id. at 11. As an initial matter, we find nothing in the record, short of
attorney argument, attributing an improvement in computer capabilities or a
solution to a problem rooted in technology to the claimed invention. See
Icon Health and Fintness, Inc. v. Strava, Inc., 849 F.3d 1034, 1043 (Fed.
Cir. 2017) ("[ a ]ttorney argument is not evidence") ( citations omitted).
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Instead, the Specification makes clear that the claimed invention is directed
to addressing problems in the management of portfolios, such as
transforming a non-hedge portfolio into a hedged portfolio. See Spec. ,r,r 2-
4, 8.
Moreover, as the court cautioned in DDR Holdings, "not all claims
purporting to address Internet-centric challenges are eligible for patent."
773 F.3d at 1258. Here, the improvements Appellants tout (e.g., elimination
of functions required when orders are traded at inaccurate prices) pertain to
an improvement to a process that itself is an abstract idea (i.e., transforming
a portfolio). Unlike the situation in DDR Holdings, we find no indication
that Appellants' claims are necessarily rooted in technology to overcome a
problem specifically arising in the realm of computer networks, nor that the
claims change the routine, conventional functioning of computer networks.
See DDR Holdings, 773 F.3d at 1257 (determining that the claims changed
the routine, conventional functioning of Internet hyperlink protocol).
We also are not persuaded by Appellants' argument that the present
claims are analogous to the claims at issue in Diamond v. Diehr, 450 U.S.
17 5 ( 1981) because they include features such as activating separate
components. App. Br. 11-12. Specifically, Appellants posit that "the
electronic exchange server provides a mechanism for determining and
controlling when the stock viewer application is activated and what
functions it performs," which is "much like the press in Die hr that had a
computer program causing it to open and close." Id. at 12. Yet, activating a
stock viewer application based on a request, as recited in the claims, is an
abstract idea akin to performing an action based on the occurrence of an
event. See, e.g., Accenture Global Servs., GmbH v. Guidewire Software,
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Inc., 728 F.3d 1336, 1344 (generating tasks to be completed on the
occurance of an event is an abstract idea); Parker v. Flook, 437 U.S. 584,
594 (1978) (monitoring chemical processing variables and using alarm limits
to trigger alarms is an abstract idea).
In Diehr, the Supreme Court held that a computer-implemented
process for curing rubber was patent eligible because, even though it
employed a well-known mathematical equation, it used the equation in a
process to solve a technological problem in conventional industry practice.
See Diehr, 450 U.S. at 185-93. We find no analogous technological
problem addressed by Appellants' claims. Instead, the present claims are
directed to receiving and processing data to adjust the initial settlement price
of a portfolio, which, as we explain above, is an abstract idea. The claims
merely use generic computer components to carry out the abstract idea.
We also are not persuaded of Examiner error by Appellants' argument
regarding preemption. App. Br. 15-16. There is no dispute that the
Supreme Court has described "the concern that drives [ the exclusion of
abstract ideas from patent eligible subject matter] as one of pre-emption."
Alice, 134 S. Ct. at 2354. But characterizing preemption as a driving
concern for patent eligibility is not the same as characterizing preemption as
the sole test for patent eligibility. "The Supreme Court has made clear that
the principle of preemption is the basis for the judicial exceptions to
patentability" and, "[ f]or this reason, questions on preemption are inherent in
and resolved by the§ 101 analysis." Ariosa Diagnostics, Inc. v. Sequenom,
Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015) (citing Alice, 134 S. Ct. at 2354).
"[P]reemption may signal patent ineligible subject matter, [but] the absence
of complete preemption does not demonstrate patent eligibility." Id.
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We also cannot agree that the Examiner has not met his/her burden of
establishing a rejection under 35 U.S.C. § 101. App. Br. 17-18. The
Federal Circuit has repeatedly observed that "the prima facie case is merely
a procedural device that enables an appropriate shift of the burden of
production." Hyatt v. Dudas, 492 F.3d. 1365, 1369 (Fed. Cir. 2007) (citing
In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)). The Federal Circuit
has, thus, held that the Office carries its procedural burden of establishing a
prima facie case when its rejection satisfies the requirements of 35 U.S.C.
§ 132 by notifying the applicant of the reasons for the rejection, "together
with such information and references as may be useful in judging of the
propriety of continuing the prosecution of [the] application." See In re Jung,
637 F.3d 1356, 1362 (Fed. Cir. 2011). Consequently, all that is required of
the Office is that it sets forth the statutory basis of the rejection in a
sufficiently articulate and informative manner as to meet the notice
requirement of§ 132. Id.; see also Chester v. Miller, 906 F.2d 1574, 1578
(Fed. Cir. 1990) (Section 132 "is violated when a rejection is so
uninformative that it prevents the applicant from recognizing and seeking to
counter the grounds for rejection."). Here, the Examiner set forth the
statutory basis of the rejection in a sufficiently articulate and informative
manner as to meet the notice requirement of§ 132. Appellants cannot
reasonably maintain that the rejection was not understood or that the
rejection otherwise fails to satisfy the notice requirement of§ 132. Indeed,
Appellants' understanding of the rejection is plainly manifested by
Appellants' responses, as set forth in their briefs.
In the Reply Brief, Appellants additionally argue that the claims are
analogous to the claims in BASCOM Global Internet Services, Inc. v. AT&T
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Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016). Reply Br. 4--5. Specifically,
Appellants contend that the claims improve data accuracy, thereby
improving the overall operating efficiency and speed. Id. at 5. However, in
BASCOM, the Federal Circuit decided at step two of the analysis that the
claimed invention represents a "technology-based solution ... to filter
content on the Internet that overcomes existing problems with other Internet
filtering systems ... making it more dynamic and efficient." BASCOM, 827
F .3 d at 13 51 ( citations omitted). Here, in contrast, the alleged advantages
that Appellants tout concern an improvement to the process for transforming
a portfolio itself, not an improvement to computer capabilities or to a
computer system itself.
We are not persuaded, on the present record, that the Examiner erred
in rejecting claims 1-17 under 35 U.S.C. § 101. Therefore, we sustain the
Examiner's§ 101 rejection.
Obviousness
In rejecting claims 1, 9, and 1 7 under 3 5 U.S. C. § 10 3, the Examiner
relies on Williams to teach or suggest most of the limitations rectied in these
claims. Final Act. 15-17. The Examiner acknowledges, however, that
Williams does not teach or suggest, among other things, to receive "one or
more offsetting buy or sell orders to offset the imbalance during or before
the predefined time window," as recited in claim 1, and similarly recited in
claims 9 and 1 7. Final Act. 17. The Examiner relies on Costakis for this
teaching. Id. (citing Costakis ,r,r 8, 24, 136-37, 141--44; Fig. 5); see also id.
("Williams does not explicitly disclose the offsetting features).
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Costakis describes a virtual specialist program that engages in trading
to offset price volatility and provide liquidity to the market. Costakis ,r 8.
The virtual specialist program handles fulfillment of buy and sell orders,
providing "instantaneous liquidity by fulfilling all orders, whether or not
there are equal and matching sell orders to offset buy orders, and vice
versa." Id. ,r 24. The system keeps a running net movement balance for the
quantity of buy or sell trades fulfilled by the virtual specialist program
without offsetting sell or buy trades. Id. The virtual specialist program
regulates trading by trading out of a virtual specialist portfolio ("VSP") that
initially contains half of all issued shares of each derivative financial
instrument. Id. ,r 140. Specifically, the virtual specialist program trades out
of the VSP when price movement during a particular sweep pricing cycle
meets or exceeds an adjusted price movement threshold (APT). Id. ,r 141.
A greater price movement results in more shares being traded to offset the
price movement. Id.
Appellants argue, and we agree, that Costakis does not teach or
suggest receiving one or more offsetting buy or sell orders to offset the
imbalance during or before the predefined time window, as required by
claims 1, 9, and 1 7, because Costakis' s virtual specialist program fulfills all
orders regardless of whether there are equal, and matching sell orders to
offset buy orders, and vice versa. App. Br. 18-19 (citing Costakis ,r 24).
In view of the foregoing, we do not sustain the Examiner's rejection
under 35 U.S.C. § 103 of independent claims 1, 9, and 17, and the claims
depending therefrom.
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DECISION
The Examiner's rejection of claims 1-17 under 35 U.S.C. § 101 is
affirmed.
The Examiner's rejections of claims 1-17 under 35 U.S.C. § 103 is
reversed.
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, the Examiner's decision is affirmed.
See 37 C.F.R. § 4I.50(a)(l).
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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