Ex Parte Woo et al

Patent Trial and Appeal Board

Oct 20, 2016

11689620 (P.T.A.B. Oct. 20, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/689,620 03/22/2007
23589 7590 10/24/2016
Hovey Williams LLP
10801 Mastin Blvd., Suite 1000
Overland Park, KS 66210
FIRST NAMED INVENTOR
Kyungsoo Woo
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.
37988 2236
EXAMINER
MUKHOPADHYAY,BHASKAR
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
10/24/2016 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):
patents@hoveywilliams.com
amalik@hoveywilliams.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KYUNGSOO WOO, SUKH BASSI,
CLODUALDO C. MANINGAT, LIANFU ZHAO,
YING HONG ZHENG, LI NIE, MICHAEL PARKER,
SHISHIR RANJAN, JENNIFER GAUL, CHRISTOPHER T. DORL,
and GREGORY J. STEMPIEN
Appeal2015-004032
Application 11/689,620
Technology Center 1700
Before KAREN M. HASTINGS, CHRISTOPHER C. KENNEDY, and
MICHAEL G. McMANUS, Administrative Patent Judges.
McMANUS, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner finally rejected claims 1, 3-11, 15, 18-19, 22-34, and
52---65 of Application 11/689,620 under 35 U.S.C. § 103(a) as obvious.
Final Act. (May 19, 2014). Appellants 1 seek reversal of these rejections
pursuant to 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6.
For the reasons set forth below, we AFFIRM.
1 MGP Ingredients, Inc. is identified as the real party in interest. Appeal
Br. 1.
Appeal2015-004032
Application 11/689,620
The application at issue describes a digestion resistant starch-
hydrocolloid blend. The product at issue is prepared by mixing quantities of
resistant starch and hydrocolloid in water and optional heating, followed by
drying. Foods containing the interacted starch products are also disclosed.
Claim 1 is representative of the pending claims and is reproduced
below:
1. A starch product comprising a RS4 chemically modified
resistant starch, and at least one hydrocolloid interacted with said
starch, said interaction comprising mixing together respective
quantities of RS4 resistant starch granules and hydrocolloid in
water with the amount of water being greater than the amount of
RS4 resistant starch in the mixture, reacting the mixture for a
period of from about 5 minutes to 2 hours, and then drying the
starch granules, said RS4 starch product having at least about
40% resistance to a-amylase digestion, said RS4 starch product
comprising individual starch granules with a coating of said
hydrocolloid on the surfaces of the granules, said RS4 starch
product being dried and being in the form of individual, discrete,
and separate hydrocolloid-interacted starch granules.
Appeal Br. 30 (Claims App.).
REJECTIONS
On appeal, the Examiner maintains the following rejections:
1. Claims 1, 3---6, 8, 10, 11, 22, 23, 28-30, 55-57, 63 and 65 are
rejected under 35 U.S.C. § 103(a) as obvious over Seib et al. (US 6,299,907
Bl; iss. Oct. 9, 2001) ("Seib") in view of Hawkes et al. (US 6,391,352 Bl;
iss. May 21, 2002) ("Hawkes"). Final Act. 4.
2. Claims 18 and 19 are rejected under 35 U.S.C. § 103(a) as
obvious over Seib in view of Hawkes and further in view of Woo et al. (WO
2005/111085 Al; pub. Nov. 24, 2005) ("Woo"). Final Act. 6.
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3. Claims 24--27 and 58 are rejected under 35 U.S.C. § 103(a) as
obvious over Seib in view of Hawkes and further in view of Anfinsen et al.
(US 2005/0118326 Al; pub. Jun. 2, 2005) ("Anfinsen"). Final Act. 7.
4. Claims 31 and 32 are rejected under 35 U.S.C. § 103(a) as
obvious over Seib in view of Hawkes and further in view of Annison et al.
(US 5,840,860; iss. Nov. 24, 1998) ("Annison"). Final Act. 8.
5. Claims 33 and 34 are rejected under 35 U.S.C. § 103(a) as
obvious over Seib in view of Hawkes and Annison and further in view of
Nie et al. (US 2006/0193959 Al; pub. Aug. 31, 2006) ("Nie"). Final Act. 9.
6. Claims 52-54 are rejected under 35 U.S.C. § 103(a) as obvious
over Seib in view of Hawkes and further in view of G.F. Fanta, et al.,
Starch-Hydrocolloid Composites Prepared By Steam Jet Cooking, IO Food
Hydrocolloids, No. 2, 173-178, 1996 ("Fanta"). 2 Final Act. 10.
7. Claims 7 and 9 are rejected under 35 U.S.C. § 103(a) as
obvious over Seib in view of Hawkes and further in view of C. Ferrero et al.,
Effect of Hydrocolloids on Starch Thermal Transitions, as Measured by
DSC," J. Thermal Anal. 47:1247-1266, 1996) ("Ferrero"). Final Act. 12.
8. Claims 59---62 and 64 are rejected under 35 U.S.C. § 103(a) as
obvious over Seib in view of Hawkes and further in view of Anfinsen. Final
Act. 13.
9. Claims 1, 3---6, 8, 10, 11, 22, 23, 28-30, 55-57, 63 and 65 are
rejected under 35 U.S.C. § 103(a) as obvious over Hawkes in view of Seib.
Final Act. 15.
2 Referred to as "NPL 'Starch-Hydrocolloid"' in Final Action.
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10. Claims 18 and 19 are rejected under 35 U.S.C. § 103(a) as
obvious over Hawkes in view of Seib and further in view of Woo. Final
Act. 17.
11. Claims 24--27 and 58 are rejected under 35 U.S.C. § 103(a) as
obvious over Hawkes in view of Seib and further in view of Anfinsen. Final
Act. 18.
12. Claims 31-32 are rejected under 35 U.S.C. § 103(a) as obvious
over Hawkes in view of Seib and further in view Annison. Final Act. 19.
13. Claims 33-34 are rejected under 35 U.S.C. § 103(a) as obvious
over Hawkes in view of Seib and Annison and further in view of Nie. Final
Act. 20.
14. Claims 52-54 are rejected under 35 U.S.C. § 103(a) as obvious
over Hawkes in view of Seib and further in view of Fanta. Final Act. 21.
15. Claims 7 and 9 are rejected under 35 U.S.C. § 103(a) as
obvious over Hawkes in view of Seib and further in view of Ferrero. Final
Act. 23.
16. Claims 59---62 and 64 are rejected under 35 U.S.C. § 103(a) as
obvious over Hawkes in view of Seib and further in view of Anfinsen. Final
Act. 24.
17. Claims 1, 3---6, 8, 10, 11, 15, 22, 23, 28-30, 55-57, 63, and 65
are rejected under 35 U.S.C. § 103(a) as obvious over Hawkes in view of
M.G. Sajilata, et al., Resistant Starch-A Review, Comprehensive Reviews
in Food Science and Food Safety, 5: 1-17, © 2006 Institute of Food
Technologists ("Sajilata"). Final Act. 27.
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18. Claims 18 and 19 are rejected under 35 U.S.C. § 103(a) as
obvious over Hawkes in view of Sajilata and further in view of Woo. Final
Act. 30.
19. Claims 24--27 and 58 are rejected under 35 U.S.C. § 103(a) as
obvious over Hawkes in view of Sajilata and further in view of Anfinsen.
Final Act. 31.
20. Claims 31-32 are rejected under 35 U.S.C. § 103(a) as obvious
over Hawkes in view of Sajilata and further in view of Annison. Final Act.
32.
21. Claims 33-34 are rejected under 35 U.S.C. § 103(a) as obvious
over Hawkes in view of Sajilata and further in view of Annison and Nie.
Final Act. 33.
22. Claims 52-54 are rejected under 35 U.S.C. § 103(a) as obvious
over Hawkes in view of Sajilata and further in view of Fanta. Final Act. 34.
23. Claims 7 and 9 are rejected under 35 U.S.C. § 103(a) as
obvious over Hawkes in view of Sajilata and further in view of Ferrero.
Final Act. 36.
24. Claims 59---62 and 64 are rejected under 35 U.S.C. § 103(a) as
obvious over Hawkes in view of Sajilata and further in view of Anfinsen.
Final Act. 37.
25. Claims 1, 3---6, 8, 10, 11, 13, 15, 22, 23, 28-30, 55-57, 63 and
65 are rejected under 35 U.S.C. § 103(a) as obvious over Sajilata in view of
Hawkes. Final Act. 39.
26. Claims 18 and 19 are rejected under 35 U.S.C. § 103(a) as
obvious over Sajilata in view of Hawkes and further in view of Woo. Final
Act. 42.
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27. Claims 24--27 and 58 are rejected under 35 U.S.C. § 103(a) as
obvious over Sajilata in view of Hawkes and further in view of Anfinsen.
Final Act. 44.
28. Claims 31and32 are rejected under 35 U.S.C. § 103(a) as
obvious over Sajilata in view of Hawkes and further in view of Annison.
Final Act. 44--45.
29. Claims 33 and 34 are rejected under 35 U.S.C. § 103(a) as
obvious over Sajilata in view of Hawkes and further in view of Annison and
Nie. Final Act. 45--46.
30. Claims 52-54 are rejected under 35 U.S.C. § 103(a) as obvious
over Sajilata in view of Hawkes and further in view of Fanta. Final Act. 46-
47.
31. Claims 7 and 9 are rejected under 35 U.S.C. § 103(a) as
obvious over Sajilata in view of Hawkes and further in view of Ferrero.
Final Act. 48.
32. Claims 59---62 are rejected under 35 U.S.C. § 103(a) as obvious
over Sajilata in view of Hawkes and further in view of Anfinsen. Final Act.
49.
DISCUSSION
Appellants argue that the Final Rejection is in error on several
grounds. First, Appellants assert that the Hawkes reference (relied upon in
all of the rejections) does not disclose a hydrocolloid-interacted starch
product in the form of discrete starch granules because Hawkes teaches an
extrusion process that destroys the granular structure. Appeal Br. 18-20.
Second, Appellants allege that Seib does not teach any starch-hydrocolloid
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interaction nor does it teach the requisite degree of amylase digestion
resistance (relied upon in Rejections 1-16). Id. at 21. Third, Appellants
contend that there is no rejection that specifically addresses claim limitations
relating to the duration of the reaction and that Rejections 1-32 are,
therefore, insufficient insofar as they pertain to claims 1-64. Id. at 21-22.
Fourth, Appellants aver that Sajilata fails to teach the desirability of the RS4
starch over other digestion-resistant starches (Rejections 18-32). Id. at 23-
24. Fifth, Appellants indicate that Anfinsen teaches away from the use of
RS4 starches while all pending claims require the use of such starch
(Rejections 1-32). Id. at 25. Sixth, the Appellants argue that Woo is not
properly combinable with the primary references because it is not analogous
art (Rejections 2, 10, 18, and 26). Id. at 25-26. Finally, Appellants contend
that there is no proper teaching, suggestion or motivation to combine the
cited references (Rejections 1-32). Id. at 26-29.
The Hawkes Extrusion Process (Rejections 1-32)
Appellants first contend that Hawkes does not disclose a
hydrocolloid-interacted starch granule as it teaches a process that destroys
the granular structure. All claims at issue require an "RS4 starch product
being dried and being in the form of individual, discrete, and separate
hydrocolloid-interacted starch granules." Id. at 30, 33-34 (Claims App.).
Appellants describe Hawkes as "a high-temperature, short-residence time
extrusion process ... which yields amorphous puffed melt products." Id. at
18 (citing Hawkes, 5:64---67). Further, Appellants have submitted an
Amendment After Final Rejection (entered by the Examiner) that included
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two articles - Colonna et al. 3 and Moscicki et al. 4 Appellants assert that
these two articles "conclusively demonstrated that starch extrusion in the
manner of Hawkes et al. destroys the starting starch granule structure."
Appeal Br. 19. Specifically, Appellants allege that the articles describe a
method employing the same process steps as Hawkes and noted that the
Colonna reference states that "[ f]or every sample, the granular shape
completely disappears. Starch becomes a continuous phase in which
enclosed air bubbles occupy a large part of the volume." Colonna at 540.
In response, the Examiner finds that the conditions described in the
articles differ from those of Hawkes: "it is to be noted that the conditions of
extrusion disclosed by these references are different compared to Hawkes."
Answer 64. Further, the Examiner finds that "Hawkes has disclosed the
granular shape starch is hydrocolloid coated by this extrusion method
(claims 1, 24)" and that Hawkes teaches that there is no chemical
modification of the starch or hydrocolloid. Id. at 64---65.
Claim 24 of Hawkes claims a starch and hydrocolloid composition as
follows:
24. A starch/gum based ingredient for use in food products
and comprising a high amylase starch granules, water, and a
hydrocolloid selected from the group consisting of xanthan gum,
guar gum, locust bean gum and mixtures thereof co-processed in
an extruder at a temperature of at least about 100° C., and a water
3 P. Colonna, et al., Extrusion Cooking and Drum Drying of Wheat Starch,
Cereal Chemistry 61(6): 538-543, American Association of Cereal
Chemists, Inc., 1984 ("Colonna").
4 L. Moscicki, et al., Extrusion Cooking of Starch, Advances in
Agrophysical Research, Ch. 13:319-346, © 2013 Moscicki et al.
("Moscicki").
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content of 16.7% to about 33.3%, causing a physical
interaction between the hydrocolloid and amylase from the
starch to coat the remaining portion of the starch granules
with the hydrocolloid.
Hawkes, 19:39--20:6 (emphasis added). The Examiner further finds that
Hawkes teaches the reduction of the extrudate to a powder form that is
equivalent to the granules of the pending claims or which may be
agglomerated to form granules. Answer 61-62.
The Specification teaches that the starch/hydrocolloid composition of
the application at issue should be heated as follows:
the reaction mixture may be heated to a temperature from about
50-lOOQC during at least a part of the mixing step. Furthermore,
the desired interaction between the resistant starch and
hydrocolloid can be augmented by a subsequent, more intensive
heat treatment, e.g., 110-150Q C for 1-5 hours, more preferably
about 120-140Q C for 3 hours.
Spec. 7. This is comparable to, and in some cases greater than, the heating
taught by Hawkes. See. e.g., Hawkes, Table II (providing that the
composition of Example III is heated to a maximum temperature of 108-
113Q C). Hawkes specifically teaches that the composition may be
"uncooked" "from a gelatinization point of view":
The large array of processing variables and the ranges for each
parameter make extrusion co-processed starch/gum based
materials quite versatile in final product functionality. By
adjusting extrusion conditions, the co-processed starch/gum
based ingredient may be uncooked, partially cooked or totally
cooked as categorized from a gelatinization point of view. In
the case with this co-processed starch/gum based ingredient
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through the interaction of these two components, both the
degree of gelatinization and viscosity of the finished material
can be controlled.
Hawkes, 8:38--47.
Appellants do not set forth a definition of granule apart from an
assertion that "those skilled in the art understand that starch granules are
discrete and roundish in shape." Reply Br. 5. Appellants assert that Hawkes
"starts with starch granules, but ends up with an amorphous puffed melt
which is subsequently pulverized to a powder." Id. Appellants do not,
however, offer any explanation as to how the powder of Hawkes differs
from the granules of the pending claims.
Given the absence of argument as to what a granule is and how it
differs from a powder, the apparent overlap in processing temperature
between Hawkes and the present Application, as well as Hawkes' explicit
disclosure of coated "starch granules," a preponderance of the evidence
supports the Examiner's position that the claimed granules encompass the
product taught by Hawkes. Appellants have failed to demonstrate error. See
Ex Parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010).
The Seib Reference (Rejections 1-16)
Appellants further assert that Seib does not describe any starch-
hydrocolloid interaction and does not teach the required degree of a-amylase
digestion resistance. Appeal Br. 21. The first point, the absence of a
teaching regarding starch-hydrocolloid interaction, is conceded. The Final
Rejection provides that Seib "do[ es] not teach about (a) 'starch granules with
a coating ofhydrocolloid on the surface of granules."' Final Act. 5. The
Examiner, however, relies upon Hawkes as teaching such interaction, not
Seib. Answer 62 ("The deficiency of Seib et al. in relation to hydrocolloid
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coated starch is met by Hawkes et al."). With regard to the degree of a-
amylase digestion resistance, the Final Rejection further finds that Seib
teaches that "[i]n terms of a-amylase digestion, the starches hereof should
have at least about 3% resistance ... and more preferably at least about 10%
resistance." Final Act. 4; see also Seib, 3:1--4. This is arguably less than the
degree of resistance required by the claims for the starch-hydrocolloid
product (the "at least 10%" of Seib refers just to the starch product; it may
be inherent that such starch exhibits greater resistance upon coating with
hydrocolloid). The Examiner, however, has made uncontested findings that
Sajilata teaches a starch product "having at least about 40% resistance to a-
amylase digestion." Final Act. 28.
Accordingly, Appellants fail to show error in this regard. See In re
Keller, 642 F.2d 413, 426 (CCPA 1981) ("[O]ne cannot show non-
obviousness by attacking references individually where, as here, the
rejections are based on combinations of references.").
Reaction Time (Rejections 1-32)
As a third basis of appeal, Appellants argue that the Examiner fails to
make a finding regarding the claim limitation requiring reacting the mixture
for a certain duration. Appeal Br. 21-23. The limitation at issue provides as
follows:
said interaction comprising mixing together respective quantities
of RS4 resistant starch granules and hydrocolloid in water with
the amount of water being greater than the amount of RS4
resistant starch in the mixture, reacting the mixture for a period
of from about 5 minutes to 2 hours, and then drying the starch
granules
Id. at 30 (Claims App.). The Examiner determines this to be a product-by-
process limitation. Answer 62. As a consequence, the Examiner did not
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look to this limitation in determining whether the claims are obvious. See In
re Thorpe, 777 F.2d 695, 697 (Fed.Cir.1985) ("If the product in a product-
by-process claim is the same as or obvious from a product of the prior art,
the claim is unpatentable even though the prior product was made by a
different process."); see also Purdue Pharma L.P. v. Epic Pharma, LLC, 811
F.3d 1345, 1354 (Fed. Cir. 2016) ("because 'derived from 8a[ ]' is a process
limitation, the district court did not err in disregarding the limitation in its
obviousness analysis."). We find no error in the Examiner's determination.
The Sajilata Reference (Rejections 18-32)
Appellants further contend that Sajilata does not supply a reason to
combine RS4 starches with the teachings of the other references. Appeal Br.
23-24. Rather, Appellants assert that Sajilata describes a variety of resistant
starches but would not have led a skilled artisan to select RS4 starches as
opposed to RS2 or RS3 starches. Id. In response the Examiner notes
precedent indicating "[ t ]he selection of a known material based on its
suitability for its intended use supports a prima facie obviousness
determination." Answer 65. Additionally, the Board notes Supreme Court
precedent that "the simple substitution of one known element for another"
renders a claim obvious. KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 417
(2007).
The Examiner need only show that RS4 starches are one desirable
option, not necessarily the most desirable option. "[T]he question is whether
there is something in the prior art as a whole to suggest the desirability, and
thus the obviousness, of making the combination, not whether there is
something in the prior art as a whole to suggest that the combination is the
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most desirable combination available." In re Fulton, 391 F.3d 1195, 1200
(Fed. Cir. 2004) (citation omitted).
Accordingly, the Board finds no error in the combination of Sajilata
with the teachings of the other cited references.
The Anfinsen Reference (Rejections 1-32)
Appellants briefly argue that Anfinsen teaches away from the use of
RS4 starches. Although Anfinsen is not relied upon in every rejection, every
rejection relies upon the combination of an RS4 starch with a hydrocolloid,
accordingly, the present argument is applicable to each rejection.
"The prior art's mere disclosure of more than one alternative does not
constitute a teaching away from any of these alternatives because such
disclosure does not criticize, discredit, or otherwise discourage the solution
claimed in the '198 application." Fulton, 391 F.3d at 1201. The cited
portion of Anfinsen provides as follows:
RS2 starches involve starch granules that are resistant until
they are gelatinized (starch granules hydrate and rupture). RS3
relates to the retro gradation or reassociation of starch polymer
after gelatinization. RS4 are chemically modified starches that
are resistant. Based on the above classification digestible
carbohydrates of the invention would be considered to be RS 1
starches in that they are entrapped in the hydrocolloid film and
the viscosified gastrointestinal content, which protects them
from attack by digestive enzymes.
Anfinsen i-f 174. This passage merely classifies the invention of the
Anfinsen patent as an RS 1 starch. It does not teach away from the use of
RS4 starches. Accordingly, the Board finds no error in the Examiner's
findings regarding teachings in the prior art relating to RS4 starches.
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The Woo Reference (Rejections 2, 10, 18, and 26)
Appellants additionally contend that Woo is not properly combinable
with the primary references because it is not analogous art. 5 Appeal Br. 25-
26. Appellants assert that "Woo et al. has nothing whatsoever to do with the
hydrocolloid-interacted starch granules of the invention" and is applicable
only to cross-linked starch products with certain specific properties. Id. at
26.
"Although§ 103 does not, by its terms, define the 'art to which [the]
subject matter [sought to be patented] pertains,' this determination is
frequently couched in terms of whether the art is analogous or not, i.e.,
whether the art is 'too remote to be treated as prior art."' In re Clay, 966
F.2d 656, 658 (Fed. Cir. 1992). "Two criteria have evolved for determining
whether prior art is analogous: (1) whether the art is from the same field of
endeavor, regardless of the problem addressed, and (2) if the reference is not
within the field of the inventor's endeavor, whether the reference still is
reasonably pertinent to the particular problem with which the inventor is
involved." In re Clay, 966 F.2d at 658-59.
In the "Field of the Invention," Woo states that "[t]he present
invention relates generally to resistant starch products that tend to resist
digestion in the small intestine." Woo i-f 1. This is the same field as the
application at issue and is therefore analogous. See, e.g., In re Bigio, 381
F.3d 1320, 1325 (Fed. Cir. 2004) (reference describing a toothbrush found to
5 Appellants also make a general statement that certain other secondary
references are not analogous art, Appeal Br. 25, but present no argument in
support of such argument except with regard to Woo. A brief statement of
this nature is insufficient to state a ground of appeal. 37 CPR 41.37 ( c )(iv).
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be in the same field of endeavor as a claim to a hairbrush based on findings
regarding function and structural similarity).
Prima Facie Case of a Teaching, Suggestion or
Motivation to Combine the References (Rejections 1-32)
Appellants' final argument concerns the asserted lack of a prima facie
case of a teaching, suggestion or motivation to combine any of the cited
references in any of the rejections. Appeal Br. 26-29. Appellants assert that
"the Examiner makes purely rote statements of alleged motivation by
quoting from the secondary references, stating that it would be obvious to
modify the references to achieve the claimed products" in such a way as to
fail the rational underpinning requirement of KSR. Id. at 27. In doing so,
Appellants do not point out any defect of any particular finding regarding
motivation to combine.
Patent Office rules require that an appeal brief include the "arguments
of appellant with respect to each ground of rejection, and the basis therefor,
with citations of the ... parts of the Record relied on. The arguments shall
explain why the examiner erred as to each ground of rejection contested by
appellant." 37 CPR 41.37(c)(iv). Appellants include a lengthy discussion of
case law regarding the combination of prior art references, but no analysis of
any particular finding. This is insufficient to place an issue before the
Board. Cf In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("[I]t has long
been the Board's practice to require an applicant to identify the alleged error
in the examiner's rejections .... ").
CONCLUSION
The rejections of claims 1, 3-11, 15, 18-19, 22-34, and 52---65 of
Application 11/689,620 under 35 U.S.C. § 103(a) as obvious are 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. § 1.136(a).
AFFIRMED
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