Ex Parte Ellwanger et alDownload PDFPatent Trial and Appeal BoardMar 30, 201612463782 (P.T.A.B. Mar. 30, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/463,782 05/11/2009 29450 7590 BARLEY SNYDER 101 Lindenwood Drive Suite 100 Malvern, PA 19355 04/01/2016 FIRST NAMED INVENTOR Simon Ellwanger 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. 46889-907 1260 EXAMINER GRANT, ROBERT J ART UNIT PAPER NUMBER 2859 NOTIFICATION DATE DELIVERY MODE 04/01/2016 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): berwynipdocket@barley.com hsalamone@barley.com sanastasi@barley.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SIMON ELLWANGER, GARY FITZERGERALD, and JEFF ZABEL Appeal 2014-004115 Application 12/463,782 Technology Center 2800 Before ROMULO H. DELMENDO, KAREN M. HASTINGS, and WESLEY B. DERRICK, Administrative Patent Judges. DELMENDO, Administrative Patent Judge. DECISION ON APPEAL The Appellants 1 seek our review under 35 U.S.C. § 134(a) of a decision of the Primary Examiner to reject claims 1, 2, 4-7, 10, 12-18, 21, 22, and 32-34. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM for the reasons given by the Examiner, adding the following for emphasis. 1 The Appellants state that "Bayerische Motoren W erke Aktiengesellschaft" is the Real Party in Interest (Appeal Brief filed September 25, 2013, hereinafter "Appeal Br.," 4). Appeal2014-004115 Application 12/463,782 BACKGROUND The subject matter on appeal relates to a timing apparatus and to a method of optimizing an electrical charging procedure of a vehicle by using a timing apparatus to denote the expected time away from a vehicle (Specification, hereinafter "Spec.," iii! OOOland 0014). Details of the appealed subject matter are recited in illustrative independent claims 1, 16, 32, and 33, which are reproduced from pages 34-39 of the Appeal Brief (Claims App.) as follows: 1. A timing apparatus for a vehicle, comprising: a menu located in the vehicle and displaying a plurality of selectable time parameters, a single selected time parameter being an expected time before the vehicle is restarted; a control knob located in the vehicle and adjustable to select one of the time parameters from a plurality of knob positions, each knob position representing the plurality of selectable time parameters; and a knob position sensor connected to the control knob and a microprocessor located in the vehicle. 16. A method to optimize an electrical charging procedure of a vehicle, comprising the steps of: determining an amount of vehicle idle time; selecting the amount of time from a menu located in the vehicle, the menu having a set of numbers corresponding to user selectable time parameters; positioning a control knob located in the vehicle proximate to the operator in a position to operate the vehicle, the control knob having a marker to a selected time parameter reflecting an amount of time until an operator will restart the vehicle; and inputting the selected time parameter into a battery charging algorithm. 32. A method to optimize an electrical charge algorithm, comprising the steps of: 2 Appeal2014-004115 Application 12/463,782 providing to a charging module in a vehicle a quantified amount of energy over time required to charge a vehicle battery (KW/Hr); providing to the charging module a maximal energy of a connection to the vehicle (KW); providing to the charging module an energy price over time for charging the vehicle; providing to the charging module an amount of time until the vehicle will be turned on by selecting a time parameter using a user controlled timing apparatus located in the vehicle; calculating an optimal charging rate including optimization of voltage, current and time through the charging module. 3 3. A timing apparatus for by [sic] an operator in a vehicle, comprising: a menu located in the vehicle and displaying user selectable time parameters, a single selected time parameter being an expected time the vehicle is turned-off; a control knob positioned proximate to the operator positioned to operate the vehicle and adjustable to select an operator selected time parameters from a plurality of knob positions, each knob position representing a selectable time parameters reflecting an approximate time when the operator is expected to restart the vehicle; and a knob position sensor connected to the control knob and a microprocessor located in the vehicle. THE REJECTIONS The Examiner rejected the claims as follows: I. Claim 32 under 35 U.S.C. § 103(a) as being unpatentable 3 Appeal2014-004115 Application 12/463,782 T"""'I • ., ' ., /l'.l'.T"""'I • ., .... .,,_,., ., r"I. 1. over !'mcnam et al. ~--!'mcnam--r ana :sims;~ II. Claim 32 under 35 U.S.C. § 103(a) as being unpatentable over Fincham and Pryor;4 III. Claims 1, 2, 4, 5, 10, 12-17, 21, 22, 33, and 34 under 35 U.S.C. § 103(a) as being unpatentable over Fincham, Yeh et al. ("Y eh")5 and Sims; and IV. Claims 6, 7 and 18 under 35 U.S.C. § 103(a) as being unpatentable over Fincham, Yeh, Sims and Levin et al. ("Levin"). 6 (Examiner's Answer, entered November 7, 2013, hereafter "Ans.," 3; Final Office Action entered November 30, 2012, hereinafter "Final Act.," 5-9. 7) DISCUSSION I Initially, the Appellants contend that the subject matter relied upon by the Examiner is not prior art as it is not supported by Fincham' s Provisional Patent Application ("Fincham Provisional Patent Application") (Appeal Br. 13). The Appellants contend that "[i]n order to properly cite Fincham as 2 US 2010/0017249 Al, published January 21, 2010 (based on Application 12/502,041 filed July 13, 2009, claiming priority to Provisional Application 61/134,646 filed July 11, 2008). 3 US 5,467,006, issued November 14, 1995. 4 US 2008/0007202 Al, published January 10, 2008. 5 US 2008/0143686 Al, published June 19, 2008. 6 US 6,154,201, issued November 28, 2000. 7 In the Final Action, the heading for Rejection III misidentified claims 11 and 23, which are withdrawn from consideration, as rejected and inadvertently omitted claim 22 (Final Act. 7). 4 Appeal2014-004115 Application 12/463,782 prior art, the Examiner must rely on Fincham's claim of priority to a Provisional Patent Application" and the Appellants maintain that the subject matter relied upon is not disclosed in the Fincham Provisional Patent Application "in compliance with 35 U.S.C. § 112, 1st paragraph" (id. at 13- 14). Thus, the Appellants contend that the Examiner's reliance on Fincham is in error because the subject matter relied upon by the Examiner is not properly citable as prior art (id. at 14-15). In support, the Appellants contend that the Fincham Provisional Patent Application does not include a "discussion of entering variable data into the vehicle at the spot moment when the operator determines how long that operator will be away from the vehicle and expects to tum the car back on, which is being performed in the vehicle." (Id. at 16). Based on the belief that the provisional application lacks this description, the Appellants contend that the Fincham should not be afforded the filing date of the Fincham Provisional Patent Application with respect to "providing to the charging module an amount of time until the vehicle will be turned on by selecting a time parameter using a user controlled timing apparatus located in the vehicle" as required by the claim (id. at 15). As found by the Examiner (Final Act. at 5), Fincham discloses providing to the charging module an amount of time until the vehicle will be turned on by selecting a time parameter using a user controlled timing apparatus located in the vehicle (Fig. 7, item 722). We note that the Appellants do not appear to argue Fincham does not disclose this feature, but merely that this feature should not be afforded the Fincham Provisional Patent Application's earlier filing date. Therefore, the critical question remains whether this disclosure of Fincham should be afforded the filing 5 Appeal2014-004115 Application 12/463,782 date of the earlier filed provisional application. For the reasons set forth in more detail below, we find that it does. As Appellants contend (Appeal Br. 15), in order for a nonprovisional application to be entitled to the filing date of an earlier filed provisional application under 35 U.S.C. § l 19(e), the written description of the provisional application must adequately support and enable the subject matter disclosed in the nonprovisional application that claims the benefit of the provisional application. See New Railhead Mfg., L.L. C. v. Vermeer Mfg. Co., 298 F.3d 1290, 1294 (Fed. Cir. 2002) (holding that for a nonprovisional application to be afforded the priority date of the provisional application, "the specification of the provisional must 'contain a written description of the invention and the manner and process of making and using it, in such full, clear, concise, and exact terms,' 35 U.S.C. § 112 iJ 1, to enable an ordinarily skilled artisan to practice the invention claimed in the non- provisional application"). Thus, in order for a nonprovisional application to be entitled to the benefit of the filing date of the provisional application, the disclosure of the provisional application must adequately provide ( 1) a written description of the subject matter at issue in the later filed nonprovisional application and (2) an enabling disclosure to permit one of ordinary skill in the art to make and use the subject matter without undue experimentation. We have fully reviewed the Appellants' proffered analysis of the Fincham Provisional Patent Application; however, we agree with the Examiner's well-reasoned analysis (Ans. at 3-5 and Final Act. at 3--4), which we adopt as our own, that the subject matter relied upon by the Examiner was disclosed in the Fincham Provisional Patent Application in 6 Appeal2014-004115 Application 12/463,782 compliance with 35 U.S.C. § 112, 1st paragraph and thus the subject matter relied upon by the Examiner is available as prior art. As found by the Examiner (Final Act. 3), the Fincham Provisional Patent Application discloses sending information from the automobile to the charging module, including "information regarding parameters defining how the automobile is to be charged ... [and that] such information might specify a time by which the car is to be a certain percent charged" (Fincham Provisional Application 2). The Fincham Provisional Patent Application further discloses "the information may be ... entered into the automobile such as via a dashboard based interface" (id. at 3). Finally, as found by the Examiner (Final Act. 3), the Fincham Provisional Patent Application explicitly discloses "[t]he driver knows that his car will sit in the space all work day, hence the chosen charging duration of eight hours" (p. 3). We note Fincham non-provisional application includes verbatim the above disclosures c,-i,-i 0097-0099). Taking these disclosures, we agree with the Examiner (Final Act. 4), and hold that the disclosed dashboard interface for entering charging parameters in combination with the explicit disclosure of choosing the charging duration supports and enables the subject matter as disclosed in Fincham and relied on by the Examiner. In view of this determination, we hold that the Fincham Provisional Patent Application adequately supports and enables the subject matter disclosed in the nonprovisional application, and thus we hold that Fincham is afforded the filing date of the provisional patent application with respect to those features so disclosed. Since we have held that Fincham is afforded the filing date of the earlier filed provision application, we now consider the merits of the 7 Appeal2014-004115 Application 12/463,782 rejection under 35 U.S.C. § 103(a). The Examiner found that Fincham describes, or would have suggested to one of ordinary skill in the art, optimizing an electrical charge algorithm including every limitation of claim 32, including describing a charging module, except for "the charging module being located in a vehicle" in the manner as recited by the claim (Final Act. 5). The Examiner further found that Sims discloses a charging module "located in the vehicle to optimize an electrical charge of a battery in a vehicle" and concluded that "[i]t would have been obvious to one of ordinary skill in the art at the time of the invention was made to modify the method of Fincham to have the charging module in the vehicle, according to the teachings of Sims, to provide the user with the capability of increasing the efficiency of the charging schedule of the battery ... , and since rearranging parts of an invention involves only routine skill in the art" (id.). In response to the obviousness rejection, the Appellants contend the Examiner has failed to establish a prima facie case of obviousness because the "Examiner never articulates how the Fincham's external power delivery management for multiple vehicles, and Sims' internal, automatic charging module could be combined to yield a user controlled timing apparatus as a predictable result, be obvious to try with a reasonable expectation of success, or that there is some teaching, suggestion, or motivation to combine them to arrive at the claimed invention" (Appeal Br. 19). Additionally, the Appellants contend Sims discloses a "charging module that automatically optimizes a vehicle's charging method when it detects an external power source" and thus teaches away from "a user controlled timing apparatus" (id. at 18). Therefore, the Appellants argue "[t]here is no basis in the art for modifying Fincham with Sims to arrive at the claimed invention, nor has the 8 Appeal2014-004115 Application 12/463,782 Examiner articulated a rational reason to support the legal conclusion of obviousness by combination thereof' (id. at 21 ). We have considered fully the Appellants' analysis of the Fincham and Sims disclosures; however, we find that the Appellants' argument based on that analysis fails to reveal any reversible error in the Examiner's factual findings, analysis, and conclusions of obviousness. The test of obviousness is not whether an express suggestion of the claimed invention is present in any or all references but rather what the references taken collectively would have suggested to those of ordinary skill in the art presumed to be familiar with them. In re Rosselet, 347 F.2d 847, 851(CCPA1965); In re Hedges, 783 F.2d 1038, 1041 (Fed. Cir. 1986). Additionally, a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art. Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) ("the mere absence from the prior art of a teaching or a limitation recited in the patent at issue is insufficient for a conclusion of no no bviousness"). In response to the Appellants' arguments, we find the Examiner has made extensive factual findings with respect to Fincham and Sims (Final Act. 5), which we adopt as our own, and the Appellants have proffered insufficient articulated arguments to the contrary to reveal reversible error in the conclusion of obviousness. The relevant inquiry is whether the claimed subject matter would have been obvious to those ordinary skill in the art in light of the combined teachings of those references. See In re Keller, 642 F.2d 413, 425 (CCPA 1981). Additionally, the Examiner has found the limitations are disclosed or suggested in the prior art references, and the Appellants' mere assertions to the contrary are insufficient to identify a 9 Appeal2014-004115 Application 12/463,782 reversible error. See Ex parte Belinne, No 2009-004693, 2009 WL 2477843 (BP AI 2009) (informative) ("[W]e find that the Examiner has made extensive specific fact finding ... with respect to each of the argued claims. Appellants' argument ... repeatedly restates elements of the claim language and simply argues that the elements are missing from the reference. However, Appellants do not present any arguments to explain why the Examiner's explicit fact finding is in error"). See also 37 C.F.R. § 41.3 7 ( c )( 1 )(vii) (nothing that an argument that merely points out what a claim recites is unpersuasive). Fincham has been discussed supra. Additionally, as found by the Examiner (Final Act. 5), Fincham discloses a charging module, external to the vehicle, for optimizing the charging of a vehicle battery c,-i,-i 0051-0055). Also, as found by the Examiner (Final Act. 5), Sims discloses an energy transfer device onboard an electric vehicle, i.e. charging module located in the vehicle, and discloses a charging algorithm to optimize an electrical charge of an individual battery in the vehicle (Sims col. 2, 11. 50-66). Taking these teachings collectively, we hold that it is reasonable to conclude that it would have been obvious to a person of ordinary skill in the art to modify Fincham's external charging module by providing a charging module in the vehicle to increase efficiency by specifically tailoring the charging module with the individual battery being charged. The mere fact that Fincham discloses an external charging module does not foreclose the obviousness of a charging module in a vehicle as such is a known method for charging a battery as established by Sims. See KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 416--417 (2007) ("The combination of familiar elements according to known method is likely to be obvious when it does no more 10 Appeal2014-004115 Application 12/463,782 than yield predictable results"). We also find that the Appellants do not direct us to any factual evidence to rebut this reasonable conclusion and thus find the factual evidence of record supports the conclusion of obviousness. Additionally, Sims discloses the controller "may be overridden ... and receive user desired settings such as the time or length of the next anticipated use through user controller" (Sims col. 3, 11. 4-8). In view of this disclosure, we reject the Appellants' argument that Sims teaches away from using "a user controlled timing apparatus." Additionally, we reject this position because, as we found supra, Fincham discloses a user controlled timing apparatus. One cannot show nonobviousness by attacking references individually when the rejection is based on a combination of reference. See Keller, 642 F.2d at 425. II In arguing for the reversal of Rejection II, the Appellants again present arguments with respect to the Fincham Prov1s10nal Patent Application. We reject this line of arguments for the same reasons as set forth above and hold, as we did supra, that the Fincham Provisional Patent Application adequately supports and enables the subject matter disclosed in the nonprovisional application and thus we find Fincham is properly afforded the filing date of the provisional patent application with respect to those features so disclosed. Turning to the obviousness rejection, again the Examiner finds Fincham describes, or would have suggested to one of ordinary skill in the art, optimizing an electrical charge algorithm including every limitation of claim 32, including describing a charging module, except for "the charging module being located in a vehicle" in the manner as recited by the claim 11 Appeal2014-004115 Application 12/463,782 (Final Act. 6). The Examiner further found that Pryor discloses a charging module "located in vehicle [] for optimizing grid charging of a battery [] in the vehicle [] and receiving inputs to perform this method" and concluded that "[i]t would have been obvious to one of ordinary skill in the art at the time of the invention was made to modify the method of Fincham, according to the teachings of Pryor, to provide the user with the capability of determining an optimal time period during which the battery should be charged and effectuating charging during the determined time period ... and since rearranging parts of an invention involves only routine skill in the art" (id.). In response to the obviousness rejection, in addition to similar arguments as set forth previously which we reject here for substantially the same reasons as set forth above, the Appellants contend "Pryor does not disclose a user controlled timing apparatus located in a vehicle" (Appeal Br. 25). We find this argument unpersuasive because, as we have articulated in detail supra, this feature is disclosed by Fincham. One cannot show nonobviousness by attacking references individually when the rejection is based on a combination of reference. See Keller, 642 F.2d at 425. The Appellants contend the Examiner has failed to establish a prima facie case of obviousness because the "Examiner has not articulated how the combination of Fincham's external power delivery management for multiple vehicles, and Pryor's predetermined charge initiation time would yield a user controlled timing apparatus as a predictable result, be obvious to try with a reasonable expectation of success, or that the references contain some teaching, suggestion, or motivation to modify or combine them to arrive at the claimed invention" (Appeal Br. 25). We are unpersuaded by these 12 Appeal2014-004115 Application 12/463,782 arguments because the Examiner did in fact articulate a sufficient reason with some rational underpinning to support the obviousness conclusion. We have considered fully the Appellants' analysis of Fincham and Pryor; however, we find that Appellants' analysis fails to reveal any reversible error in the Examiner's factual findings, analysis, and conclusions of obviousness. The test of obviousness is not whether an express suggestion of the claimed invention is present in any or all references but rather what the references taken collectively would have suggested to those of ordinary skill in the art presumed to be familiar with them. Rosselet, 347 F.2d at 851; Hedges, 783 F.2d at 1041. Again, we find the Examiner has made extensive factual findings with respect to Fincham and Pryor (Final Act. 6), which we adopt as our own, and the Appellants have proffered insufficient articulated arguments to the contrary to reveal reversible error in the Examiner's findings, analysis, and conclusion of obviousness. In this case, the Examiner has found the limitations are disclosed or suggested in the prior art reference, and the Appellants' mere assertions to the contrary are insufficient to identify a reversible error. III In arguing for the reversal of Rejection III, the Appellants argue claims 1, 2, 4, 5, 10-17, 21, 22, 33, and 34 together, focusing on independent claims 1 and 33 together and provide additional arguments for independent claims 16 (Appeal Br. 26-32). Therefore, we confined our discussion to claim 1, which we select as representative pursuant 37 C.F.R. § 41.37(c)(l)(iv) and thereafter address claims 16, 17, 21 and 22 to the extent that they have been argued separately in accordance with the rule. 13 Appeal2014-004115 Application 12/463,782 The Examiner found that Fincham describes, or would have suggested to one of ordinary skill in the art, a timing apparatus including every limitation of claim 1, except for Fincham "does not explicitly teach the use of a control knob" and does not disclose "a microprocessor being located in a vehicle" in a manner as recited by the claim (Final Act. 7-8). With respect to the control knob, the Examiner further found that Fincham discloses means for adjusting the time parameter by using an input device that "can comprise any number of devices, including point of sale terminals, variable function input devices, button, keys, etc." and the Examiner found that Yeh discloses "a means for inputting a time for charging comprising a control knob adjustable to select one of the time parameters from a plurality of knob positions" as required by claim 1 (id. at 7). Therefore, the Examiner concluded that "[i]t would have been obvious to one of ordinary skill in the art at the time of the invention was made to modify the invention of Fincham by incorporat[ ing] the knob of Yeh into the charging apparatus of Fincham based on the suggestion of Fincham that any of a number of devices can be used for the input, and because the input devices of Fincham and the knob of Yeh are known equivalents for providing inputs in a vehicle" (Final Act. 7). With respect to the microprocessor, the Examiner argues Sims discloses a microprocessor "located in the vehicle for performing a method to optimize an electrical charge of a battery in a vehicle" and concluded that "[i]t would have been obvious to one of ordinary skill in the art at the time of the invention was made to modify the method of Fincham to have the processor in the vehicle, according to the teachings of Sims, to provide the user with the capability of increasing the efficiency of the charging schedule 14 Appeal2014-004115 Application 12/463,782 of the battery ... , and since rearranging parts of an invention involves only routine skill in the art" (id. at 8). In addition to similar arguments as set forth previously which we find unpersuasive here for substantially the same reasons as set forth above, the Appellants argue various features of the instant claims are not specifically disclosed by each of the references individually (Appeal Br. 25). In response to these arguments, we find the Examiner has made extensive factual findings with respect to Fincham, Yeh, and Sims (Final Act. 5), which we adopt as our own, and the Appellants have proffered insufficient articulated arguments to the contrary to reveal reversible error in the conclusion of obviousness. Again, the relevant inquiry is whether the claimed subject matter would have been obvious to those ordinary skill in the art in light of the combined teachings of those references. See Keller, 642 F.2d at 425. Additionally, the Examiner has found each and every limitation of the claims at issue were disclosed or suggested in the prior art references, and the Appellants mere assertions to the contrary are insufficient to identify a reversible error. See Belinne, supra. As we found above, Fincham discloses a user controlled apparatus for inputting time into the control system (Fig. 7). Additionally, as found by the Examiner (Ans. 7), Yeh discloses using a control knob to allow the user to input data into a vehicle control system (iJ 0002). Taken these teachings, we find it reasonable to conclude that it would have been obvious to use a known control knob, as taught by Yeh, to enter the control data, including the time data, as outlined by Fincham. See KSR, 550 U.S. at 416--417 (The combination of familiar elements according to known method is likely to be obvious when it does no more than yield predictable results). We also find 15 Appeal2014-004115 Application 12/463,782 that the Appellants do not direct us to any factual evidence to rebut this reasonable conclusion. In addition to the above, the Appellants argue "[t]he Fincham system relies on an external electrical charging system, including the central server" and therefore the modification to apply the principles to a single vehicle as argued by the Examiner "would frustrate the purpose of the system discussed [by Fincham]" (Appeal Br. 29). The Appellants do not direct us to any factual evidence to support the assertion that providing a charging module in the vehicle as suggested by Sims would be inoperable or would not function as intended. Fincham discloses receiving control data to a microprocessor for optimizing the charging of a vehicle battery (Fig. 3). Additionally, Sims discloses optimizing the charging of a specific battery by including an energy transfer device "located onboard an electric vehicle," where the electric transfer device includes a microprocessor (Sims Fig. 1; col. 2, 11. 65- 68). Again, for similar reasons as set forth supra, we find that it is reasonable to conclude that it would have been obvious to modify Fincham's to provide a charge control module microprocessor in the vehicle to receive the inputs from the user to increase efficiency by specifically tailoring the charging schedule with the individual battery being charged. The mere fact that Fincham discloses an external charging module does not foreclose the obviousness of a charging module in a vehicle as such is a known method for charging a battery as established by Sims. See KSR at 416--417 ("The combination of familiar elements according to known method is likely to be obvious when it does no more than yield predictable results"). 16 Appeal2014-004115 Application 12/463,782 The Appellants argue independent claim 16 separately; however present no additional arguments and, therefore, we maintain this rejection for substantially the same reasons as set forth above. IV In arguing for the reversal of Rejection IV, the Appellants present no additional arguments and, therefore, we sustain this rejection for substantially the same reasons as set forth above. SUMMARY For these reasons and those set forth in the answer, Rejections I, II, III, and IV are affirmed. Therefore, the Examiner's final decision to reject claims 1, 2, 4-7, 10, 12-18, 21, 22, and 32-34 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 ). AFFIRMED 17 Copy with citationCopy as parenthetical citation