Ex Parte Jung et al

Patent Trials and Appeals Board

Mar 21, 2016

11893370 - (D) (P.T.A.B. Mar. 21, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111893,370 08/14/2007 Edward K.Y. Jung
80118 7590 03/21/2016
Constellation Law Group, PLLC
P.O. Box 580
Tracyton, WA 98393
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.
SEl-0983-US 4262
EXAMINER
LIN, JERRY
ART UNIT PAPER NUMBER
1631
MAILDATE DELIVERY MODE
03/21/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EDWARD K.Y. JUNG, ROYCE A LEVIEN,
ROBERT W. LORD, and LOWELL L. WOOD, JR. 1
Appeal2013-003004
Application 11/893,370
Technology Center 1600
Before ERIC B. GRIMES, LORA M. GREEN, and JOHN G. NEW,
Administrative Patent Judges.
NEW, Administrative Patent Judge.
DECISION ON APPEAL
1Appellants state the real party-in-interest is Searete, LLC. App. Br. 5.
Appeal2013-003004
Application 11/893,370
SUMMARY
Appellants file this appeal under 35 U.S.C. § 134(a) from the
Examiner's Non-Final Rejection of claims 48, 49, 54-57, 60-65, 70-73, and
76-86 as unpatentable under 35 U.S.C. § 103(a) as being obvious over the
combination ofH.-L. Qiao, J. Yang, and Y.-W. Zhang, Specific Serum IgE
Levels and FCERI/J Genetic Polymorphism in Patients with Penicillins
Allergy, 59 ALLERGY 1326-32 (2004) ("Qiao") and Liew (US 2007 /0054282
Al, March 8, 2007) ("Liew").
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
NATURE OF THE CLAIMED INVENTION
Appellants' invention is directed to methods, apparatus, computer
program products, devices and systems that carry out accepting an input
identifying at least one allergy, searching an individual's health data to
identify at least one innate allergy determinant of the allergy; searching the
individual's health data to identify at least one acquired allergy determinant
of the allergy; determining allergy risk information for the individual
relative to a specified population; and presenting a signal related to
ingestion-dependent allergy risk information for the individual. Abstract.
REPRESENTATIVE CLAIM
Claim 48 is representative of the claims on appeal and recites:
48. A method comprising:
accepting an input identifying at least one allergy at
one or more user interfaces; and transmitting data from the
one or more user interfaces to at least one data analysis
system, the data including at least the at least one allergy:
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App. Br. 92.
the data analysis system being capable of searching
an individual's health data to identify at least one innate
allergy determinant of the at least one allergy; searching
the individual's health data to identify at least one acquired
allergy determinant of the at least one allergy;
determining, based on the innate and acquired
allergy determinants, allergy risk information for the
individual relative to a specified population;
and the data analysis system further being capable
of sending a signal to either the one or more user interfaces
or a different user interface in response to the allergy risk
information for the individual relative to a specified
population, which signal transmits ingestion-dependent
allergy risk information for the individual relative to a
specified population.
ISSUES AND ANALYSES
The Examiner's prima facie case
With respect to claims 48, 63, 64, and 79-86, the Examiner finds Qiao
teaches accepting an input identifying at least one allergy, searching an
individual's health data to identify at least one innate and one acquired
allergy determinant, determining the allergy risk information for an
individual relative to a specified population, and presenting a signal
regarding ingestion-dependent allergy risk information for the individual
relative to a specified population. Non-Final Act. 3. The Examiner finds
Liew teaches using a "Scanalyzer," which would require a computer with
inputs, microprocessor, software, user interface, computer readable medium,
recordable medium, and communication medium. Id. at 3--4.
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With respect to claims 49, 54-57, 60, 61, 65, 70-73, 76, and 77, the
Examiner finds Qiao teaches accepting an input identifying a Type I
immediate hypersensitivity reaction or a Type IV delayed hypersensitivity
reaction, searching an individual's medical history to identify at least one
innate or acquired allergy determinant, searching the individual's health data
to identify a genetic determinant, searching the individual's health data to
identify a statistically characterized innate or acquired allergy determinant,
and determining the statistically characterized allergy risk information for an
individual relative to a specified population. Ans. 4. With respect to claims
62 and 78, the Examiner finds Qiao and Liew teach determining allergy risk
information relative to a clinical trial population. Id. at 5.
The Examiner concludes it would have been obvious for one of
ordinary skill in the art to implement the processes of Qiao on a computer
and with computer programming, as taught by Liew. Ans. 4. The Examiner
further finds one of ordinary skill in the art would have been motivated to
use the genetic polymorphisms discovered by Qiao as biomarkers in the
system of Liew to determine if an individual has a penicillin allergy. Id. We
agree with the Examiner's reasoning and adopt the Examiner's conclusions
as our own.
A. Independent claim 48
Issue 1
Appellants argue the Examiner erred by allegedly failing to map the
teachings of the prior art to the limitations of the claim. App. Br. 51.
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Analysis
Appellants argue the Examiner has mapped the limitations of claim 48
reciting "[a] accepting an input identifying at least one allergy at one or
more user interfaces onto a configuration" ("limitation a") and:
[T]ransmitting data from the one or more user interfaces to at
least one data analysis system, the data including at least the at
least one allergy: the data analysis system being capable of
searching an individual's health data to identify at least one
innate allergy determinant of the at least one allergy; searching
the individual's health data to identify at least one acquired
allergy determinant of the at least one allergy; determining, based
on the innate and acquired allergy determinants, allergy risk
information for the individual relative to a specified population;
and the data analysis system further being capable of sending a
signal to either the one or more user interfaces or a different user
interface in response to the allergy risk information for the
individual relative to a specified population, which signal
transmits ingestion-dependent allergy risk information for the
individual relative to a specified population.
("limitation b") to Qiao. App. Br. 51. Appellants contend the Examiner
"has not explained how it reaches such mappings under the framework of
the broadest reasonable interpretation consistent with the Specification as is
the USPTO's burden (e.g., such as by examples drawn from Appellant[s']
claims or detailed description)." Id. at 51-52.
The Examiner responds that, in the Non-Final Action, the Examiner
provided paragraph numbers or relevant passages for each of the limitations,
as well as explanations in parenthetical statements where the mapping may
be unclear. Ans. 8. Specifically, the Examiner finds Qiao teaches accepting
an input identifying at least one allergy; and searching an individual's health
data to identify at least one innate and one acquired allergy determinant.
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Non-Final Act. 3 (citing Qiao 1327-1329). The Examiner finds Qiao
teaches determining the allergy risk information for an individual relative to
a specified population (i.e., those with allergies or the control group without
allergies) and presenting a signal (i.e., presenting data) regarding ingestion-
dependent allergy risk information (e.g., ampicillin and amoxicillin are
administered orally to patients) for the individual relative to a specified
population. Id. (see also Qiao Tables 1-3).
The Examiner notes that although Qiao teaches analyzing data and
creating statistical data, it does not explicitly teach using a user interface,
Liew discloses using a Scanalyzer, which requires a computer with inputs,
microprocessor, software, user interface, computer readable medium,
recordable medium, and communications medium. Non-Final Act. 3 (citing
Liew iii! 122, 137)
We are not persuaded by Appellants' argument. We adopt the
Examiner's reasoning and find the passages of Qiao and Liew cited by the
Examiner teach the limitations recited by the Examiner and establish a prima
facie case of obviousness. Moreover, Appellants allege that the Examiner
failed to map the limitations to the cited prior art, but provide no evidence or
example in support of this argument other than to recite a portion of the
reference cited to by the Examiner and the language of the disputed
limitations, and making an unsupported assertion that the Examiner failed to
map the prior art to the limitations. Appellants do not provide any
arguments as to why the passages cited by the Examiner fail to teach the
disputed limitations, but merely gainsay the Examiner's findings. Such
attorney argument, unsupported by the evidence of record is insufficient to
rebut the Examiner's primafacie case. See In re Geisler, 116 F.3d 1465,
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1470 (Fed. Cir. 1997) (Attorney arguments and conclusory statements that
are unsupported by factual evidence are entitled to little probative value).
Issue 2
Appellants argue the Examiner erred because Qiao neither teaches nor
suggests the limitations of claim 48. App. Br. 54.
Analysis
Appellants argue that "as Appellant[ s] can discern, the Qiao reference
does not recite" limitations a orb of claim 48. App. Br. 55. Appellants then
quote extensive passages of Qiao cited to by the Examiner. Id. at 54-56.
According to Appellants, the portions of Qiao cited to by the Examiner do
not recite the text of at least limitations a orb of claim 48. Id. at 58.
Comparing the quoted language of the prior art and the limitations of claim
48, Appellants assert they have "shown by direct quotations that
[i]ndependent [ c ]laim 48 and the Qiao reference are very different on their
faces." Id. Consequently, argue Appellants, the Examiner has provided no
objectively verifiable evidence, or argument based on objectively verifiable
evidence, as to how Qiao could be modified or combined to teach at least
limitations a and b of claim 48.
The Examiner responds that although Qiao does not employ the exact
language of the instant claims and/or use the same terms, the prior art need
not do so to make the claim obvious. Ans. 8. The Examiner points out that,
for a showing of obviousness by the cited prior art of the elements recited in
a claim, the prior art need not have the exact same language as the instant
claims. Id. Rather, the Examiner notes that it is sufficient that the prior art
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teachings would be understood by one of ordinary skill in the art to
encompass, or be the equivalent of, the claimed invention with respect to the
language used by Appellants. Id. The Examiner states that the basis of the
rejection and the previous arguments of record have explained how the
teachings of the cited references render claim 48 obvious. Id.
We are not persuaded by Appellants' arguments. We agree with the
Examiner that the test for obviousness is not whether the prior art recites,
ipsissimis verb is, the language of the claim limitations. Rather, the test for
obviousness is "what the combined teachings of the references would have
suggested to those of ordinary skill in the art." In re Keller, 642 F.2d 413,
425 (C.C.P.A. 1981). Appellants have failed to make any argument,
supported by evidence of record, that a person of ordinary skill in the art
would not have understood the teachings of Qiao to teach the disputed
limitations of claim 48.
The Examiner has cited explicitly to the teachings of the prior art to
show how Qiao teaches limitations of claim 48. We agree with the
Examiner's findings and reasoning that Qiao teaches the disputed
limitations, and conclude that the Examiner has established a prima facie
case of obviousness. Appellants assert that the recited language of Qiao is
different than that of claim 48 and that the teachings of Qiao and the claimed
subject matter are very different. But Appellants make no argument,
supported by evidence, concerning what the understanding of a person of
ordinary skill in the art would be with respect to the teachings of Qiao, or
why, in the understanding of such a person of ordinary skill, Qiao does not
teach or suggest the limitations of the claim.
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Issue 3
Appellants argue the Examiner erred because Liew neither teaches nor
suggests the limitations of claim 48. App. Br. 60.
Analysis
Appellants repeat their arguments made with respect to Qiao supra,
viz., that Liew does not recite the language of limitations a and b of claim
48. App. Br. 62. We find Appellants' arguments no more persuasive in this
instance and equally ineffective in overcoming the Examiner's prima facie
conclusion of obviousness.
Issue 4
Appellants argue the Examiner erred by impermissibly employing
hindsight analysis, or improperly applied personal knowledge, or official
notice in arriving at a conclusion of obviousness. App. Br. 65.
Analysis
Appellants argue separately that, because neither Qiao nor Liew
teaches the disputed limitations of claim 48, the only applicable evidence of
record is Appellants' Specification. App. Br. 59-60; 65-66. Appellants
contend the Examiner has provided no "objectively verifiable evidence," or
argument based on such evidence, in support of the Examiner's findings
regarding what the technical material cited by the Examiner teaches. Id. at
66. Appellants allege the Examiner is therefore relying on "personal
knowledge" and/or is taking "official notice" of one or more factors to reach
the factual conclusion of what the cited technical material teaches. Id.
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Appellants request that the Examiner provide an affidavit or declaration
setting forth evidence in support of the Examiner's allegedly unsupported
assertions regarding what the cited technical material teaches. Id.
We are not persuaded by Appellants' arguments. As an initial matter,
it is the combination of Qiao and Liew that the Examiner finds teaches the
limitations of claim 1. "[O]ne cannot show non-obviousness by attacking
references individually where ... the rejections are based on combinations of
references." Keller, 642 F.2d at 426.
Moreover, we have related supra our reasoning as to why Appellants
have failed to overcome the Examiner's findings that Qiao and Liew, in
combination, teach the limitations of claim 48, and we incorporate that
reasoning here by reference. Since Appellants have failed to rebut the
Examiner's prima facie case in this regard, the logic of their argument that
the Examiner must have relied on some other source, i.e., Appellants'
Specification, personal knowledge, or official notice, fails. We therefore
affirm the Examiner in this respect.
Issue 5
Appellants argue the Examiner erred because ( 1) the suggested
modifications or combinations to meet the limitations of claim 48 are a
"mere conclusory statement" without evidentiary support; (2) change the
principle of operation of components of the cited references; (3) render such
components unfit for their intended purpose; and (4) there is no teaching to
combine or modify the components as a matter of law. App. Br. 66-67.
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Analysis
Appellants quote several passages from the Non-Final Action and
then argue that the findings set forth by the Examiner are unsupported and
erroneous, and appear to mischaracterize the Qiao and Liew references.
App. Br. 68.
Furthermore, Appellants argue that Qiao teaches:
Radioallergosorbent test was used to examine eight kinds of
specific IgE antibodies, which included four kinds of major and
minor antigenic determinants, respectively, in the sera of 448
patients with penicillins allergy and 101 healthy subjects. A
restriction endonuclease fragment length polymorphism of a
polymerase chain reaction product was used for analysis of the
F ceRIB [sic] polymorphism.
App. Br. 70 (quoting Qiao Abstr.). Appellants argue that, were one to
incorporate the "method for the detection of gene transcripts in blood" as
taught by Liew into the structure of Qiao, Qiao would no longer have a
method for the radioallergosorbent test used to examine eight kinds of
specific IgE antibodies. Id. Therefore, argue Appellants, the modifications
or combinations suggested by the Examiner would change the principle of
operation of Qiao for at least this reason. Id.
Appellants argue further that the technologies of Qiao, modified or
combined with the structure of Liew as suggested by the Examiner would
require "substantial reconstruction and redesign of the elements shown in
[Qiao] as well as a change in the basic principle under which the [Qiao]
construction was designed to operate" in order to render the Examiner's
suggested combination capable of performing even a subset of the intended
purposes of the technologies of Qiao. App. Br. 71 (quoting MPEP
§ 2143.01).
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Appellants argue further that the Examiner has provided no evidence
that an apparent reason to modify or combine the cited technical materials to
reach the recitations of claim 48 existed at the time of invention. App. Br.
73. According to Appellants, even assuming, arguendo, that the Examiner
had produced an as-yet-unknown objective teaching of how to modify or
combine the teachings of Liew with the technologies of Qiao to reach
limitations a and b of claim 48, such modification and/or combination would
render the technologies of Qiao unsatisfactory for one or more of its
intended purposes. App. Br. 73-74.
The Examiner responds that there is nothing in the prior art that
prevents one of ordinary skill in the art to conduct the tests of Qiao and Liew
together. Ans. 9. In other words, the Examiner finds one of ordinary skill in
the art could perform the method of Qiao, take the results, and incorporate it
into the method of Liew. Id. Therefore the references may be combined
without modifying the methods that would change the principles of
operations of either method. Id.
We are not persuaded by Appellants' arguments. Appellants assert
that findings of the Examiner are unsupported and erroneous, and appear to
mischaracterize the Qiao and Liew references, but again, provide no
evidence in support of this conclusory assertion. See App. Br. 68. As
explained supra, we accord such assertions little probative weight. This is
also applicable to Appellants' other arguments, which amount to little more
than unsupported gainsaying of the Examiner's findings and conclusions.
Furthermore, Appellants assert that the combination of Qiao and Liew
would render Qiao non-functional or unsuitable for its intended purpose, or
would require extensive hypothetical modification. However, the proper test
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for obviousness is not whether "the features of a secondary reference may be
bodily incorporated into the structure of the primary reference . . . . Rather,
the test is what the combined teachings of the references would have
suggested to those of ordinary skill in the art." Keller, 642 F.2d at 425. In
the Non-Final Office Action, the Examiner found that Qiao teaches all of the
limitations of claim 48 with the exception of a user interface, for which
limitation the Examiner relied on Liew. Ans. 3. Further, the Examiner
concluded:
It would have been obvious for one ordinary skill in the art at the
time of the invention to implement the processes of Qiao et al.
on a computer and with computer programming. First,
implementing a known function on a computer has been deemed
obvious to one of ordinary skill in the art. In addition, one of
ordinary skill in the art would have combined the computer
system of Liew with the process of Qiao et al. to gain the benefit
of creating a system to determine if a patient has an allergy. Qiao
et al. has identified genetic polymorphisms which contribute to
allergies to penicillins (abstract). Liew teaches that their system
may be used to diagnose conditions via biomarkers (paragraph
0008). Thus, one of ordinary skill in the art would have been
motivated to use the genetic polymorphisms discovered by Qiao
et al. as biomarkers in the system of Liew to determine if an
individual has a penicillin allergy.
Non-Final Act 4-5. Appellants do not contradict, or even address, the
Examiner's conclusions recited supra. We therefore agree with the
Examiner's reasoning in this respect and conclude that Appellants'
conclusory arguments have not overcome the Examiner's prima facie
conclusion of obviousness. We consequently affirm the Examiner's
rejection of claim 48. Moreover, because Appellants rely on the same
arguments for dependent claims 49, 54-57, 60-65, 70-73, 76-80, and 84-
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86, we similarly affirm the Examiner's rejection of those claims upon this
ground. See App. Br. 76; 88-89.
B. Claim 49
Issue
Appellants argue that dependent claim 49 is independently patentable.
App. Br. 76. Claim 49 recites:
49. The method of claim 48 wherein the accepting an input
identifying at least one allergy at one or more user interfaces
compnses:
accepting an input identifying at least one Type I immediate
hypersensitivity reaction, Type II cytotoxic hypersensitivity
reaction, Type III immune-complex reaction, or Type IV delayed
hypersensitivity at one or more user interfaces.
Id. at 92. Appellants contend the Examiner erred because the combined
cited prior art references neither teach nor suggest the limitations of claim
49.
Analysis
Appellants argue that Qiao does not recite limitations a orb of claim
48, from which claim 49 depends, nor does it recite the limitation of claim
49. App. Br. 77-78. Therefore, Appellants argue, the prior art references do
not, on their face, establish a prima facie case of obviousness and the
language of Qiao and claim 49 show that the reference is very different from
claim 49. Id. at 80.
The Examiner responds that Qiao teaches identifying individuals with
different allergic reactions, such as anaphylactic shock or urticaria, which
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are forms of type l hypersensitivity. Ans. 9-10 (citing Qiao 1328-29; Table
1; Table 3). The Examiner finds that, by teaching the step of obtaining this
information, Qiao teaches accepting an input identifying at least one Type I
immediate hypersensitivity reaction. Id. at 10. The Examiner therefore
finds Qiao teaches the limitation of claim 49.
We agree with the Examiner. As we have related supra, the test for
for obviousness is not an ipsissimis verbis test, but is based on the
understanding of a person of ordinary skill in the art. Appellants make no
substantial argument that the teachings of Qiao are such that a person of
ordinary skill would fail to understand that Qiao teaches or suggests the
limitation in question. See Keller, 642 F.2d at 425. Moreover, we agree
with the Examiner's reasoning that the cited passages and tables of Qiao
teach accepting an input identifying at least one Type I immediate
hypersensitivity reaction. We consequently affirm the Examiner's rejection
of claim 49.
C. Claim 54
Issue
Appellants also argue dependent claim 54 separately. App. Br. 80.
Claim 54 recites:
54. The method of claim 48 wherein the transmitting data
from the one or more user interfaces to at least one data analysis
system, the data including at least the at least one allergy: the
data analysis system being capable of searching an individual's
health data to identify at least one innate allergy determinant of
the at least one allergy; searching the individual's health data to
identify at least one acquired allergy determinant of the at least
one allergy; determining, based on the innate and acquired
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allergy determinants, allergy risk information for the individual
relative to a specified population comprises:
transmitting the data from the one or more user
interfaces to at least one data analysis system, the data including
at least the at least one allergy: the data analysis system being
capable of searching the individual's medical history data to
identify at least one innate allergy determinant of the at least one
allergy; searching the individual's health data to identify at least
one acquired allergy determinant of the at least one allergy;
determining, based on the innate and acquired allergy
determinants, allergy risk information for the individual relative
to a specified population.
Id. at 93. Appellants contend the cited prior art neither teaches not suggests
the limitations of claim 54. Id. at 83.
Analysis
Appellants essentially repeat their arguments with respect to claims 48
and 49, supra, viz., that neither Qiao nor Lie\"/ recites the language of claim
54, and therefore the references neither teach nor suggest the limitation.
App. Br. 81-82.
The Examiner responds that Qiao teaches searching an individual's
medical data to identify at least one innate allergy determinant. Ans. 10
(citing Qiao 1327, 1328). The Examiner finds Qiao teaches the sample
provided by the subjects also provides the individual's health data which
includes at least searching the individual's health data to identify a
statistically characterized innate allergy determinant. Id. (citing Qiao 1328).
The Examiner therefore finds Qiao and Liew teach the disputed limitation.
We agree with the Examiner's findings that Qiao and Liew, in
combination, teach the limitations of claim 54. Moreover, and as we have
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related supra, Appellants' argument is not the proper test for an obviousness
analysis. Appellants attempt no argument as to what the prior art would
teach or suggest to a person of ordinary skill in the art, Appellants merely
argue that because the prior art fails to recite the language of the claim, the
prior art fails to teach the limitations. That is insufficient to rebut the
Examiner's primafacie case of obviousness, and we affirm the rejection of
claim 54.
D. Claim 55
Issue
Appellants argue dependent claim 55 separately. App. Br. 84. Claim
55 recites:
55. The method of claim 48 wherein the transmitting data
from the one or more user interfaces to at least one data analysis
system, the data including at least the at least one allergy: the
data analysis system being capable of searching an individual's
health data to identify at least one innate allergy determinant of
the at least one allergy; searching the individual's health data to
identify at least one acquired allergy determinant of the at least
one allergy; determining, based on the innate and acquired
allergy determinants, allergy risk information for the individual
relative to a specified population comprises:
transmitting the data from the one or more user interfaces
to at least one data analysis system, the data including at least the
at least one allergy: the data analysis system being capable of
searching an individual's health data to identify at least one
genetic determinant, epigenetic determinant, or gene expression
determinant of the at least one allergy; searching the individual's
health data to identify at least one acquired allergy determinant
of the at least one allergy; determining, based on the innate and
acquired allergy determinants, allergy risk information for the
individual relative to a specified population.
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Id. at 94. Appellants argue the Examiner erred in finding Qiao teaches the
limitations of claim 55. App. Br. 87-88.
Analysis
Appellants repeat, almost verbatim, their arguments with respect to
claims 48, 49, and 54. App. Br. 84-88.
The Examiner finds Qiao teaches searching an individual's medical
data to identify at least one innate allergy determinant. Ans. 10-11 (citing
Qiao 1327; 1328). The Examiner finds the sample provided by the subjects
also provides the individual's health data which includes at least searching the
individual's health data to identify a statistically characterized innate allergy
determinant. Id. (citing Qiao 1328).
We agree with the Examiner's reasoning and, because Appellants fail
to make an argument successfully rebutting the Examiner's conclusion of
obviousness, we affirm the Examiner's rejection of claim 55.
CONCLUSION
For the reasons set forth supra, we agree with the Examiner's
reasoning that claims 48, 49, 54-57, 60-65, 70-73, and 76-86 are prima
facie obvious. We consequently affirm the rejection of the claims.
DECISION
The Examiner's rejection of claims 48, 49, 54-57, 60-65, 70-73, and
76-86 as unpatentable under 35 U.S.C. § 103(a) is affirmed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a)(l). See 37 C.F.R.
§ l.136(a)(l )(iv).
AFFIRMED
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