DUKE MANUFACTURING CO.

Patent Trials and Appeals Board

Dec 22, 2021

2020005464 (P.T.A.B. Dec. 22, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
15/055,346 02/26/2016 Canyon DeVille DKE 9898.US 1049
321 7590 12/22/2021
STINSON LLP
7700 FORSYTH BOULEVARD, SUITE 1100
ST LOUIS, MO 63105
EXAMINER
YOON, ERIC
ART UNIT PAPER NUMBER
2143
NOTIFICATION DATE DELIVERY MODE
12/22/2021 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):
stl.uspatents@stinson.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CANYON DEVILLE, JOSHUA LEE LOY,
ORD LIEF DELANEY, NORMAN J. BERNARD, and
ANTHONY HORTON
Appeal 2020-005464
Application 15/055,346
Technology Center 2100
Before MARC S. HOFF, JOHN A. EVANS, and
JOYCE CRAIG, Administrative Patent Judges.
CRAIG, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision rejecting claims 25–36 and 38–54, which are all of the
pending claims. Claims 1–24 and 37 have been cancelled. Final Act. 2. We
have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM IN PART.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a) (2019). Appellant identifies Duke Manufacturing Co. as
the real party in interest. Appeal Br. 1.
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CLAIMED SUBJECT MATTER
The claims are directed to systems and methods for managing food in
food preparation establishments such as restaurants. See Spec. ¶ 2. Claim 25,
reproduced below, illustrates the claimed subject matter:
25. A food management system for managing food in a
food holding apparatus having a plurality of holding locations,
the food management system including:
a food management controller configured for monitoring
a status of the plurality of holding locations,
a user interface including a plurality of holding location
displays associated with respective holding locations for
displaying information associated with the holding locations,
the holding location displays being arranged in an array
corresponding to an arrangement of the respective holding
locations, the holding location displays being positioned in the
array corresponding to positions of the respective holding
locations in the arrangement, each holding location display
including a touch sensitive area defining a button that can be
actuated by at least a first type of user engagement with the
button,
a non-transitory tangible storage medium having food
management controller executable instructions stored therein,
said instructions, when executed by the food management
controller, displaying on each holding location display current
status of operation information representing a current status of
operation of the respective holding location, the tangible
storage medium storing food management controller executable
instructions to execute a first operation when a first current
status of operation is displayed on the holding location display
and the button is actuated by the first type of user engagement,
and to execute a second operation different than the first
operation when a second current status of operation is displayed
on the holding location display and the button is actuated by the
first type of user engagement, whether the first or second
operation is executed being based on the corresponding first or
second status of operation displayed on the holding location
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display when the button is actuated by the first type of user
engagement,
wherein the holding location display displays the current
status of operation information representative of the current
status of operation of the holding location in the touch sensitive
area of the holding location display defining the button.
Appeal Br. 26 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Vaseloff et al.
(“Vaseloff”)
US 2004/0056761 A1 Mar. 25, 2004
Clark et al. (“Clark”) US 2010/0138007 A1 June 3, 2010
Celebisoy US 2012/0260217 A1 Oct. 11, 2012

REJECTIONS
Claims 25–36, 38–44, 53, and 54 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Vaseloff and Clark. Final
Act. 3–14.
Claims 45–50 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Vaseloff. Final Act. 14–20.
Claims 51 and 52 stand rejected under 35 U.S.C. § 103 as
unpatentable over the combination of Vaseloff and Celebisoy. Final Act. 20–
21.
OPINION
Claims 25, 26, 28–33, 35, 36, 38–40, 43, and 54
Appellant argues claims 25, 26, 28–33, 35, 36, 38–40, 43, and 54 as a
group. Appeal Br. 6. We select claim 25 as representative of the group, with
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claims 26, 28–33, 35, 36, 38–40, 43, and 542 standing or falling with claim
25. 37 C.F.R. § 41.37(c)(1)(iv).
On this record, we see no error in the Examiner’s combination of and
reliance on the cited references for collectively teaching or suggesting the
elements recited in claim 25. We adopt as our own the findings set forth by
the Examiner in the Final Rejection and Answer with regard to claims 25,
26, 28–33, 35, 36, 38–40, 43, and 54. See Final Act. 3–14; Ans. 4–10.
The Examiner found that Vaseloff teaches all of the recited limitations
of claim 25 except “wherein the holding location display displays the current
status of operation information representative of the current status of
operation of the holding location in the touch sensitive area of the holding
location display defining the button,” for which the Examiner relied on
Clark. Final Act. 3–14.
Appellant argues that the combination of Vaseloff and Clark is
improper and involves impermissible hindsight because the Examiner “fails
to provide a proper reason why one having ordinary skill in the art would
have combined Vaseloff and Clark.” Appeal Br. 10. Appellant argues that
the Examiner’s reasoning is circular, “saying it would be obvious to
incorporate status information in a button in order to show the status
information in the button.” Id. Appellant further argues that the Examiner’s
explanation—that modifying the food holding device of Vaseloff in view of
Clark is a simple substitution of one known element for another to obtain
predictable results and the use of known techniques to improve similar

2 We address Appellant’s arguments for dependent claims 27, 29, 34, 41,
and 42 separately below. See Appeal Br. 16–18. We reverse the Examiner’s
rejection of claim 53, which depends from independent claim 45, discussed
below.
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devices in the same way—involves “no more than overly broad general
statements that fail to support a conclusion of obviousness because they fail
to provide a reason why one skilled in the art would have specifically
modified Vaseloff in the way proposed by the Examiner.” Id. at 12.
We are not persuaded that the Examiner erred in combining the cited
teachings of Vaseloff and Clark. The Examiner set forth articulated
reasoning with rational underpinnings for the combination. Final Act. 6;
Ans. 7–8. When considering obviousness of a combination of known
elements, the question is “whether the improvement is more than the
predictable use of prior-art elements according to their established
functions.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). In this
case, Appellant does not persuade us that the Examiner’s proposed
combination of Vaseloff’s user interface with Clark’s teaching that it is
known to place operational information inside a button provides anything
other than the predictable, expected result. Moreover, Appellant’s hindsight
argument fails because Appellant has not identified any knowledge relied
upon by the Examiner that was gleaned only from Appellant’s disclosure
and that was not otherwise within the level of ordinary skill in the art at the
time of invention. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA
1971). Appellant also has not provided objective evidence of secondary
considerations, which “operates as a beneficial check on hindsight.” Cheese
Sys., Inc. v. Tetra Pak Cheese and Powder Sys., Inc., 725 F.3d 1341, 1352
(Fed. Cir. 2013).
For these reasons, we are not persuaded that the Examiner erred in
combining the cited teachings of Vaseloff and Clark.
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Next, Appellant argues that the Examiner erred in finding that the
combination of Vaseloff and Clark teaches the “current status of operation
information” limitation, as recited in claim 25. See Appeal Br. 12–16.
Appellant contends the “current status of operation information” limitation is
limited to information “relating to the physical condition or state the holding
location is presently or currently in.” Id. at 15. Appellant argues that the
buttons depicted in Figure 8B of Clark, cited by the Examiner, do not show
current status of operation information but rather “information about what
scene control settings are being programmed by a user for later use when the
user presses another button” to trigger the scene. Id. at 14.
Appellant’s arguments are not persuasive of Examiner error because
they attack Clark individually, even though the Examiner relied on the
combination of Vaseloff and Clark in rejecting claim 25. In re Mouttet, 686
F.3d 1322, 1333 (Fed. Cir. 2012) (“[T]he test for obviousness is what the
combined teachings of the references would have suggested to those having
ordinary skill in the art.” (citing In re Keller, 642 F.2d 413, 425 (CCPA
1981))). The Examiner found that Vaseloff teaches displaying “current
status of operation information” similar to what is described in Appellant’s
Specification, e.g., holding times for food in compartment, food has expired,
timing in progress, food compartment not operating, etc. Ans. 8 (citing
Vaseloff ¶¶ 21, 24, 34, Table 1). The Examiner further found that Clark
teaches displaying information in the touch sensitive area of a display
defining a button. See Final Act. 6 (citing Clark, Fig. 7A, 8B, ¶¶ 44, 48);
Ans. 5–9. Thus, Appellant has not persuasively rebutted the Examiner’s
finding that Clark in combination with Vaseloff at least suggests “wherein
the holding location display displays the current status of operation
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information representative of the current status of operation of the holding
location in the touch sensitive area of the holding location display defining
the button,” as recited in claim 25. Because Appellant has not addressed
what the combined teachings of Vaseloff and Clark would have suggested to
an artisan of ordinary skill, Appellant’s arguments are not commensurate in
scope with the Examiner’s rejection.
We also note that Appellant attempts to distinguish the recited system
from the prior art based on the information content displayed in the touch
sensitive area of the holding location display defining the button. See Appeal
Br. 12–14. On this claim construction issue, we are bound by the Board’s
precedential decision in Ex parte Nehls, 88 USPQ2d 1883, 1889 (BPAI
2008) (precedential) (“[T]he nature of the information being manipulated
does not lend patentability to an otherwise unpatentable computer-
implemented product or process.”). In Nehls (88 USPQ2d at 1888), the
Board held that the nature of the information being manipulated by a
computer should not be given patentable weight absent evidence that such
information is functionally related to the process “by changing the efficiency
or accuracy or any other characteristic” of the steps. See Ex parte Curry, 84
USPQ2d 1272, 1274 (BPAI 2005) (informative) aff’d, No. 2006-1003 (Fed.
Cir. June 12, 2006) (Rule 36) (holding “wellness-related” data stored in a
database and communicated over a network was non-functional descriptive
material as claimed because the data “does not functionally change” the
system).
In claim 25, the particular content of the information displayed in the
touch sensitive area of the holding location display defining the button does
not affect any step or alter the structure of the claimed food management
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system. Therefore, the content of the displayed information is nonfunctional
descriptive material that does not distinguish the claim from the prior art in
terms of patentability. See In re Ngai, 367 F.3d 1336, 1339 (Fed. Cir. 2004).
See also Ex parte Mathias, 84 USPQ2d 1276, 1279 (BPAI 2005)
(informative), aff’d, 191 F. App’x 959 (Fed. Cir. 2006) (“[N]onfunctional
descriptive material cannot lend patentability to an invention that would
have otherwise been taught by the prior art.”); Curry, 84 USPQ2d at 1274
(“Nonfunctional descriptive material cannot render nonobvious an invention
that would have otherwise been obvious.”). As explained in In re Lowry, we
need not give patentable weight to descriptive material absent a new and
unobvious functional relationship between the descriptive material and the
substrate. See In re Lowry, 32 F.3d 1579, 1582-83 (Fed. Cir. 1994)
(discussing In re Gulack, 703 F.2d 1381, 1385 (Fed. Cir. 1983)); see also
King Pharm., Inc. v. Eon Labs, Inc., 616 F.3d 1267, 1279 (Fed. Cir. 2010)
(“[T]he relevant question is whether ‘there exists any new and unobvious
functional relationship between the printed matter and the substrate.”’)
(citations omitted).
Equivalently, material is printed matter if it is “claimed for what it
communicates.” In re Distefano, 808 F.3d 845, 850 (Fed. Cir. 2015). The
disputed limitation of claim 25 (the current status of operation information)
merely characterizes the specific content of the information displayed on the
button. Thus, the disputed claim limitation is directed to printed matter. See
id. at 848 (A claim limitation is directed to printed matter “if it claims the
content of information.”).
If a claim in a patent application recites printed matter, “one must then
determine if the matter is functionally or structurally related to the associated
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physical substrate, and only if the answer is ‘no’ is the printed matter owed
no patentable weight.” Distefano, 808 F.3d at 851. In the instant claim, the
particular content of the displayed information is not specifically related to
the structure of the displayed information, or explicitly used in the claim,
such as by the food management system, to perform any specific function.
Rather, the content of the information is not functionally distinct from any
other information that is displayed.
Accordingly, we find the disputed claim limitation constitutes
nonfunctional descriptive material and printed matter not functionally
related to the associated substrate, and is not entitled to patentable weight.
Appellant’s arguments are not, therefore, commensurate in scope with claim
25.
For these reasons, we are not persuaded that the Examiner erred in
finding that the combination of Vaseloff and Clark teaches or suggests the
disputed limitation of claim 25.
Accordingly, we sustain the Examiner’s obviousness rejection of
independent claim 25 and grouped claims 26, 28–33, 35, 36, 38–40, 43, and
54.
Claim 27
Claim 27 depends from claim 25 and further recites “wherein the first
operation executed by the first engagement is the food management
controller recording in the non-transitory tangible storage medium an
amount of food as being held at the respective holding location.” Appeal Br.
27 (Claims App.).
In addition to the arguments made for independent claim 25,
discussed above, Appellant argues that the Examiner erred in rejecting
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dependent claim 27 because the cited paragraphs of Vaseloff do not teach or
suggest “recording an amount of food as being held at the respective holding
location.” Appeal Br. 16.
We are not persuaded that the Examiner erred. Appellant’s argument
is conclusory, merely reciting the claim limitation, the teachings of Vaseloff,
and stating that the two are not the same. Id. Rule 41.37 “require[s] 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.” In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011).
The Examiner found that Vaseloff teaches that when the user activates
the timer, it indicates to the system that some amount of food has been
moved to a previously empty compartment, i.e., the system designates a food
compartment as having received some amount of food, and that such a
designation would be stored in memory. Ans. 11 (citing Vaseloff ¶¶ 24, 26,
35, Table 1). The Examiner concluded that claim 27 does not require that the
claimed “amount” be quantified or measured. Id.
Appellant has not persuasively rebutted the Examiner’s findings or
persuaded us that the Examiner’s interpretation of the term “amount” is
overly broad, unreasonable, or inconsistent with the Specification.
Accordingly, on the record before us, we sustain the Examiner’s
obviousness rejection of dependent claim 27.
Claim 29
Claim 29 depends from claims 25 and 28 and further recites “wherein
the second operation executed by the first engagement is the food
management processor transferring association of an amount of food held at
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the holding location to a different holding location.” Appeal Br. 27 (Claims
App.).
In addition to the arguments made for claims 25 and 27, discussed
above, Appellant argues that “Vaseloff does not teach that the timer button
64 (the button that is associated with each display 60) is used to transfer an
amount of food between holding locations,” but instead “discloses that a
button 90 or 82, which is separate from the timer button 64, is used to
transfer active timers between displays 60.” Id. at 16 (citing Vaseloff ¶ 35).
We are not persuaded that the Examiner erred because Appellant’s
argument is not commensurate with the scope of claim 29, which requires
“the food management processor transferring association of an amount of
food held at the holding location to a different holding location.” Appeal Br.
27 (Claims App.) (emphasis added). Claim 29 does not require “transfer [of]
an amount of food between holding locations,” as Appellant contends. See
Ans. 12; Appeal Br. 16.
Moreover, Appellant has not persuasively rebutted the Examiner’s
findings that Vaseloff teaches that a user can transfer food from one
compartment to another, and the interface of the Vaseloff system indicates
compartments that have some amount of food suitable for transfer. Ans. 12
(citing Vaseloff ¶ 35). Nor has Appellant persuasively rebutted the
Examiner’s finding that Vaseloff teaches that the user can designate an
origin for the transfer by deactivating a corresponding timer for the selected
origin compartment e.g., by pressing the timer button. Id. (citing Vaseloff
¶ 24). The Examiner concluded that the claim term “association”
encompasses anything associated with some amount of food and, in the
context of Vaseloff, the timing information is associated with some amount
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of food in the origin compartment to be transferred to a destination
compartment, so that the timing can continue at the new destination. Id.
For these reasons, we sustain the Examiner’s obviousness rejection of
dependent claim 29.
Claim 34
Claim 34 depends from claims 25 and 33 and further recites “wherein
the third displayed current status of operation represents an expired hold
time associated with the respective holding location.” Appeal Br. 28 (Claims
App.). Parent claim 33 recites “executing a third operation in response to the
first type of user engagement with the button when a third current status of
operation is displayed on the holding location display.” Id. at 27. Parent
claim 25 recites “execute a first operation when a first current status of
operation is displayed ... and the button is actuated by the first type of user
engagement, and to execute a second operation different than the first
operation when a second current status of operation is displayed.” Id. at 26.
Appellant argues that the Examiner erred in finding that timer button
64 in Vaseloff “has a different, third function.” Appeal Br. 17. Appellant
argues that Vaseloff teaches that timer button 64 can either activate or
deactivate the timer, but there is no teaching that the function of the timer
button 64 changes when the timer status indicator 62 is flashing red, as claim
34 requires. Id.
We are not persuaded that the Examiner erred. The plain language of
claim 34 does not require that a timer status indicator “is flashing red,” as
Appellant asserts. Thus Appellant’s argument is not commensurate with the
scope of claim 34.
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Moreover, the Examiner concluded that the plain language of the
claims does not require doing more than activating or deactivating a timer.
Ans. 13. The Examiner interpreted a “third operation,” as recited in claim
33, as broad enough to include a distinct operation that is similar in function
or type to other operations, but is different in terms of the time or context in
which it occurs. Id. Appellant has not persuasively argued that the
Examiner’s interpretation of “third operation” is overly broad, unreasonable,
or inconsistent with Appellant’s Specification. See Reply Br. 7.
Additionally, the Examiner found that Vaseloff teaches pressing a
timer button to activate an inactive timer for a compartment, as well as
pressing a timer button to deactivate an active timer. Ans. 13 (citing
Vaseloff, Figs. 3–6, ¶¶ 24, 26, 35, Table 1). The Examiner also found,
however, that Vaseloff teaches an embodiment in which a user wishes to
transfer food from one compartment to another, in which the system displays
a mode in which the compartments with active timers are highlighted. Id. at
14 (citing Vaseloff ¶ 35) The Examiner found that Vaseloff teaches that
pressing the timer button in the context of the transfer mode not only
deactivates the timer for the compartment, but also prepares for the transfer
of the remaining time in the deactivated timer to another compartment, so
that the timer can restart from where it left off at the new location. Id. (citing
Vaseloff ¶ 26). Thus, the Examiner found that Vaseloff teaches a “third
operation,” which takes place in the context of a third, displayed “status of
operation.” Id. Appellant has not persuasively rebutted the Examiner’s
findings. See Reply Br. 7.
For these reasons, we sustain the Examiner’s obviousness rejection of
dependent claim 34.
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Claim 41
Claim 41 depends from claim 25. Appellant presents the same
argument with regard to claim 41 that Appellant made for dependent claim
27—that Vaseloff does not teach or suggest indicating an amount of food
held in each holding compartment. Appeal Br. 17–18.
For the reasons set forth above in the context of claim 27, we are not
persuaded that the Examiner erred in finding that the combination of
Vaseloff and Clark teaches or suggests the disputed “amount” limitation.
Accordingly, we sustain the Examiner’s obviousness rejection of
dependent claim 41.
Claim 42
Claim 42 depends from claim 25 and further recites “wherein the
holding location display displays only current status of operation
information representative of the current status of operation of the holding
location in the touch sensitive area of the holding location display defining
the button.” Appeal Br. 29 (Claims App.).
Appellant argues that claim 42 is not of the same scope as claim 25,
and the Examiner has not shown where the prior art teaches only current
status of operation information is displayed in the touch sensitive area
defining the button. Appeal Br. 18. Appellant again presents the same
argument that Appellant made for claim 25—that the buttons in Fig. 8B of
Clark do not show “current status of operation information.” See Appeal Br.
13, 16–17.
For the reasons discussed above in the context of claim 25, we are not
persuaded that the Examiner erred. Moreover, the Examiner found that Clark
teaches a button for controlling a wall light that displays only “current status
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of operation information,” as claim 42 requires. Ans. 15–16 (citing Clark
Fig. 8B, ¶ 48). Appellant has not persuasively rebutted the Examiner’s
findings. See Reply Br. 7.
For these reasons, we sustain the Examiner’s obviousness rejection of
dependent claim 42.
Claim 44
Appellant presents the same arguments with regard to independent
claim 44 that Appellant made for independent claim 25. Appeal Br. 18.
For the reasons set forth above in the context of claim 25, we are not
persuaded that the Examiner erred in finding that the combination of
Vaseloff and Clark teaches or suggests the disputed limitations of claim 25,
or that the Examiner erred in combining the cited teachings of Vaseloff and
Clark.
Accordingly, we sustain the Examiner’s obviousness rejection of
claim 44.
Claims 45–53
Appellant argues that the Examiner erred in rejecting independent
claim 45 as obvious over Vaseloff. Appeal Br. 22. In particular, Appellant
argues that Vaseloff does not teach or suggest a “second type of user
engagement,” as recited in claim 45. Id. Appellant argues that the Examiner
took the unreasonable position that pressing the timer button of Vaseloff at
different times is equivalent to the claimed different types of user
engagement. Id. (citing Final Act. 18, 25).
Appellant has persuaded us that the Examiner erred. The Examiner’s
interpretation that the term “type of user engagement” refers to any manner
in which the button is engaged e.g., at a different time, under a different
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condition/mode, etc. (Ans. 19) is not consistent with Appellant’s claims and
Specification. We agree with Appellant that the claims and Specification
describe that the limitation “type of user engagement” refers to the manner
or way in which the user actuates a button, not the time at which the button
is actuated. See id. For example, claims 49, 51 and 52, which depend from
claim 45, describe that the first type of user engagement can be either a
sustained press or a tap and that the second type of user engagement can be a
sustained press. Id. at 22–23. Moreover, the Specification describes different
types of user engagement, such as quickly tapping, long holding, sustained
pressing and dragging, multiple taps, multiple sustained presses, and/or
swipes. Id. (citing Spec. ¶¶ 25, 35). The Specification further describes that
the buttons of the holding location displays “may be actuated by different
types of user engagement with the buttons, such as . . . by briefly tapping the
button to bring up a prompt window . . . or by making a sustained press of
the button to execute certain functions with or without bringing up a prompt
window.” Id. (citing Spec. ¶ 36).
On the record before us, the Examiner’s finding that Vaseloff teaches
execut[ing] an operation different than the first operation when
the first current status of operation is displayed on the holding
location display and the button is actuated by the second type of
user engagement, whether the first operation or said operation is
different than the first operation is executed when the first
current status of operation is displayed being based on the
corresponding first or second type of user engagement used to
actuate the button
is in error. See Ans. 20.
Accordingly, on this record, we reverse the Examiner’s obviousness
rejection of independent claim 45, as well as dependent claims 46–53, which
depend thereon.
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CONCLUSION
We affirm the Examiner’s § 103(a) rejections of claims 25–36, 38–44,
and 54.
We reverse the Examiner’s § 103(a) rejections of claims 45–53.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
25–36,
38–44,
53, 54
103(a) Vaseloff, Clark 25–36,
38–44, 54
53
45–50 103(a) Vaseloff 45–50
51, 52 103(a) Vaseloff, Celebisoy 51, 52
Overall
Outcome
25–36,
38–44, 54
45–53
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED IN PART