Ex Parte Lumley

Patent Trial and Appeal Board

Oct 30, 2017

13552238 (P.T.A.B. Oct. 30, 2017)

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.
13/552,238 07/18/2012 Andrew T.tJMTEY E1330.USC1W+ 4819
114581 7590
EIP US LLP
2468 Historic Decatur Road
Suite 200
San Diego, CA 92106
EXAMINER
KLEIN, GABRIEL J
ART UNIT PAPER NUMBER
3641
NOTIFICATION DATE DELIVERY MODE
11/01/2017 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):
s andiego @ eip .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW LUMLEY
Appeal 2016-002768
Application 13/552,238
Technology Center 3600
Before LISA M. GUIJT, ERIC C. JESCHKE, and GORDON D. KINDER,
Administrative Patent Judges.
JESCHKE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Andrew Lumley (“Appellant”)1 seeks review under 35 U.S.C.
§ 134(a) of the Examiner’s decision, as set forth in the Final Office Action
dated January 2, 2015 (“Final Act.”), rejecting claims 1, 2, 4, 6, 7, 9, 11, 14,
19, 22, 23, 25—32, and 34—39. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellant identifies Jet Physics Limited as the real party in interest.
Appeal Br. 3.
Appeal 2016-002768
Application 13/552,238
BACKGROUND
The disclosed subject matter “relates to a material and a shaped
charge, particularly but not exclusively a linear shaped charge.” Spec. 1.
Claims 1,19, 30, and 34 are independent. Claim 1 is reproduced below:
1. A linear shaped charge comprising:
a liner comprising a material comprising at
least a first plurality of particles dispersed in a
polymer matrix, the particles being substantially
spherical, the particles having a diameter of 70
micro-met[er]s or less,
wherein 20 to 30 wt% of the particles have a
diameter of 10 micro-met[er]s, wherein each of the
particles includes at least one metal, and wherein
the particles are packed in the polymer matrix with
a density of at least 0.6 of the density of the at least
one metal, wherein the material is flexible.
REJECTIONS
1. Claims 1, 2, 4, 6, 7, 9, 11, 19, 22, 23, 25—28, and 34 stand
rejected under 35 U.S.C. § 103(a) as unpatentable over Lewis (GB
2 165 868 A, published Apr. 23, 1986).
2. Claims 14, 29, and 30 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Lewis and Parkhurst (US 3,185,089, issued May 25,
1965).
3. Claims 31, 32, 35—37, and 39 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Lewis and Clark (US 6,588,344 B2, issued
July 8, 2003).
4. Claim 38 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Lewis, Parkhurst, and Clark.
2
Appeal 2016-002768
Application 13/552,238
DISCUSSION
Rejection 1 — The rejection of claims 1, 2, 4, 6, 7, 9, 11,
19, 22, 23, 25—28, and 34 under 35 U.S.C. § 103(a)
Appellant argues the patentability of the three independent claims in
this Rejection—claims 1,19, and 34—as a group and does not provide
separate arguments for any dependent claims. Appeal Br. 5—11. We select
independent claim 1 as representative, with the remaining claims standing or
falling with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv) (2014).
A. The Density Limitation
Claim 1 recites, among other limitations, that “the particles are packed
in the polymer matrix with a density of at least 0.6 of the density of the at
least one metal.” Appeal Br. 13 (Claims App.).2 In the Rejection, the
Examiner stated that “Lewis discloses a material comprising 97.5% copper
powder and 2.5% PEBAX” and that “the density of copper is 8.94 g/cc and
the density of PEBAX is 1 g/cc.” Final Act. 2 (discussing Lewis 1,11. 9—
29); see also Lewis 1,11. 9-11 (stating that “the present invention relates to
the finding that the thermoplastic copolymer binding system used in the
invention serves as a practical binder matrix to envelop extremely high
loadings from 90% to 97.5% by weight) of finely divided metal powder
and/or flake”), id., 1. 15 (discussing “a polyether amide block copolymer
termed PEBAX RTM”). The Examiner stated, “[tjhus, it is clear that the
copper particles, which are uniformly distributed throughout the material,
are packed in the PEBAX with a density that is greater than 0.6 of the
density of copper (i.e. the material is greater than 60% copper by
volume[)].” Final Act. 2.
2 We will refer to this as the “density limitation.”
3
Appeal 2016-002768
Application 13/552,238
Before turning to the arguments regarding the density limitation, we
discuss four points of agreement. First, both Appellant and the Examiner
agree that the density limitation requires that the total mass of the
“particles” in a given volume of “material” divided by the given volume
of “material” (which includes both “particles” and “polymer”) must be
greater than or equal to 0.6 times the density of the metal forming the
“particles.”3 See Appeal Br. 6 (paragraph beginning “In response”); Ans. 3
(“In other words, said limitation requires that total mass of the particles
divided by the total volume of the claimed ‘material’ is at least 60% of the
density of the metal that forms the particles.”). Appellant provides
calculations in support of the position that the embodiment at issue from
Lewis does not satisfy the density limitation. See Appeal Br. 8 (providing
summary of prior calculations). The Examiner, in contrast, provides
calculations in support of the position that the embodiment at issue from
Lewis does satisfy the density limitation. See Ans. 5—8.
As the second point of agreement, both Appellant and the Examiner
perform their calculations assuming a lOOg sample of “material,” such that
the total mass of the “particles” of copper is 97.5g. See Appeal Br. 8; Ans.
5 (bottom two bullet points) — 6 (top bullet point).
Third, both Appellant and the Examiner perform their calculations
assuming that the density of the metal forming the “particles” refers to
the density of solid copper (8.94 g/cc). See Appeal Br. 8; Ans. 8 (“The
limitation in question, as set forth above, requires BDc to be at least 0.6 of
the density of copper (8.94 g/cc).”).
3 When referring to any aspect of this construction in the discussion
below, we will use bold text to identify language of the construction.
4
Appeal 2016-002768
Application 13/552,238
Fourth, both Appellant and the Examiner perform their calculations
using 2.5 cc as the volume of the PEBAX polymer component of the given
volume of “material.” See Appeal Br. 8; Ans. 7 (bullet point beginning
“Similar”).
Appellant and the Examiner disagree, however, as to the volume of
the copper in the given volume of “material.” Appellant calculates a
volume of 18.75 cc by dividing the hypothetical 97.5 g of copper by a
density of 5.2 g/cc. See Appeal Br. 8. The Examiner, in contrast, calculates
a volume of 10.9 cc by dividing the same hypothetical 97.5 g of copper by a
density of 8.94 g/cc. See Appeal Br. 6 (beginning at “Looking first”) — 7
(ending at “10.9 cc is the total volume occupied by solid copper spheres in
the 100 grams of the Lewis material”). In sum, the only difference between
the calculations performed by Appellant and the Examiner regarding the
density limitation is the density value of copper used. Compare Ans. 5—8,
with Appeal Br. 8. The value used by the Examiner (8.94 g/cc) is the
density of solid copper. See, e.g., Appeal Br. 7. The value used by
Appellant (5.2 g/cc) is, according to Appellant, “the highest end” of the
range of the “bulk density for copper powder.” Appeal Br. 8 (stating that the
“bulk density of copper powder is between 1.0 g/cc and 5.2 g/cc at most”).4
Id. at 8. With that background, we turn now to the arguments regarding the
density limitation, which relate to which of the two density values discussed
above is the proper value to calculate the volume of the copper in the given
volume of “material.”
4 Appellant does not identity the source of this range of values as the
bulk density of copper powder.
5
Appeal 2016-002768
Application 13/552,238
Appellant argues that “the Examiner has failed to establish that Lewis
discloses” the density limitation and that “the Examiner’s conclusions
regarding the disclosure of Lewis — specifically regarding the packing
density of the material disclosed in Lewis — are fundamentally inconsistent
with basic principles of physics.” Appeal Br. 6, 7. Appellant states that
“Lewis discloses a ‘thermoplastic copolymer binding system’ which
‘envelop[s] . . . 90% to 97 .5 % by weightU of finely divided metal powder
and/or flake’” (quoting, with emphasis, Lewis 1,11. 9-11) and argues that
“Lewis is completely silent as to the ultimate volume of this mixture, but it is
clear that the ‘finely divided metal powder and/or flake’ of Lewis remains in
‘powder and/or flake’ form after mixing — i.e., nothing in Lewis suggests
that the ‘finely divided metal powder and/or flake’ coalesces into a solid
after mixing.” Appeal Br. 7. Appellant argues that “[a] person of ordinary
skill in the art would surely understand that any material in particulate form
(including powder and flake) includes spaces or voids between the particles,
resulting in a bulk volume that is greater than the volume of an equivalent
weight of solid material” and that “in order to calculate the volume occupied
by a bulk material such as metal powder, it is necessary to use the bulk
density of that material — even when the voids between each particle are
occupied by something other than air.” Id. Thus, Appellant argues, the
proper density value for copper to calculate the given volume of “material”
is the “bulk density of copper powder.” Id. at 8. According to Appellant,
“the Examiner has incorrectly used the density of solid copper (8.94 g/cc) to
calculate the volume of the powder disclosed in Lewis.” Id. at 7. Appellant
argues that the Examiner “has calculated the volume occupied by a given
6
Appeal 2016-002768
Application 13/552,238
weight of solid copper, not the volume occupied by a given weight of copper
‘powder and/or flake,’ as disclosed in Lewis.” Id. at 8.
The issue as to the proper density value turns on whether air pockets
or voids exist between copper particles in the hypothetical 100 g sample
discussed above. The Examiner takes the position that no air or voids exist
between copper particles. See Ans. 3^4 (stating that “a person of ordinary
skill in the art would at once recognize that [the] ‘plastic/copper mix’ [Lewis
1,1. 26] is a material consisting o/PEBAX and copper (evaporating off all of
the solvent would leave only copper and PEBAX behind, without any air or
voids)”); see also id. at 9 (“There is no air in between the particles of copper
powder in the Lewis material, since PEBAX occupies all of the spaces in
between the copper particles in the Lewis material.”). Appellant takes the
position that air or voids do exist between copper particles (and thus, a lower
density value should be used). See Reply Br. 8 (stating that the Examiner’s
“calculations impermissibly ignore the fact that there are still spaces
between the copper particles in the mixture disclosed in Lewis” and that
“the Examiner is inexplicably discounting the void fraction in his calculation
of the volume occupied by the copper particles in Lewis”); id. at 5 (asserting
that “the Examiner has provided no support whatsoever for the assertion that
evaporating off all of the solvent would leave no air or voids in the
remaining mixture” and that “[n]othing in the Appeal Brief, the disclosure of
Lewis, or any other evidence of record suggests that evaporation of all the
solvent would result in a mixture which is completely free of air voids or
bubbles after the solvent has been evaporated”).
A prima facie case of inherency requires a basis in fact and/or
technical reasoning to reasonably support a determination that the allegedly
7
Appeal 2016-002768
Application 13/552,238
inherent characteristic necessarily flows from the teachings of the applied
prior art. Ex parte Whalen, 89 USPQ2d 1078, 1084 (BPAI 2008)
(precedential). For the Examiner’s reasons as set forth above, we determine
that the Examiner’s explanation supports a prima facie case that essentially
no air or voids exist between copper particles in the hypothetical 100 g
sample of the relied-upon material disclosed in Lewis. Appellant has not
shown error in that finding.
Thus, we are not apprised of error in the Rejection based on the
Examiner’s use of 8.94 g/cc (i.e., the density of solid copper) rather than
Appellant’s 5.2 g/cc to calculate the given volume of “material” in the
construction of the density limitation. See Ans. 9 (stating that “Appellant
seems to think that the bulk density of copper in the PEBAX matrix must be
determined using the bulk density of copper as it would sit by itself, with air
in between the individual particles”). Moreover, we are not apprised of error
in the finding that, based on the Examiner’s calculations, the relied-upon
material disclosed in Lewis satisfies the density limitation.
B. The Particle Diameter Limitations
Claim 1 recites, among other limitations, (1) “the particles having a
diameter of 70 micro-met[er]s or less” and (2) “wherein 20 to 30 wt % of the
particles have a diameter of 10 micro-met[er]s.”5 Appeal Br. 13 (Claims
App.). In the Rejection, the Examiner stated that Lewis does not explicitly
disclose these limitations. Final Act. 2—3. The Examiner did, however, note
“that Lewis clearly discloses that the high-loading of copper particles within
the PEBAX matrix (e.g., 97.5% copper particles) may be achieved using
5 We will refer to these limitations collectively as the “particle
diameter limitations.”
8
Appeal 2016-002768
Application 13/552,238
only copper powder (i.e., without any copper flake; [Lewis] lines 9-15)” and
stated that “Lewis discloses that a suitable blend of particle sizes must be
selected in order to achieve such a high-loading of copper particles within
the PEBAX matrix (lines 9—20).” Id. at 3. The Examiner also stated that “a
person of ordinary skill in the art would be well aware of the Kepler
Conjecture, which states that highest packing density that may be achieved
by packing equally sized spheres in a three-dimensional volume of space is
about 74%” and that, therefore, “a person of ordinary skill in the art would at
once recognize that a blend of differently sized particles of spherical
atomized copper powder would be necessary in order to achieve the high-
loadings of copper powder disclosed by Lewis (i.e., unequal sphere packing
would inherently be required).” Id. at 4. According to the Examiner, “the
mathematics (associated with unequal sphere packing) required to determine
the blend of diameters of spherical copper powder, necessary to achieve said
high-loadings of copper powder, is within the knowledge-base of those
having ordinary skill in the art.” Id. The Examiner found that “Lewis
supports and implies this assertion, by stating that a suitable blend of particle
sizes must be used to achieve the high-loading of copper powder disclosed
(thus, requiring a person of ordinary skill in the art to determine said blend
of particle sizes).” Id. According to the Examiner,
it would have been obvious to a person of ordinary skill in the art
to utilize copper powder particles having a diameter of 70 micro­
meters or less, since it has been held that where the general
conditions of a claim are disclosed in the prior art, discovering
the optimum or workable ranges involves only routine skill in the
art, and/or since it has been held that discovering an optimum
value of a result effective variable involves only routine skill in
the art. Further, it would have been obvious to a person of
ordinary skill in the art to utilize 20 to 30 wt % of copper powder
9
Appeal 2016-002768
Application 13/552,238
particles having a diameter of 10 micro-meters or less, since it
has been held that where the general conditions of a claim are
disclosed in the prior art, discovering the optimum or workable
ranges involves only routine skill in the art, and/or since it has
been held that discovering an optimum value of a result effective
variable involves only routine skill in the art.
Id. at 4—5.
First, Appellant argues that “the Examiner has failed to establish that
Lewis discloses” the particle diameter limitations. Appeal Br. 9; see id. at
10 (“Lewis simply does not disclose or suggest a material in which ‘20 to 30
wt % of the particles have a diameter of 10 micro-metres,’ . . . much less one
in which the particles have ‘a diameter of 70 micro-metres or less’ . . . .”).
This argument does not address the rejection as articulated; the
Examiner acknowledges that Lewis does not explicitly teach the particle
diameter limitations. See Final Act. 2—3.
Second, Appellant argues that “Lewis says nothing about the ultimate
volume or packing density of its mixture” and that “[a]ll that Lewis discloses
in this regard is that copper flake (particle size 200 — 20 g) can be combined
with copper powder (particle size 200 — 20 p) to achieve a ‘very high
loading.’” Appeal Br. 10 (citing Lewis 1,11. 19—25). Appellant argues that
“Lewis mentions nothing whatsoever about particles smaller than 20 p” and
that “[t]he Examiner’s conclusions regarding the ‘packing density that would
be required’ in Lewis are simply unsupported by fact or logic.” Id. (quoting
Final Act. 13 (“Further, the limit that the Kepler Conjecture places on said
packing density is substantially lower than the packing density that would be
required to pack spherical atomized copper particles in a PEBAX matrix
such that resultant material is 97.5% by weight copper particles as disclosed
by Lewis.”)). Thus, according to Appellant, “the Examiner’s conclusions
10
Appeal 2016-002768
Application 13/552,238
which flow from this incorrect understanding of Lewis (e.g., that one of skill
in the art ‘would be capable of performing the necessary math to determine a
suitable blend of particle sizes’ and ‘would at once recognize the need to do
so upon reading the disclosure of Lewis’) are also unsupported by fact or
logic.” Appeal Br. 10.
This argument does not apprise us of error because the Examiner does
not rely on Lewis as disclosing either the “ultimate volume or packing
density of its mixture” (Appeal Br. 10) or as disclosing “wherein 20 to 30
wt % of the particles have a diameter of 10 micro-met[er]s,” as required by
one of the particle diameter limitations. See Final Act. 2—3 (stating that
“Lewis discloses the claimed invention, except for wherein ... (3) 20 to 30
wt % of the particles have a diameter of 10 micro-meters of less”). Further,
Appellant has not persuasively shown that the Examiner relied on an
“incorrect understanding of Fewis.” Appeal Br. 10.
Moreover, even assuming that the Examiner did rely on an “incorrect
understanding of Fewis” as to the aspects raised, Appellant has not shown
how such an incorrect understanding undermines or shows error in the
statements by the Examiner quoted in part by Appellant: (1) “Further, the
limit that the Kepler Conjecture places on said packing density is
substantially lower than the packing density that would be required to pack
spherical atomized copper particles in a PEBAX matrix such that resultant
material is 97.5% by weight copper particles as disclosed by Fewis.” (Final
Act. 13 (emphasis added)); (2) “Further, the examiner asserts that those of
ordinary skill in the art would be capable of performing the necessary math
to determine a suitable blend of particle sizes (e.g., a mathematical analysis
for unequal sphere packing).” (Final Act. 14 (emphasis added)); and (3) “A
11
Appeal 2016-002768
Application 13/552,238
person of ordinary skill in the art would likewise be capable of performing
the necessary math to determine a suitable blend of particle sizes and
proportions of sizes or ranges of sizes, and would at once recognize the need
to do so upon reading the disclosure of Lewis.''’ (Final Act. 14—15 (emphasis
added)). The identified statements relate more to the knowledge and
understanding of one of ordinary skill in the art than to the aspects of Lewis
raised by Appellant.
Third, Appellant argues that “the Examiner has not identified or
described the ‘necessary math’ to determine a ‘suitable blend of particle
sizes.’” Appeal Br. 10 (quoting Final Act. 14 (“Further, the examiner asserts
that those of ordinary skill in the art would be capable of performing the
necessary math to determine a suitable blend of particle sizes (e.g., a
mathematical analysis for unequal sphere packing).”)). Appellant argues
that “[e]ven if there were a motivation in the art to combine specific
proportions of specifically sized particles to achieve a specific packing
density, there are billions of possible combinations to choose from.” Appeal
Br. 10. According to Appellant, “[wjithout any reasonable explanation of
how one of skill in the art would arrive at the claimed combination of
particle sizes to achieve the claimed packing density, the Examiner has
failed to establish prima facie obviousness of the claimed combination.” Id.
We are not apprised of error based on this argument. To proceed from
the understood need for unequal sized spheres to form the relied-upon
material in Lewis (see Final Act. 3 4) to the specific requirements in the
particle diameter limitations, the Examiner states that it would have been
obvious to arrive at the claimed values while discovering the optimum or
workable ranges of result-effective variables. See Final Act. 4—5; see also In
12
Appeal 2016-002768
Application 13/552,238
re Aller, 220 F.2d 454, 456 (CCPA 1955) (“[WJhere the general conditions
of a claim are disclosed in the prior art, it is not inventive to discover the
optimum or workable ranges by routine experimentation.”).
Specifically, the Examiner finds that “the diameters of the spherical
particles and the weight percentages of spherical particles having specific
diameters constitute result effective variables, with the result being the
packing density of said spherical particles in the material” and that
“[cjhoosing certain spherical particle diameters, and certain weight
percentages of spherical particles having specific diameters, would directly
determine the possible packing density of the spherical particles within the
material.” Ans. 11; see Final Act. 4 (stating that “Lewis supports and
implies this assertion, by stating that a suitable blend of particle sizes must
be used to achieve the high-loading of copper powder disclosed (thus,
requiring a person of ordinary skill in the art to determine said blend of
particle sizes)”); Lewis 1,11. 18—20 (“The metal flake is added in order to
take up voids in the atomised powder to achieve as high a bulk loading as
possible. From this it would be possible to obtain a very high loading using
a suitable blend of particle sizes in order to reach the highest practical
density of loading.”); see also In re Applied Materials, Inc., 692 F.3d 1289,
1297 (Fed. Cir. 2012) (“A recognition in the prior art that a property is
affected by the variable is sufficient to find the variable result-effective.”).
Appellant does not address and has not shown error in these findings
regarding result-effective variables. Appeal Br. 9-11; Reply Br. 10-11.
Appellant has also not demonstrated error in the Examiner’s
determination that discovering workable ranges of the identified result-
effective variables would be within the level of ordinary skill in the art. See
13
Appeal 2016-002768
Application 13/552,238
Final Act. 4; Ans. 11 (stating that “the mathematics associated with unequal
sphere packing, i.e., geometry, which are required to determine a blend of
diameters of spherical particles necessary to achieve the packing density of
the Lewis material (about 81 %), are within the knowledge-base of those
having ordinary skill in the art”).
We turn now to the potential criticality of the specific values in the
particle diameter limitations. The Examiner states that “the claimed particle
diameters, and ranges of weight percentages of particles having specific
diameters, are not disclosed as being critical to the claimed invention.” Ans.
10. Appellant does not assert criticality of the claimed values, but rather
replies that “‘criticality’ of a claimed feature is not a criterion for evaluating
obviousness.” Reply Br. 10.6 Thus, Appellant has not shown criticality of
the specific values in the particle diameter limitations.
For the reasons above, we sustain the rejection of independent claim
1. Claims 2, 4, 6,1,9, 11, 19, 22, 23, 25—28, and 34 fall with claim 1.
Rejection 2 — Claims 14, 29, and 30
A. Claims 14 and 30
For independent claim 30 (and for claim 14, which depends from
claim 30), Appellant relies on the same arguments discussed above with
6 In the context of a rejection based on discovering the optimum or
workable ranges of a result-effective variable, the criticality of a claimed
range can be relevant to patentability. See, e.g., Applied Materials, 692
F.3d at 1297 (“The outcome of optimizing a result-effective variable may
still be patentable if the claimed ranges are critical and produce a new and
unexpected result which is different in kind and not merely in degree from
the results of the prior art.” (internal quotation marks omitted)).
14
Appeal 2016-002768
Application 13/552,238
regard to claim 1. Compare Appeal Br. 11—12, with id. at 5—11. Thus, for
the reasons discussed above, we sustain the rejection of claims 14, and 30.
B. Claim 29
Appellant does not separately argue claim 29, which depends from
claim 19. See Appeal Br. 5—11. Thus, for the reasons discussed above, we
sustain the rejection of claim 29.
Rejection 3 — Claims 31, 32, 35—37, and 39
Appellant does not separately argue (1) claims 31, 32, 35, and 36,
which depend from claim 1, (2) claim 37, which depends from claim 19, or
(3) claim 39, which depends from claim 34. See Appeal Br. 5—11. Thus, for
the reasons discussed above, we sustain the rejection of claims 31, 32, 35—
37, and 39.
Rejection 4—Claim 38
Appellant does not separately argue claim 38 (Appeal Br. 11—12),
which depends from claim 30. Thus, for the reasons discussed above, we
sustain the rejection of claim 38.
DECISION
We affirm the decision to reject claims 1, 2, 4, 6, 7, 9, 11, 14, 19, 22,
23, 25-32, and 3A-39 under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
15