Google Inc.

Patent Trials and Appeals Board

Nov 3, 2020

2020000141 (P.T.A.B. Nov. 3, 2020)

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.
14/939,591 11/12/2015 Amit Agarwal 098981-4136 3203
10575 7590 11/03/2020
FOLEY & LARDNER LLP
3000 K STREET N.W.
SUITE 600
WASHINGTON, DC 20007-5109
EXAMINER
ROJAS, HAJIME S
ART UNIT PAPER NUMBER
3681
NOTIFICATION DATE DELIVERY MODE
11/03/2020 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):
ipdocketing@foley.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte AMIT AGARWAL, SUROJIT CHATTERJEE,
GAURAV BHAYA, ANSHUL KOTHARI, and VIBHOR NANAVATI
____________

Appeal 2020-000141
Application 14/939,591
Technology Center 3600
____________

Before EDWARD A. BROWN, LYNNE H. BROWNE, and
BRANDON J. WARNER, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks review under 35 U.S.C. § 134(a) of the Examiner’s
decision rejecting claims 1–20. Appellant’s representative presented oral
argument on October 22, 2020. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Google LLC.
Appeal Br. 2.
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CLAIMED SUBJECT MATTER
Claims 1 and 11 are independent. Claim 1, reproduced below with
reference letters added in brackets, illustrates the claimed subject matter on
appeal.
1. A method of generating push notifications based on
available computing resources, comprising:
[A] periodically receiving, by a push trigger executed by
one or more processors of a data processing system,
independent of a computing device requesting content, data
from the computing device that provides sensor information via
a push content agent executing on the computing device, the
push content agent in communication with the data processing
system;
[B] identifying, by the push trigger via a lookup in a
trigger parameter data structure, a value for a trigger parameter
associated with an account identifier of the computing device;
[C] automatically generating, by the push trigger,
responsive to a comparison of the sensor information with the
value for the trigger parameter and independent of the
computing device requesting content, a request to transmit
content for presentation in a push content slot via the
computing device linked to the account identifier;
[D] establishing, by a content selector executed by the
data processing system responsive to the request generated by
the push trigger, for the account identifier, a push selection
process with a plurality of candidate push content items for the
push content slot of the account identifier;
[E] determining, by the content selector, a selection score
for each candidate push content item of the plurality of
candidate push content items using a likelihood of engagement
of the candidate push content item;
[F] selecting, by the content selector via the push
selection process, a push content item from the plurality of
candidate push content items based on the selection score for
each candidate push content item;
[G] determining, by a delivery control agent executed by
the data processing system, based on the account identifier, a
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parameter used to control delivery of the selected push content
item to the computing device of the account identifier;
[H] comparing, by the delivery control agent, a value of
the determined parameter with a threshold value to authorize
the selected push content item for presentation in the push
content slot via the computing device linked to the account
identifier; and
[I] providing, by the delivery control agent responsive to
authorizing the selected push content item based on the
comparison, via a computer network, the selected push content
item for presentation in the push content slot via the computing
device linked to the account identifier.
Appeal Br. 28–29 (Claims App.).

REJECTIONS ON APPEAL
Claims 1–20 are rejected under 35 U.S.C. § 101 as directed to patent-
ineligible subject matter.
Claims 1–20 are rejected under 35 U.S.C. § 103 as unpatentable over
Agrawal (US 9,117,227 B1, issued Aug. 25, 2015).

ANALYSIS
Eligibility
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
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and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework,
we first determine what concept the claim is “directed to.” See Alice, 573
U.S. at 219.
Concepts that have been determined to be abstract ideas, and thus
patent-ineligible, include certain methods of organizing human activity
(Alice, 573 U.S. at 219–20; Bilski v. Kappos, 561 U.S. 593 (2010));
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted). “A
claim that recites an abstract idea must include ‘additional features’ to
ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
On January 7, 2019, the PTO issued revised guidance on the
application of § 101. See 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (hereinafter “Guidance”). Under Step 2A,
Prong 1, of the Guidance, we first determine whether the claim recites any
judicial exception, including certain groupings of abstract ideas (i.e.,
mathematical concepts, certain methods of organizing human activities, or
mental processes). See id. at 52.
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If a claim recites a judicial exception, we proceed to Step 2A, Prong 2,
of the Guidance and determine whether the claim recites additional elements
that integrate the judicial exception into a practical application. See 84 Fed.
Reg. 52; see also MPEP § 2106.05(a)–(c), (e)–(h).
Only if a claim both recites a judicial exception and fails to integrate
the judicial exception into a practical application, do we proceed to Step 2B
of the Guidance. At Step 2B, we determine whether the claim adds a
specific limitation beyond the judicial exception that is not “well-
understood, routine, conventional” in the field (see MPEP § 2106.05(d)); or
simply appends well-understood, routine, conventional activities previously
known to the industry, specified at a high level of generality, to the judicial
exception. See 84 Fed. Reg. 56.
Claim Grouping
Appellant argues the patent eligibility of claims 1–20 as a group.
Appeal Br. 15–27. We select claim 1 as representative to decide the appeal
as to the rejection. See 37 C.F.R. § 41.37(c)(1)(iv). Claims 2–20 stand or
fall with claim 1
Step 1 – Statutory Category
Claims 1–10 recite “a method of generating push notifications based
on available computing resources,” and claims 11–20 recite “a system to
generating push notifications based on available computing resources.”
Appeal Br. 28–29, 31–32. Thus, claims 1–20 are directed to statutory
classes of subject matter eligible for patenting under 35 U.S.C. § 101.
Step 2A, Prong 1 – Recitation of Judicial Exception
For Prong 1, the Examiner determines that the claims are directed to
the abstract idea grouping of advertising, marketing, or sales activities, and
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providing customized content for a consumer to a user’s device over a
network. Ans. 4. Applying the Guidance, the Examiner determines that the
abstract idea recited in claim 1 includes essentially all claim limitations other
than the use of “a data processing system,” “a computing device,” and “a
computer network” (i.e., computer elements), as recited in steps A–D and
G–I. Id. at 4–5. The Examiner submits, “[c]laims directed towards finding
better user targeted content should be considered an improvement to
advertising, marketing, and sales activities, thus considered a certain method
of organizing human activity that is an abstract idea.” Id. at 6.
Appellant contends that claim 1 is not directed to a judicial exception
(Appeal Br. 13) because the claims do not contain any elements that can be
classified as one of the enumerated groupings, that is, mathematical
concepts, certain methods of organizing human behavior (“because none of
the elements relate to fundamental economic concepts”), or mental processes
(id. at 14–15).
Appellant’s contentions are unpersuasive. The Examiner has
determined that the abstract idea in claim 1 includes essentially all
limitations except for those reciting a computer element. The Examiner’s
position is that the abstract idea falls within the “certain methods of
organizing human activity” grouping of abstract ideas enumerated in the
Guidance. More specifically, the Examiner determines that the method
recites subject matter relating to the abstract idea sub-grouping of
“commercial or legal interactions” in the form of “advertising, marketing or
sales activities or behaviors.” See 84 Fed. Reg. 52.

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Appellant’s Specification describes:
Examples of push content items can include electronic mail
(“e-mail”), text messages, simple messaging service (“SMS”)
messages, notifications, alerts, prompts, chat messages, etc.
For example, the data processing system 120 automatically
generate a request to provide an advertisement via an e-mail to
an e-mail address corresponding to an account identifier.
See Spec. 12, 15–19 (emphasis added). Accordingly, the Specification
discloses advertisements as an exemplary type of “push content item.”
Regarding the identified sub-grouping, the Examiner focuses on the
claims pertaining to advertising and targeted content. See Ans. 5
(“advertisement and contact placement”), 6 (“user targeted content”), 7
(“better user targeted advertisement”), 8 (“selecting targeted content”). As
for “marketing or sales activities or behaviors,” the Examiner refers to “the
claims being directed to a sales and marketing behavior.” Id. at 9. The
Examiner determines that the claim elements recite an abstract idea because
the claim elements are similar to “displaying an advertisement in exchange
for access to copyrighted media,” which has been found to be an abstract
idea. Ans. 7. In support, the Examiner cites Ultramercial, Inc. v. Hulu,
LLC, 772 F.3d 709 (Fed. Cir. 2014), in which the court considered the patent
eligibility of subject matter where the commercial or legal interaction
involved providing “sponsor messages” (advertising) from a content
provider to a consumer. The court determined that the claims were directed
to an abstract idea, namely, “a method of using advertising as an exchange
or currency.” Ultramercial, 772 F.3d at 715.
Appellant’s position is that the claims do not recite any elements that
can be classified as “certain methods of organizing human behavior,”
“because none of the elements relate to fundamental economic concepts.”
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However, the Examiner does not identify the “fundamental economic
concepts” sub-grouping, but rather, the “advertising, marketing or sales
activities or behaviors” sub-grouping. Hence, Appellant’s contentions are
unpersuasive because they do not address the Examiner’s position.
Step 2A, Prong 2 – Practical Application of Judicial Exception
We next determine whether claim 1, as a whole, integrates the recited
judicial exception into a practical application by: (a) identifying whether
there are any additional elements recited in the claim beyond the judicial
exception; and (b) evaluating those additional elements individually and in
combination to determine whether they integrate the exception into a
practical application. See 84 Fed. Reg. 54–55. In the context of Prong 2, an
exemplary consideration indicative of an additional element (or combination
of elements) that may integrate the exception into a practical application is
an additional element that reflects an improvement in the functioning of a
computer, or an improvement to other technology or technical field. See id.
at 55.
The Examiner determines that claim 1 does not recite any additional
elements sufficient to amount to significantly more than the judicial
exception; rather, “the additional computer elements, recited at a high level
of generality, provide conventional computer functions that do not add
meaningful limits to practicing the abstract idea.” Final Act. 3.
In contrast, Appellant contends that the claims are directed to an
improvement to the functioning of the computer itself. Appeal Br. 15.
Appellant identifies the following technical problem:
Sending push content items to a mobile computing device can
drain the mobile computing device’s battery, utilize the mobile
computing device’s limited processing resources (e.g.,
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processor or memory), occupy limited screen space on an
electronic display, utilize limited network bandwidth or limited
network data allocation.
Id. at 4 (citing Spec. 1, l. 17– 2, l. 24), see also id. at 17 (citing Spec. 6).
Appellant asserts, “to address the above technical problem, the instant
claims are directed to improving the generation of push notifications by
reducing the amount of computing or energy resource utilization.” Id. at 15.
Appellant explains that the data processing system uses a delivery control
agent to determine a parameter to control delivery of the selected push
content item to the computing device. Id. at 15–16 (citing Spec. 6–8).
Appellant asserts, “the claimed solution can conserve a device’s battery,
computing resources, screen space, network data usage, or bandwidth by not
sending indiscriminate push notifications or push content items.” Id. at 16
(citing Spec. 2) (emphasis added). Therefore, Appellant contends, the
claims are directed to a practical application. Id.
Appellant contends that the “Enfish Memo” affirms the patent
eligibility of the claims, in that an improvement in existing computer
technology is not required to be defined by reference to “physical
components,” but can be defined by “logical structures and processes.”
Appeal Br. 16–17 (citing Enfish Memo 2). Appellant contends that the
claims are focused “on an improvement to the computer itself, not on
economic or other tasks for which a computer is used in its ordinary
capacity” (id. at 17 (emphasis omitted)), and are directed to a “specific
implementation of a solution to a problem in the software arts” (id. (citing
Enfish Memo 2)).
Appellant further contends that the “McRO Memo” affirms the patent
eligibility of the claims. Appeal Br. 18. Appellant asserts, the claims
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“recite a particular way to achieve a desired outcome defined by the
claimed invention. In particular, the claims . . . recite a particular set of rules
that allow a computing system to generate push notifications to optimize
use of available computing resources.” Id. at 19. Appellant contends that
the claims are directed to “a technological advancement allowing computer
performance of a function not previously performable by a computer.” Id. at
20.
In response, the Examiner maintains that the judicial exception is not
integrated into a practical application because the additional claim elements
are recited at a high-level of generality, amounting to no more than mere
instructions to apply the judicial exception using generic computer
components (Ans. 6) and generally linking the use of the judicial exception
to a particular environment or field of use (id. at 7).
The Examiner also determines that “[c]laims directed towards finding
a better user targeted advertisement should be considered an improvement to
advertising, marketing, and sales activities, not an improvement to the
functioning of the computer itself.” Ans. 7. As to McRO, the Examiner
submits that the court “noted that the claims did not simply disclose an
automated task previously performed by human, but instead recited a new
computerized process that was not previously used by animators.” Id. at 8.
In contrast, the Examiner submits, “it is clear that the [present] claims are
merely drawn to a method of selecting targeted content that is performed via
generic computer technology.” Id.
Appellant’s position that the data processing system uses a delivery
control agent to determine a parameter to control delivery of the selected
push content item to the computing device (Appeal Br. 15–16), and using
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the delivery control agent provides a solution to the technical problem “by
not sending indiscriminate push notifications or push content items” (id. at
16) is unpersuasive. As for the function of the push control agent, claim 1
recites “determining, by a delivery control agent executed by the data
processing system, based on the account identifier, a parameter used to
control delivery of the selected push content item to the computing device of
the account identifier” (step G); “comparing, by the delivery control agent, a
value of the determined parameter with a threshold value to authorize the
selected push content item for presentation in the push content slot via the
computing device linked to the account identifier” (step H); and “providing,
by the delivery control agent responsive to authorizing the selected push
content item based on the comparison, via a computer network, the selected
push content item for presentation in the push content slot via the computing
device linked to the account identifier” (step I). Id. at 28–29 (Claims App.)
(emphasis added). Accordingly, claim 1 calls for the delivery control agent
to determine the “parameter” “based on the account identifier” of the
computing device. The Specification discloses that the parameter can be
based on a historical model associated with the account identifier. See, e.g.,
Spec. 4, ll. 12–14.2 Delivery of the push content item for presentation can
be based on a delivery control policy. See, e.g., Spec. 33, ll. 6–7 (“The data
processing system can authorize delivery of the push content item for
presentation via the computing device responsive to or based on the delivery
control policy.”)3. Based on this disclosure, it appears that whether or not an
improvement (i.e., with respect to the technical problem) is actually

2 See also claim 8, which depends from claim 1.
3 See also claim 9, which depends from claim 1.
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achieved by performing the claimed method is influenced by the delivery
control policy of the computer device, rather than strictly on the method
itself.
Further, step H of claim 1 does not recite any limitation that
“comparing . . . a value of the determined parameter with a threshold value
to authorize the selected push content item” can prevent (i.e., block) the
selected push content item from being authorized by the delivery control
agent. In other words, although step H calls for comparing a value of the
determined parameter with a “threshold value,” the claim language does not
indicate that this comparison results in the selected push item not being
authorized for presentation, that is, results in the delivery control agent
preventing the selected push item from being presented. To the extent it is
Appellant’s position that performing step G, which uses a delivery control
agent to determine a parameter to control delivery of the selected push
content item to the computing device, will necessarily prevent “sending
indiscriminate push notifications or push content items” (Appeal Br. 16)
when the method is executed, we disagree. Rather, the language of
subsequent step H does not prevent the sending of a selected push content
item, regardless of the result of a comparison between the value of the
determined parameter and the threshold value.
Moreover, Appellant has not shown persuasively that providing a
single selected push content item to the computer device, which can be the
result of performing steps G–I utilizing the deliver control agent, necessarily
results in an improvement to the functioning of the computing device itself.
For example, step G does not indicate that the parameter corresponds to the
selected push content item having less data than the other candidate push
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content items, such that “reducing the amount of computing or energy
resource utilization” would necessarily occur.
Accordingly, we are unpersuaded that the additional elements recited
in claim 1 necessarily reflect an improvement in the functioning of a
computer, or an improvement to other technology, or that claim 1, as a
whole, integrates the judicial exception into a practical application of the
exception. That is, we determine that claim 1 is “directed to” the judicial
exception. See 2019 Guidance at 54.
Step 2B – Inventive Concept
We next determine whether claim 1 adds a specific limitation beyond
the judicial exception that is not “well-understood, routine, conventional” in
the field. See 84 Fed. Reg. 56.
The Examiner determines that claim 1 “recites the additional
limitation of a content presenting device and a mobile computing device,
claimed as a generic computer recited as performing generic computer
networking functions that are well-understood, routine and conventional
activities amount to no more than implementing the abstract idea with a
computerized system.” Final Act. 4.
Appellant contends that recited combination of elements amounts to
significantly more than the purported abstract idea. Appeal Br. 21.
According to Appellant “the claims recite a non-conventional and a non-
generic arrangement of the elements that improves the generation of push
notifications by reducing the amount of computing or energy resource
utilization.” Id. at 21–22. Additionally, Appellant contends that the
Examiner has not provided evidence that the claims recite “‘generic
computer components performing well-understood, routine, and
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conventional functions, which amount to nothing more than placing the
abstract idea in a particular technological context.’” Id. at 22. Appellant
contends that the Examiner has not applied the procedure set forth in the
“Berkheimer Memo” for showing that a combination of elements is well-
understood, routine, and conventional. Id. at 22–23.
The Examiner responds that the rejection is not premised on the
claimed invention using a generic computer to select content based on user
information or on the conventionality of the claims, but rather, is based “[on]
the claims being directed to a sales and marketing behavior, that of targeting
content to a user based on sensor information about that user.” Ans. 9.
As discussed, the Examiner’s position is that the abstract idea recited
in claim 1 includes essentially all claim limitations other than the use of “a
data processing system,” “a computing device,” and “a computer network”
(Ans. 4–5), and these elements are merely generic computer elements used
to perform the recited steps to implement the abstract idea (id. at 6–7). As
for the computer components recited in claim 1, the Specification discloses
that the data processing system comprises one or more processors and a
memory. Spec. 5, 4–5. The description of the data processing system 120
does not appear to indicate that it requires more than generic components.
See, e.g., Spec. 10, l. 19–11, l. 3. Additionally, the Specification discloses
that the computing device 110 can be, for example, “a laptop, desktop,
tablet, personal digital assistant, smart phone, or portable computers.” See,
e.g., id. at 9, l. 25–26. This description likewise does not appear to indicate
that the computing device is required to be more than a generic component.
The Specification further discloses that “[t]he network 105 can include
computer networks such as the Internet, local, wide, metro, or other area
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networks, intranets, satellite networks, and other communication networks
such as voice or data mobile telephone networks. See, e.g., id. at 9, l. 21–23.
This description does not appear to indicate that the network requires other
than generic components.
Appellant does not persuasively argue that the additional claim
elements are sufficient to amount to significantly more than the abstract idea
itself. To the extent Appellant is relying on the claim limitations that recite
the abstract idea as providing significantly more, “[i]t has been clear since
Alice that a claimed invention’s use of the ineligible concept to which it is
directed cannot supply the inventive concept that renders the invention
‘significantly more’ than that ineligible concept.” BSG Tech LLC v.
BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018); Synopsys, 839 F.3d
at 1151 (“[A] claim for a new abstract idea is still an abstract idea.”). “If a
claim’s only ‘inventive concept’ is the application of an abstract idea using
conventional and well-understood techniques, the claim has not been
transformed into a patent-eligible application of an abstract idea.” BSG Tech
LLC, 899 F.3d. at 1290–91. We agree with the Examiner that the claimed
method can use generic components as a tool to perform the abstract idea,
which does not transform the claim into a patent-eligible application of the
abstract idea. Alice, 573 U.S. at 212.
Thus, we sustain the rejection of claim 1 under 35 U.S.C. § 101.
Claims 2–20 fall with claim 1.

Obviousness
The Examiner appears to find that Agrawal discloses all recited
limitations of independent claims 1 and 11 (i.e., anticipates claims 1 and 11),
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as the Examiner does not describe that Agrawal is modified in any manner.
Final Act. 5–8.
Appellant contends that Agrawal does not disclose or suggest step A
of claim 1, and the similar “periodically receive” limitation recited in claim
11. Appellant points out that the description at column 9, lines 14–26 of
Agrawal, relied on the Examiner, describes “the advertisement module 120
inserts the advertisement messages into the requested message stream” and
“provid[ing] the requested message stream to the requesting account holder
through their client.” Appeal Br. 24–25 (emphasis added); Final Act. 5.
We are persuaded by Appellant that the Examiner does not explain
adequately how the passages in Agrawal cited in the Final Action disclose or
suggest the contested limitations recited in claims 1 and 11. Appeal Br. 24–
26; Final Act. 5–6. These limitations require a push trigger to periodically
receive data from a computing device, independent of the computing device
requesting content, and require the computing device to provide sensor
information via a push content agent executing on the computing device. In
contrast, the Examiner finds that Agrawal discloses inserting advertisement
messages into a requested message stream provided to the requesting
account holder. The Examiner also does not show by a preponderance of the
evidence that Agrawal discloses a push content agent that executes on a
computing device and provides sensor information (data) to a push trigger.
In the Examiner’s Answer, the Examiner cites several additional
passages of Agrawal. Ans. 10 (citing Agrawal, col. 14, ll. 20–25, col. 16, ll.
25–30, 60–65). According to the Examiner, column 14, lines 20–25 of
Agrawal pertains to inferring location information from data associated with
an author’s message, column 16, lines 25–30 and 60–65 of Agrawal pertains
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to using the sensor information to target content. We note, however, that
this passage refers to “a target account associated with a received request.”
Id. The Examiner does not explain adequately how these additional
passages in Agrawal disclose, or suggest, a push trigger periodically
receiving data from a computing device, independent of the computing
device requesting content, and the computing device providing sensor
information via a push content agent executing on the computing device, as
required by claims 1 and 11.
Accordingly, we do not sustain the rejection of claims 1 and 11, and
claims 2–10 and 12–20 depending therefrom, as unpatentable over Agrawal.

CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 101 Eligibility 1–20
1–20 103 Agrawal 1–20
Overall
Outcome
1–20

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED