Ex Parte Hammad et al

Patent Trial and Appeal BoardAug 22, 2018

12257987 (P.T.A.B. Aug. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/257,987 10/24/2008 Ayman Hammad 66945 7590 08/24/2018 KILPATRICK TOWNSEND & STOCKTONLLP/VISA Mailstop: IP Docketing - 22 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 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. 80083-742728(033860US) 8110 EXAMINER NGUYEN, THUY N ART UNIT PAPER NUMBER 3681 NOTIFICATION DATE DELIVERY MODE 08/24/2018 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): ipefiling@kilpatricktownsend.com KTSDocketing2@kilpatrick.foundationip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte A YMAN HAMMAD and PA TRICK FAITH Appeal2016-006615 1 Application 12/257,9872 Technology Center 3600 Before MURRIEL E. CRAWFORD, BRADLEY B. BAY AT, and AMEE A. SHAH, Administrative Patent Judges. BAY AT, Administrative Patent Judge. DECISION ON APPEAL Appellants seek our review under 35 U.S.C. Â§ 134 of the Examiner's decision rejecting claims 11, 12, 16, 18, 25-27, and 41--49, which are all the pending claims in the application. We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 Our Decision references Appellants' Appeal Brief ("App. Br.," filed Nov. 9, 2015) and Reply Brief ("Reply Br.," filed June 22, 2016), the Examiner's Answer ("Ans.," mailed Apr. 22, 2016), and the Final Office Action ("Final Act.," mailed May 7, 2015). 2 Appellants' Appeal Brief identifies "Visa International Service Association" as the real party in interest. App. Br. 3. Appeal2016-006615 Application 12/257,987 STATEMENT OF THE CASE Claimed Subject Matter Appellants' "disclosure is directed to a method of conducting a transaction." Spec. ,r 5. Independent claim 11, reproduced below with bracketed notations, is illustrative of the subject matter on appeal and recites: 11. A method comprising: [ ( 1)] receiving, by a server computer of a payment processing network, transaction information including product identifiers associated with products being purchased by a consumer at a merchant in a transaction, and a total transaction amount for the transaction, wherein the server computer is communicatively coupled to an access device at the merchant and to an issuer, and wherein the transaction information is received from the access device at the merchant via an acqmrer; [(2)] sending, by the server computer, to benefit providers associated with the products being purchased requests for benefits for the products; [(3)] receiving, by the server computer, from the benefit providers, benefit information associated with the products; [ ( 4)] determining, by the server computer, based on the benefit information and the product identifiers for the products, that the products are eligible for determined benefits; [(5)] sending, by the server computer, to the access device or a mobile communication device operated by the consumer, the determined benefits; [(6)] receiving, by the server computer, from the access device or the mobile communication device, a selection of one or more of the determined benefits; [(7)] updating the transaction information by applying the selection of the one or more determined benefits to provide an updated transaction amount for the transaction; [(8)] sending an authorization request message with the updated transaction amount for the transaction to the issuer; 2 Appeal2016-006615 Application 12/257,987 [(9)] receiving an authorization response message from the issuer; and [ ( 10)] sending the authorization response message to the merchant via the acquirer. App. Br. 20 (Claims App.). Rejections Claims 11, 12, 16, 18, 25-27, and 41--49 stand rejected under 35 U.S.C. Â§ 101 as directed to non-statutory subject matter. Claims 11, 12, 17, 18, 25-27, 41, 42, and 44--47 stand rejected under 35 U.S.C. Â§ I03(a) as being unpatentable over White (US 2008/0133351 Al, iss. June 5, 2008), Walker (US 7,856,379 B2, pub. Dec. 21, 2010), Keith (US 2007/0174116 Al, iss. July 26, 2007), and Official Notice. Claims 16 and 43 stand rejected under 35 U.S.C. Â§ I03(a) as being unpatentable over White, Walker, Keith, Official Notice, and Crites (US 2006/0229981 Al, pub. Oct. 12, 2006). Claims 48 and 49 stand rejected under 35 U.S.C. Â§ I03(a) as being unpatentable over White, Walker, Keith, Official Notice, and Ullman (US 2002/0002495 Al, pub. Jan. 3, 2002). ANALYSIS Non-Statutory Subject Matter Under 35 U.S.C. Â§ 101, an invention is patent-eligible if it claims a "new and useful process, machine, manufacture, or composition of matter." 35 U.S.C. Â§ 101. The Supreme Court, however, has long interpretedÂ§ 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 3 Appeal2016-006615 Application 12/257,987 Bank Int'!, 134 S. Ct. 2347, 2354 (2014) (internal quotation marks and citation omitted). The Supreme Court, in Alice, reiterated the two-step framework previously set forth in Mayo Collaborative Services v. Prometheus Laboratories, Incorporated, 566 U.S. 66, 82-84 (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., to 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 78-79). In contesting the rejection under Â§ 101, Appellants argue claims 11, 12, 16, 18, 25-27, and 41--49 as a group (see App. Br. 6-13). We select independent claim 11 as representative of this group. Thus, claims 12, 16, 18, 25-27, and 41--49 stand or fall with claim 1. 37 C.F.R. Â§ 4I.37(c)(l)(iv). Appellants argue that the claims are not directed to an abstract idea because the Examiner has not cited to any evidence and "fail[ ed] to provide any prior art to support the conclusion that such elements are representative of an abstract idea." App. Br. 8. Appellants rely on PNC Bank v. Secure Axcess, LLC., Case No. CBM2014-00100 (PTAB Sept. 9, 2014), a non- precedential opinion, to argue lack of evidentiary support because "the PT AB found that there was not sufficient evidence that the placing of a 4 Appeal2016-006615 Application 12/257,987 trusted stamp or seal on a document is a fundamental economic practice or a building block of the modem economy, noting that in Alice there were various references cited on the record that related to the concept of intermediated settlement." Id. at 1 O; Reply Br. 4. 3 Conversely, the Examiner relies on "four of the many examples of an abstract idea explicitly referenced in the guidelines of "Interim Guidance on Patent Subject Matter Eligibility December 16, 2014" as evidence that the claim is directed to an abstract idea. Final Act. 3; see also Ans. 4. As the outset, we note that nothing in Alice requires the Office to identify specific references or provide extrinsic evidence to support a determination that a claim is directed to an abstract idea. Nor did this Board hold, in PNC Bank v. Secure Axcess, that there is any such requirement. Generally, what a different panel did in a different situation under a different set of facts has little bearing on the necessary evidentiary support of another case----or for that matter, this case. 4 Nevertheless, examining earlier cases can play a role, especially in deciding whether a concept that claims are determined to be directed to is an abstract idea. See Amdocs (Israel) Limited v. Openet Telecom, Inc., 841 F.3d 1288, 1294 (Fed. Cir. 2016) ("Instead of a definition [for what an 'abstract idea' encompasses], then, the decisional mechanism courts now apply is to examine earlier cases in which a similar or parallel descriptive nature can be seen-what prior cases were about, and which way they were 3 We note the Reply Brief erroneously identifies the present application as 11/201,554. 4 "Every Board opinion is, by default, a routine opinion until it is designated as precedential or informative" and such "routine opinion[ s are] not binding authority." PTAB Standard Operating Procedure 2, Rev. 9, Â§ VI(A). 5 Appeal2016-006615 Application 12/257,987 decided."). For instance, the patent claims (US 7,631, 191 ("' 191 patent")) the PNC Bank v. Secure Axcess panel had before them are not comparable to the claims here at issue. The '191 patent claims involved authenticating a web page and were classified in class 713 covering electrical computers and digital processing systems subject matter. In contrast, the claims here at issue involve using a service engine to conduct a transaction and are classified in class 705, subclass 14, which cover a financial business practice, and, in particular, the purchase of a good or service involving a discount or inventive. Although we do not consider PNC Bank v. Secure Axcess either controlling or germane, that panel's consideration of evidence in making a determination under the first step of the Alice framework has merit. A similar approach was taken in Apple, Inc. v. Ameranth, Inc., 843 F.3d 1229 (Fed. Cir. 2016). But these cases do not stand for the proposition that Examiners must provide evidentiary support in every case before a determination that a claim is directed to an abstract idea. There is no such requirement. See, e.g., para. IV "July 2015 Update: Subject Matter Eligibility" to 2014 Interim Guidance on Subject Matter Eligibility (2014 IEG), 79 Fed. Reg. 74618 (Dec. 16, 2014) ("The courts consider the determination of whether a claim is eligible (which involves identifying whether an exception such as an abstract idea is being claimed) to be a question of law. Accordingly, courts do not rely on evidence that a claimed concept is a judicial exception, and in most cases resolve the ultimate legal conclusion on eligibility without making any factual findings.)" ( emphasis added). Evidence may be helpful in certain situations where, for instance, 6 Appeal2016-006615 Application 12/257,987 facts are in dispute. But it is not always necessary. And we do not deem it to be necessary in this case. We find that this case's claims themselves and the Specification provide enough information to inform one as to what they are directed to. Representative claim 11 recites a method comprising ten steps: (1) receiving transaction information associated with products being purchased, (2) sending to product benefit providers ( e.g. product manufacturers )5 requests for benefits ( e.g., coupons or discounts), 6 (3) receiving benefits information, ( 4) determining products eligible for benefits, ( 5) sending the eligible benefits, ( 6) receiving a selection of the eligible benefits, (7) updating transaction by applying the selected benefits, (8) sending an authorization request with the updated transaction amount, (9) receiving an authorization response, and (10) sending the authorization message to the merchant. The aforementioned steps describe the process of managing a coupon redemption process as part of conducting a transaction. According to the Specification, the disclosure is directed to a method for conducting a transaction. The method initiates sending transaction information with a product identifier identifying a product associated with a transaction conducted between a merchant and a consumer to a service engine. The service engine is programmed to determine and receive a benefit associated with the product, wherein the benefit is determined after communicating with a supplier of the product. Spec. ,r 5; see also id. ,r 16 (describing managing the coupon redemption process as part of completing a purchase transaction). 5 Spec. ,r 22. 6 Spec. ,r 36. 7 Appeal2016-006615 Application 12/257,987 Appellants insist that the Examiner's characterization of the abstract idea as "describ[ing] the concept of managing transactions between people ( e.g., managing the purchased transaction associated with benefits between user, the merchant and the service providers) ... is still conclusory and does not satisfy the guidelines provided for establishing a proper 101 rejection. Reply Br. 2-3. We disagree. The Examiner's characterization of the claims as directed to managing purchase transactions (Ans. 5) is consistent with Appellants' Specification and the claims before us. Indeed, our reviewing court has held that claims directed to "the mere formation and manipulation of economic relations" and "the performance of certain financial transactions" are directed to abstract ideas. Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat. Ass'n, 776 F.3d 1343, 1347 (Fed. Cir. 2014); see also, e.g., Ultramercial, 772 F.3d at 716 (computer- implemented system for "using advertising as a currency [on] the Internet"); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1352, 1355 (Fed. Cir. 2014) (computer-implemented system for guaranteeing performance of an online transaction); CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1370 (Fed. Cir. 2011) (computer-implemented system for "verifying the validity of a credit card transaction[] over the Internet"); Smart Systems at 1372 ( directed to the formation of financial transactions in a particular field); Kray IP Holdings, LLC v. Safeway, Inc., 107 F.Supp.3d 677, 690 (E.D. Tex. 2015), ajfd, 639 F. App'x 637 (Fed. Cir. 2016) ("Incentive award programs designed to encourage sales of products and services have been familiar aspects of marketing for many years, as the [7,054,830] patent itself acknowledges."). 8 Appeal2016-006615 Application 12/257,987 We also are unpersuaded by Appellants' comparison of the claimed invention to Enfish (Reply Br. 6-9 (quoting Spec. ,r,r 16-20)), because there is a fundamental difference between computer functionality improvements, on the one hand, and uses of existing computers as tools to perform a particular task, on the other. The Federal Circuit applied this distinction in Enfish in rejecting a Â§ 101 challenge at the step one stage in the Alice analysis because the claims at issue focused not on asserted advances in uses to which existing computer capabilities could be put, but on a specific type of data structure, i.e., a self-referential table for a computer database, designed to improve the way a computer carries out its basic functions of storing and retrieving data. Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36 (Fed. Cir. 2016). Here, the alleged improvement that Appellants tout does not concern an improvement to computer capabilities, but instead relates to an alleged improvement in implementing a financial transaction in an online environment for which a computer is used as a tool in its ordinary capacity. For instance, paragraphs 16-20 of the Specification cited by Appellants describe advantages and improvements to the abstract idea itself, which are realized by merely implementing the claimed process in a computing environment. See, e.g., Spec. ,r 19 ("Suppliers can vary discounts to consumers based on the quantity of products currently in their inventories. By varying the discounts, suppliers can control the rate of movement of their products from their inventories. This gives the suppliers the ability to provide discounts as needed to control the quantities of products in their inventories. By optimizing inventories, suppliers can reduce their costs in maintaining their inventory. Also, suppliers can increase their sales revenue by optimally adjusting the discounts and avoiding liquidators."). Like the 9 Appeal2016-006615 Application 12/257,987 abstract idea of hedging risk in Bilski v. Kappas, 561 U.S. 593 (2010), the concept of managing a coupon redemption process during a financial transaction is a fundamental economic and business practice long prevalent in our system of commerce, and an "abstract idea" beyond the scope of Â§ 101. See Alice, 134 S. Ct. at 2356. Thus, we are not apprised of error as to the Examiner's determination of the abstract idea. Step two of the Alice framework is "a search for an 'inventive concept'-i.e., an element or combination of elements that is 'sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself."' Alice, 134 S. Ct. at 2355 (alteration in original) (quoting Mayo, 566 U.S. at 73). Under step two, the Examiner determined that the claims recite additional limitations of using a server computer of a payment processing network, an acquirer, an issuer, and an access device, and that these components simply perform the generic computer functions of receiving and transmitting information that are well-understood, routine and conventional activities previously known to the industry. Final Act. 5---6. According to the Examiner"[ v ]iewed as a whole, these additional claim elements do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself." Id. at 6. Appellants submit that it is not "well-understood, routine and conventional in the field" to include the step of at least "receiving, by a server computer of a payment processing network, transaction information including product identifiers associated with products being purchased by a consumer at a merchant in a transaction ... the transaction information [being] received from the access device at the merchant via an 10 Appeal2016-006615 Application 12/257,987 acquirer," as recited in independent claim 11. As noted about [sic], it is clearly not conventional to send authorization request messages with product identifiers to a central server computer via an acquirer. Since this concept is not present in the "abstract idea" and because this concept defines the claims over the prior art, it must constitute "significantly more." App. Br. 12. We cannot agree. Appellants' Specification indicates that the additional elements are well-known or conventional. 7 Paragraphs 26-28 of Appellants' Specification disclose that a mobile communication device "may be in any suitable form" and "can be any suitable wireless device" ( e.g., cellular or wireless phone, PDAs, pagers, portable computers, and the like) that allows a consumer to conduct transactions with a merchant ("any suitable entity that conducts transactions with consumer") and communicate information "using any suitable form of communication" ( e.g., SMS, MMS, phone call, voice message, voicemail message, IM, email, etc.) with other entities such as a payment processing network. An access device is described as any suitable device ( e.g., POS devices, cellular phones, PD As, personal computers (PCs), tablet PCs, handheld specialized readers, set-top 7 See, e.g., Intellectual Ventures v. Symantec, 838 F.3d at 1317 ("The written description is particularly useful in determining what is well- known or conventional"); Internet Patents Corp., 790 F.3d at 1348 (relying on specification's description of additional elements as "well- known", "common" and "conventional"); TL! Communications LLC v. AV Auto. LLC, 823 F.3d 607,614 (Fed. Cir. 2016) (Specification described additional elements as "either performing basic computer functions such as sending and receiving data, or performing functions 'known' in the art."). 11 Appeal2016-006615 Application 12/257,987 boxes, electronic cash registers (ECRs ), automated teller machines (ATMs), virtual cash registers (VCRs), kiosks, security systems, access systems, and the like) for communicating with a merchant and for interacting with a mobile communication device. Spec. ,r 29. An acquirer "can be any suitable entity that has an account with [a] merchant, such as a bank that operates a bank account for merchant." Id. ,r 30; id. ,r 44 ("Issuer 90 can be any suitable entity that may open and maintain an account associated with consumer 20. Some examples of issuers may be a bank, a business entity such as a retail store, or a governmental entity. In many cases, issuer 90 may also issue a payment device ( e.g., a payment card) to consumer 20. In some embodiments, issuer 90 may also be the acquirer 60."). Appellants' described computer apparatuses, system architecture, software components and functions are well-known and conventional. See id. ,r,r 92-97. Indeed, the Federal Circuit has recognized receiving or transmitting data over a network as well-understood, routine and conventional computer functions, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321 (utilizing an intermediary computer to forward information); TL! Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) (computer receives and sends information over a network). We also are unpersuaded by Appellants' argument that the claimed invention is similar to DDR Holdings LLC v. Hotels.com, L.P., 113 F.3d 12 Appeal2016-006615 Application 12/257,987 1245 (Fed. Cir. 2014) and necessarily rooted in computer technology because "a problem that can be solved by embodiments of the invention relates to helping product suppliers to move excess inventory by closely monitoring purchases of their products in real time and providing variable benefits in real time based upon such inventories. Embodiments of the invention solve this problem by utilizing a distributed computer system that may include a payment card processing infrastructure." App. Br. 12; see also Reply Br. 11. First, the claimed invention does not address a problem unique to the Internet or computer networks, as such, the "claims here do not address problems unique to the Internet, so DDR has no applicability." Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1371 (Fed. Cir. 2015)). Second, Appellants do not identify any problem particular to computer networks and/or the Internet that the claims allegedly overcome. Appellants' claimed solution is rooted in the routine use of conventional computer technology to carry out the abstract idea of addressing a business problem pertaining to optimizing inventories by applying benefits or coupons. As our reviewing court has held, merely reciting "tangible components" does not render claims non-abstract where, as here, "the components [are] conventional and [are] used in conventional ways." Affinity Labs. of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1262 (Fed. Cir. 2016) ( noting that claims that recited "simply [] the use of cellular telephones as tools in the aid of a process focused on an abstract idea" was "not enough to constitute patentable subject matter"); see also Prism Techs. LLC v. T-Mobile USA, Inc., 696 Fed. Appx. 1014, 1017 (Fed. Cir. 2017) ( claimed "authentication server," "access server," "Internet 13 Appeal2016-006615 Application 12/257,987 Protocol network," "client computer device," and "database" amounted to "indisputably generic computer components"). For at least the foregoing reasons, Appellants have not persuaded us the Examiner erred in rejecting the claims under 35 U.S.C. Â§ 101 as directed to patent-ineligible subject matter. Accordingly, we sustain the rejection underÂ§ 101 of independent claim 11, including claims 12, 16, 18, 25-27, and 41--49, which fall with claim 11. Obviousness Independent claims 11 and 41 In rejecting independent claims 11 and 41, "[t]he Examiner takes Official Notice that is notoriously old and well known in the art of having the POS ( access device) to receive multiple products purchased associated with multiple of product identifierÂ§ and it well known in the art that multiple benefitÂ§ associated with multiple productÂ§ in the purchased transaction are from multiple benefit providers." Final Act. 15. Appellants challenge the Examiner's reliance on Official Notice in finding that White teaches limitations ( 1) and ( 4) of independent claims 11 and 41. App. Br. 14--18. In particular, Appellants traverses and disagrees with the Examiner's Official Notice. Appellants request that the Examiner provide a prior art reference to support the conclusion that the alleged feature of the Official Notice was "well known" in the prior art. If it was well known, then it should not be unduly burdensome for the Examiner to find a prior art reference to support the assertion. Further, even if a feature is "well known," which we are not admitting, the reference found may not be combinable with White, Walker, and Keith. Further, Appellants submit that it is not "well known" in the art to receive multiple benefits from 14 Appeal2016-006615 Application 12/257,987 multiple benefit providers during a transaction that occurs in the system described in the present claims. Id. at 18. In response to Appellants' argument, the Examiner acknowledges reliance on the combination of White and Official Notice (Ans. 22) but argues that Appellants' "arguments and comments do not appear to constitute an adequate traverse because applicant has not specifically pointed out the supposed errors in the examiner's action, which would include stating why the noticed fact is not considered to be common knowledge or well-known in the art." Ans. 22-23. We disagree that the Appellants just generally traversed the rejection because as indicated above, Appellants pointed out a supposed error in the Examiner's action and provided some rationale as to why the noticed fact is not considered to be common knowledge or well-known in the art. As such, Appellants' traversal contained adequate information or argument to create on its face, a reasonable doubt regarding the circumstances justifying notice of what is well-known to one of ordinary skill in the art. Thus, we conclude Appellants timely traversed the taking of Official Notice. Because Appellants adequately traversed the Examiner's assertion of Official Notice, the Examiner should have provided documentary evidence if the rejection is to be maintained. See 37 CPR 1.104( c )(2); see also In re Zurko, 258 F .3d 1379, 1386 (Fed. Cir. 2001) ("[T]he Board [or examiner] must point to some concrete evidence in the record in support of these findings" to satisfy the substantial evidence test). 15 Appeal2016-006615 Application 12/257,987 We also find the Examiner's citation to a definition from Wikipedia untimely, and the reliance on In re Haiza fails to remedy the above deficiency. See Ans. 23-24. As such, to the extent that the Examiner has not established a prima facie case of obviousness on the record before us, we do not sustain the rejection of claims 11 and 41 under 35 U.S.C. Â§ 103(a). For the same reasons, we do not sustain the rejections of claims 12, 16, 18, 25-27, and 42--49, which depend from either of claims 11 or 41. DECISION The Examiner's rejection of claims 11, 12, 16, 18, 25-27, and 41--49 under 35 U.S.C. Â§ 101 is affirmed. The Examiner's rejections of claims 11, 12, 16, 18, 25-27, and 41--49 under 35 U.S.C. Â§ 103(a) are reversed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). AFFIRMED 16