Ex Parte Larson

Patent Trial and Appeal Board

Mar 31, 2014

11765774 (P.T.A.B. Mar. 31, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ERIC A. LARSON
____________

Appeal 2011-008495
Application 11/765,774
Technology Center 3700
____________

Before EDWARD A. BROWN, ANNETTE R. REIMERS and
MITCHELL G. WEATHERLY, Administrative Patent Judges.

REIMERS, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Eric A. Larson (Appellant) appeals under 35 U.S.C. § 134(a) from the
Examiner’s decision to reject under 35 U.S.C. § 103(a): (1) claims 1, 2, 4,
6-8, 12, 13, 15, 16, 19, 20, 24, 25, 27, 29-31, 35, 36, 38 and 78-84 as
unpatentable over Jensen (US 5,584,770; iss. Dec. 17, 1996), MacIlraith (US
7,108,611 B2; iss. Sep. 19, 2006) and Beach (US 2005/0221911 A1; pub.
Oct. 6, 2005); and (2) claims 85-88 as unpatentable over Jensen, MacIlraith,
Beach and Mahaffey (US 2003/0232659 A1; pub. Dec. 18, 2003). Claims 3,
5, 9-11, 14, 17, 18, 21-23, 26, 28, 32-34, 37 and 39-77 have been canceled.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
The claimed subject matter “relate[s] to golf clubs and golf club heads
having movable weight members and adjustable weighting characteristics.”
Spec., para. [01]; figs. 1, 2A, 9A. Claims 1, 19, 20, 24, 38 and 84 are
independent.
Claim 1 is illustrative of the claimed subject matter and recites:
A golf club head comprising:
an iron type golf club head body including a ball striking
face and a perimeter weighting member extending rearward
from the ball striking face and along at least a portion of a
circumferential area of the golf club head body, wherein the
perimeter weighting member defines a first weight receiving
portion, and wherein the golf club head body defines a second
weight receiving portion independent of the first weight
receiving portion;
a first weight member removably engaged with the golf
club head body at one of the first or second weight receiving
portions, wherein the first weight member is engagable with the
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golf club head body at each of the first and second weight
receiving portions; and
a second weight member removably engaged with the
golf club head body at one of the first or second weight
receiving portions, wherein the second weight member is
engagable with the golf club head body at each of the first and
second weight receiving portions,
wherein the first and second weight members are
engaged with different weight receiving portions,
wherein the first and second weight members have
different weighting characteristics from one another,
wherein the first weight receiving portion is located at a
first vertical position with respect to the golf club head body
and the second weight receiving portion is located at a second
vertical position with respect to the golf club head body,
wherein the first vertical position is higher than the second
vertical position when the club head body is oriented at a ball
addressing orientation,
wherein when the first weight member is engaged with
the first weight receiving portion and the second weight
member is engaged with the second weight receiving portion,
the club head has a higher center of gravity than when the first
weight member is engaged with the second weight receiving
portion and the second weight member is engaged with the first
weight receiving portion.

ANALYSIS
Obviousness over Jensen, MacIlraith and Beach
Claims 1, 2, 4, 6-8, 12, 13, 15, 16, 19, 20, 24, 25, 27, 29-31, 35, 36, 38 and
78-84
Appellant does not present arguments for claims 2, 4, 6-8, 12, 13, 15,
16, 19, 20, 24, 25, 27, 29-31, 35, 36, 38 and 78-84 separate from those
presented for independent claim 1. App. Br. 20-26. Accordingly, Appellant
has argued claims 1, 2, 4, 6-8, 12, 13, 15, 16, 19, 20, 24, 25, 27, 29-31, 35,
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36, 38 and 78-84 as a group for purposes of the rejection of those claims
under § 103(a). Claim 1 is representative of the group and is selected for
review, with claims 2, 4, 6-8, 12, 13, 15, 16, 19, 20, 24, 25, 27, 29-31, 35,
36, 38 and 78-84 standing or falling with claim 1. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2011).
Independent claim 1 calls for a golf club head including first and
second weight members and first and second weight receiving portions,
wherein the golf club head has a higher center of gravity when the first
weight member is engaged with the first weight receiving portion and the
second weight member is engaged with the second weight receiving portion
than when the first weight member is engaged with the second weight
receiving portion and the second weight member is engaged with the first
weight receiving portion. App. Br., Clms. App’x.
The Examiner found that Jensen discloses the majority of the
limitations of claim 1 except that Jensen does not explicitly disclose the
limitation “wherein that the first weight member is engagable with the golf
club head body at each of the first and second weight receiving portions and
that the second weight member is engagable with the golf club head body at
each of the first and second weight receiving portions.” Ans. 5 (emphasis
omitted). The Examiner found that “MacIlraith discloses this structure (Fig.
7; noting weight member 75 is engagable at a first and second location).”
Id. The Examiner concluded that
it would have been obvious to one of ordinary skill
in the art at the time of the invention to modify
Jensen to use a first and second weight member
engagable at a first and second location as taught
by MacIlraith because doing so would be applying
a known technique (the ability to use a detachable,
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fungible weight[] at either of two known locations)
to a known product (a golf club with a weight
segment that appears to be fungible in nature)
ready for improvement to yield predictable results
(the ability to place any of the weight segments at
a first and second location because they are
fungible in nature).

Id. at 5-6. The Examiner further found that
the combined [teachings of] Jensen and MacIlraith
do not specifically disclose that when the first
weight member is engaged with the first weight
receiving portion and the second weight member is
engaged with the second weight receiving portion
the club head has a higher center of gravity than
when the first weight member is engaged with the
second weight receiving portion and the second
weight member is engaged with the first weight
receiving portion.

Id. at 6 (emphasis omitted). However, the Examiner reasoned
that
Jensen specifically states that the segments can be
made from “any combination of material” (col. 7,
line 39). In addition, MacIlraith specifically states
that the weights may “vary in density” (col. 3,
lines 34-36; the Examiner noting because the
weights would be of different materials/densities,
using them at different locations would inherently
change the center of gravity up and down). As
such, the Examiner believes that the functional
limitation can be met by varying the
material/density of the first and second weight
members to achieve the desire[d] effect (see
Jensen: col. 7, lines 37-42; noting “customization
of the club”). Finally, Beach et al. discloses the
use of interchangeable weights with different
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densities/materials to vary the center of gravity
heel to toe and front to back (par. [0061] and
[0064]).

Ans. 6. The Examiner concluded that
it would have been obvious to one of ordinary skill
in the art at the time of the invention to modify the
combined Jensen and MacIlraith to use different
density first and second weights to change the
center of gravity as suggested by Jensen,
MacIlraith, and Beach et al. because doing so
would be known to work in the field of endeavor
(using weights of various densities/materials to
change the center of gravity heel to toe of a golf
club) prompting the variation of it (using weights
of various densities/materials to change the center
of gravity up and down in a golf club) for use in
the same field (golf clubs).
Id.
Appellant contends that (1) “MacIlraith does not teach or suggest any
removable or interchangeable weights in a perimeter weighting member of
the iron-type golf club head 1”; and (2) in figure 7 of MacIlraith “the
weights 75 appear to be the same size and, further, there is no teaching or
suggestion that these same size weights 75 have any different weighting
characteristics.” App. Br. 22.
Appellant’s arguments are not persuasive. At the outset, we note that
MacIlraith does not indicate that Figure 7 is drawn to scale, and, as such,
Figure 7 of MacIlraith cannot be relied upon to definitively establish that
weights 75 are the same size, as Appellant contends.1 “[P]atent drawings do

1 MacIlraith discloses that “[t]o this rear cover 71, there are fastened two
weights 75. MacIlraith, col. 5, ll. 47-48. We note that MacIlraith fails to
disclose that weights 75 are the same.
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not define the precise proportions of the elements and may not be relied on
to show particular sizes if the specification is completely silent on the issue.”
Hockerson-Halberstadt, Inc. v. Avia Group. Int’l, Inc., 222 F.3d 951, 956
(Fed. Cir. 2000). Here, the Examiner found that
MacIlraith shows a first and second weight that are
fungible in size and shape (Fig. 7, items 75; noting
they are both labeled item “75”) used in
conjunction with an iron (the same as Jensen).
That is, the two weights may be switched from the
top and bottom locations. In addition, MacIlraith
also discloses that the weights may be of different
densities [i.e., the weights have different weighting
characteristics].

Final Rej. 19; see also Ans. 6, 22. Appellant has not provided any
persuasive argument or evidence of error regarding the Examiner’s stated
reasoning or conclusions.
Appellant further contends that
upon a fair reading of Beach, Beach is concerned
with providing only a low center of gravity of the
golf club head 28. Hence, one of ordinary skill in
that art would not be motivated by Beach to create
a golf club head with a high center of gravity.
Therefore, not only does Beach fail to cure the
deficiency of Jensen, as modified by MacIlraith,
Beach actually teaches away from this claimed
feature.
App. Br. 24.
Appellant’s arguments are not persuasive because simply identifying
that there are differences between two references is insufficient to establish
that such references “teach away” from any combination thereof. See In re
Beattie, 974 F.2d 1309, 1312-13 (Fed. Cir. 1992). In addition, to teach
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away, a reference must actually criticize, discredit, or otherwise discourage
the claimed solution. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)
(prior art does not teach away from claimed subject matter merely by
disclosing a different solution to a similar problem unless the prior art also
criticizes, discredits, or otherwise discourages the solution claimed). In this
case, we agree with the Examiner that Beach discloses “fungible weights
(noting in Beach et al. the weights also have different densities) that can be
moved to different locations.” Final Rej. 19; see also Ans. 6.
Beach does not in any way criticize, discredit, or otherwise discourage
the use of a golf club head with a high center of gravity. See Beach, paras.
[0064], [0065]; see also Ans. 6. To the contrary, Beach discloses (1) “[e]ach
weight configuration (i.e., 1 through 6 [of Table 1]) corresponds to a
particular effect on launch conditions and, therefore, a struck golf ball’s
motion path” (Beach, para. [0064], Table 1); (2) “[i]n the second
configuration, the club head CG [Center of Gravity] is in a center-front
location, resulting in a lower launch angle and lower spin-rate for optimal
control” (Beach, para. [0064]); and (3) “[f]or example, if hitting into high
wind, the golfer may choose a golf ball motion path with a low trajectory,
(e.g., the second configuration)[2]” (Beach, para. [0065]) (emphasis added).
Here, similar to the claimed invention, Beach discloses that changes in
the center of gravity of the club head can affect the trajectory and ball flight

2 The Specification describes that “the configuration which produces a
higher center of gravity in the golf club head (Figure 9A) can provide a more
boring [lower trajectory] golf ball flight path, e.g. for play in windy
conditions, to provide more ‘running’ shots, and/or to help compensate for
swing flaws that typically produce an excessively high ballooning flight.”
Spec., para. [60], fig. 9A (emphasis added).
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of a golf ball struck by the golf club. See Beach, paras. [0064], [0065], fig.
6; see also Spec., para. [60]. We agree with the Examiner that Beach
discloses that “the concept of using different materials/densities in weights
in order to shift the center of gravity is not a novel concept and is well
known in the art.” Ans. 22; see also Final Rej. 19. As such, we find that the
disclosure of Beach does not teach away from Appellant’s claimed
invention.
Appellant further contends that
none of Jensen, MacIlraith, or Beach, alone or in
combination, teaches or suggests the recited
feature:
wherein when the first weight
member is engaged with the first
weight receiving portion and the
second weight member is engaged
with the second weight receiving
portion, the club head has a higher
center of gravity than when the first
weight member is engaged with the
second weight receiving portion and
the second weight member is engaged
with the first weight receiving
portion.
App. Br. 24. Specifically, Appellant contends that
MacIlraith appears to be concerned with heel-to-
toe movement of the weights 75, not vertical
movement. . . . Additionally, as also conceded by
the Examiner, Beach discloses weight
configurations which vary the club head CG
between the heel and toe of the golf club head and
the front and back of the golf club head.
Reply Br. 5; see also App. Br. 22-23.
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Appellant’s arguments are not persuasive. To the extent that
Appellant is arguing the references must be capable of bodily incorporation
in order to combine their teachings, the test for obviousness is not whether
the features of a secondary reference may be bodily incorporated into the
structure of a primary reference. In re Keller, 642, F.2d 413, 425 (CCPA
1981). “Rather, the test is what the combined teachings of the references
would have suggested to those of ordinary skill in the art.” Id. (citations
omitted). The Examiner has relied on each applied reference for its
particular teachings. Based on the combined teachings of Jensen, MacIlraith
and Beach, we agree with the Examiner that it would have been obvious to
the skilled artisan
to modify the combined Jensen and MacIlraith to
use different density first and second weights to
change the center of gravity as suggested by
Jensen, MacIlraith, and Beach et al. because doing
so would be known to work in the field of
endeavor (using weights of various
densities/materials to change the center of gravity
heel to toe of a golf club) prompting the variation
of it (using weights of various densities/materials
to change the center of gravity up and down in a
golf club) for use in the same field (golf clubs).
Ans. 6. As such, we find that the Examiner’s articulated reasoning for
combining the reference teachings in the manner claimed to be based upon
rational underpinnings. Appellant has not shown that the Examiner’s
reasons for combining the teachings of these references are in error.
Appellant contends that
Beach is directed to wood-type golf club heads,
such as drivers or fairway woods. . . . In contrast,
the portions of Jensen and MacIlraith on which the
Office relies are directed to putter or iron-type golf
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club heads. . . . Appellant respectfully submits one
of ordinary skill in the art would simply not be
motivated to modify the putter-type structure of
Jensen and/or the iron-type structure of MacIlraith
based on the wood-type structure of Beach.
App. Br. 25.
In response to Appellant’s arguments, the Examiner stated that
the Examiner does not agree that motivation to
combine art is limited based on whether the prior
art is directed towards a putter, an iron, or a wood
type club. The principles of shifting the center of
gravity by using weights is well known in all three
constructions. One of ordinary skill in the art
would look to all three types of clubs to solve the
relevant problem.
Ans. 23. Appellant has not provided any persuasive argument or evidence
of error regarding the Examiner’s stated reasoning or conclusions.
Appellant contends that “while the Examiner alleges that ‘raising the
center of gravity [in an iron-type golf club head] is nothing more than a
customization of the club (See the Answer at page 23)’, the Examiner has
not produced a single reference which shows this feature.” Reply Br. 5. We
disagree.
The Examiner found that “[i]n light of both disclosures Jensen and
MacIlraith stating that the weights may be made from different
materials/densities, the ability to shift the center of gravity either up or down
is obvious and completely a user preference or design choice.” Ans. 23.
The Examiner further cited specifically to Jensen, col. 7, ll. 37-42, which
states that
[i]t may clearly be seen that with this third
embodiment, great flexibility is achieved as not
only may the material be changed but any
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combination of material may be used with
different segments and the actual width or breadth
may be changed in one set of segments to
customize a club for an individual player.
Id. The Examiner concluded that “raising the center of gravity is nothing
more than ‘customization’ of the club for the individual player.”3 Id.
Appellant has not apprised us of error regarding the Examiner’s stated
reasoning or conclusions.
Appellant contends that the Examiner’s motivation to combine the
teachings of Jensen, MacIlraith and Beach uses impermissible hindsight.
App. Br. 26.
Appellant’s argument is not persuasive. As discussed above, we find
that the Examiner set forth a reasonable rationale underlying the conclusion
of obviousness. Therefore, the Examiner did not rely on impermissible
hindsight but rather relied on the knowledge of one skilled in the art at the
time of the invention. Appellant has not provided any persuasive argument
or evidence to the contrary.
Accordingly, for the foregoing reasons, the Examiner’s rejection of
claim 1 and claims 2, 4, 6-8, 12, 13, 15, 16, 19, 20, 24, 25, 27, 29-31, 35, 36,
38 and 78-84, which stand or fall with claim 1, as unpatentable over Jensen,
MacIlraith and Beach is sustained.
Obviousness over Jensen, MacIlraith, Beach and Mahaffey
Claim 85

3 We note that MacIraith describes that “a golf club is disclosed which
enables customizing the weight, appearance, feel, and performance of the
golf club to each golfer[’]s unique needs, desires, and physiology.”
MacIlraith, col. 1, ll. 22-25 (emphasis added).
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Appellant has not apprised us of error in the Examiner’s findings and
conclusions regarding the combined teachings of Jensen, MacIlraith, Beach
and Mahaffey. App. Br. 26. Appellant merely reiterates the claim language
for claim 85. Id. Merely reciting the language of the claim and asserting
that the cited prior art references do not disclose each claim limitation is
insufficient. See 37 C.F.R. § 41.37(c)(1)(vii) (“A statement which merely
points out what a claim recites will not be considered an argument for
separate patentability of the claim.”); see also In re Lovin, 652 F.3d 1349,
1357 (Fed. Cir. 2011) (“we hold that the Board reasonably interpreted Rule
41.37 to require more substantive arguments in an appeal brief than a mere
recitation of the claim elements and a naked assertion that the corresponding
elements were not found in the prior art.”). Consequently, Appellant’s
argument is unpersuasive.
Accordingly, we sustain the Examiner’s rejection of claim 85 as
unpatentable over Jensen, MacIlraith, Beach and Mahaffey.
Claim 86
Appellant does not present separate arguments directed to claim 86.
See App. Br., generally. As such, Appellant has waived any argument of
error, and we summarily sustain the Examiner’s rejection of claim 86 as
unpatentable over Jensen, MacIlraith, Beach and Mahaffey. See In re
Berger, 279 F.3d 975, 984 (Fed. Cir. 2002) (holding that the Board did not
err in sustaining a rejection under 35 U.S.C. § 112, second paragraph, when
the applicant failed to contest the rejection on appeal)4.

4 See also Manual of Patent Examining Procedure (MPEP) § 1205.02 (8th
Ed., Rev. 9, Aug. 2012) (“if a ground of rejection stated by the examiner is
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Claims 87 and 88
Appellant does not present arguments for claim 88 separate from
those presented for claim 87. App. Br. 26-28. Accordingly, Appellant has
argued claims 87 and 88 as a group for purposes of the rejection of those
claims under § 103(a). Claim 87 is representative of the group and is
selected for review, with claim 88 standing or falling with claim 87. See 37
C.F.R. § 41.37(c)(1)(vii) (2011).
Appellant contends that “[c]laims 87 and 88 ultimately depend from
claim 84. Therefore, all [the previous arguments] apply with equal force to
the rejection of claims 87 and 88, and the final rejection of claims 87 and 88
should be reversed for the reasons described above in conjunction with claim
84.” App. Br. 26. As discussed above, these arguments are not persuasive.
Appellant further contends that
there is no teaching or suggestion in Mahaffey that
the C - shaped peripheral weight 22 is configured
to be engaged with the golf club head 2 in a first
state in which the first longitudinal end of the C –
shaped peripheral weight 22 is nearer a heel
portion of the golf club head 2, and also in a
second state in which the first longitudinal end of
the C - shaped peripheral weight 22 is nearer a toe
portion of the golf club head 2. Therefore,
Mahaffey fails to teach or suggest the recited
feature of claim 87 and, as a result, cannot cure the
deficiencies of Jenson in view of MacIlraith, and
further in view of Beach.
App. Br. 27. We disagree.

not addressed in the appellant’s brief, that ground of rejection will be
summarily sustained by the Board.”).
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Mahaffey discloses that “[t]he weight 22 . . . can have a variable
[weight] distribution so that when it is connected with the head, more weight
can be provided in a particular region of the head, either rearwardly or more
toward the toe or heel portion as desired.” Mahaffey, para. [0019]
(emphasis added); see also Mahaffey, paras. [0010], [0030]; Ans. 20-21. In
other words, depending on the desires of the golfer to match the club head
with the golfer’s swing, the C-shaped peripheral weight 22 of Mahaffey is
capable of being engaged with the golf club head 2 in a first state in which
the first longitudinal end of the C-shaped peripheral weight 22 is nearer a
heel portion of the golf club head 2 and also in a second state, in which the
first longitudinal end of the C-shaped peripheral weight 22 is nearer a toe
portion of the golf club head 2.
Appellant contends that
Mahaffey actually teaches away from the features
of claim 87, because, due to its inherent shape and
the shape of the golf club head 2, the C - shaped
peripheral weight 22 of Mahaffey cannot be
properly engaged with the elongated recess 20 of
the golf club head 2 in both the first and second
states recited in claim 87. See e.g., FIG. 2 of
Mahaffey. Hence, not only does Mahaffey fail to
cure the deficiencies of Jenson in view of
MacIlraith, and further in view of Beach, it
actually teaches away from the recited feature.
App. Br. 27.
Appellant’s arguments are not persuasive. Mahaffey does not in any
way criticize, discredit, or otherwise discourage the use of the C-shaped
peripheral weight 22 in both a first and a second state. See Mahaffey, paras.
[0010], [0019], [0030]; see also Ans. 20-21. To the contrary, as discussed
above, depending on the desires of the golfer to match the club head with the
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golfer’s swing, the C-shaped peripheral weight 22 of Mahaffey is capable of
being engaged with the golf club head 2 in a first state in which the first
longitudinal end of the C-shaped peripheral weight 22 is nearer a heel
portion of the golf club head 2 and also in a second state, in which the first
longitudinal end of the C-shaped peripheral weight 22 is nearer a toe portion
of the golf club head 2. We agree with the Examiner that “Mahaffey teaches
a weight segment that is variable . . . . Variable weighting over the length of
the segment is [shown] to be known in the art by Mahaffey.” Ans. 23.
Thus, we find that the disclosure of Mahaffey does not teach away from
Appellant’s claimed invention.
Appellant contends that
the Examiner alleges that the weight in Jensen (as
modified by MacIlraith and Beach and Mahaffey)
can be “flipped” in order to disclose the claimed
feature. . . . However, there is no teaching in
Jensen (or any of the cited references) of flipping
the weights. Therefore, simply stated, none of
Jensen, MacIlraith, Beach and Mahaffey, alone, or
in combination, teach or suggest the features of
claim 87 and Appellant respectfully submits that
the multiple proposed modifications to Jensen
designed to arrive at the claimed features are based
on impermissible hindsight.
App. Br. 27.
Appellant’s arguments are not persuasive. The Examiner found that
Mahaffey teaches a weight segment that is
variable. The Examiner thinks the shape of the
weight segment is irrelevant. Variable weighting
over the length of the segment is proved to be
known in the art by Mahaffey. One of ordinary
skilled in the art could use this principle in either a
linear or curved segment. In addition, the
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Examiner notes that because MacIlraith discloses a
fungible weight, it is obvious that this weight can
be flipped. That is the entire principle of a
fungible weight (i.e. being the same in shape). The
weight can be mounted in either direction (esp. see
MacIlraith: Fig. 7, item 75; noting the weight can
be flipped because it is fungible).
Ans. 24-25. Appellant has not provided any persuasive argument or
evidence of error regarding the Examiner’s stated reasoning or conclusions.
Moreover, we agree with the Examiner that it would have been obvious to
the skilled artisan
to modify the combined Jensen, MacIlraith, and
Beach et al. to use a weight that has variable
weight distribution as taught by Mahaffey et al.
because doing so would be combining prior art
elements (a weight segment and a weight segment
that is variable such that it is heavier on one end)
according to know[n] methods (a simple
substitution of one for the other) to yield
predictable results (using a variable weight
segment on a golf club such that one end is heavier
than the other).
Ans. 20-21. Appellant has not provided any evidence or argument sufficient
to show that such a substitution or improvement (1) would have been
beyond the level of ordinary skill in the art; or (2) would have been more
than a predictable use of the prior art elements according to their established
functions. Consequently, the Examiner did not rely on impermissible
hindsight but rather relied on the knowledge of one skilled in the art at the
time of the invention.
Accordingly, for the foregoing reasons, the Examiner’s rejection of
claim 87, and claim 88, which stands or falls with claim 87, as unpatentable
over Jensen, MacIlraith, Beach and Mahaffey is sustained.
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DECISION
We AFFIRM the decision of the Examiner to reject claims 1, 2, 4, 6-
8, 12, 13, 15, 16, 19, 20, 24, 25, 27, 29-31, 35, 36, 38 and 78-84 as
unpatentable over Jensen, MacIlraith and Beach.
We AFFIRM the decision of the Examiner to reject claims 85-88 as
unpatentable over Jensen, MacIlraith, Beach and Mahaffey.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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