Martin Karches et al.

Patent Trials and Appeals Board

Dec 27, 2019

13378082 - (D) (P.T.A.B. Dec. 27, 2019)

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.
13/378,082 12/14/2011 Martin Karches 390441US99PCT 4556
22850 7590 12/27/2019
OBLON, MCCLELLAND, MAIER & NEUSTADT, L.L.P.
1940 DUKE STREET
ALEXANDRIA, VA 22314
EXAMINER
NGUYEN, NGOC YEN M
ART UNIT PAPER NUMBER
1734
NOTIFICATION DATE DELIVERY MODE
12/27/2019 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):
OBLONPAT@OBLON.COM
iahmadi@oblon.com
patentdocket@oblon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
_________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte MARTIN KARCHES,
KATI BACHMANN, MARTIN SESING,
LOTHAR SEIDEMANN,
and KNUD JACOBSEN
__________

Appeal 2018-003176
Application 13/378,082
Technology Center 1700
___________

Before ADRIENE LEPIANE HANLON, CATHERINE Q. TIMM, and
N. WHITNEY WILSON, Administrative Patent Judges.

HANLON, Administrative Patent Judge.

DECISION ON APPEAL

A. STATEMENT OF THE CASE
The Appellant1 filed an appeal under 35 U.S.C. § 134(a) from an Examiner’s
decision rejecting claims 1–3, 5–13, 17, and 18 under 35 U.S.C. § 103(a) as

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 BASF SE. Appeal Brief
dated August 29, 2017 (“App. Br.”), at 2.
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unpatentable over Walsdorff et al.2 in view of the admitted prior art3 and Fogler,4
and optionally further in view of Hibi et al.5 We have jurisdiction under
35 U.S.C. § 6(b). A hearing was held on August 29, 2019.
We AFFIRM-IN-PART.
The claims on appeal are directed to a process for preparing chlorine by
reacting hydrogen chloride and oxygen in a fluidized-bed reactor. In a first heating
phase, the fluidized-bed reactor is heated by introducing hot nitrogen into the
reactor and circulating a heat transfer medium in a heat exchanger. Next, hydrogen
chloride and oxygen are fed into the reactor and reacted with one another, thereby
heating the reactor in a second heating phase. In a subsequent operating phase,
hydrogen chloride is further reacted in the reactor with oxygen in the presence of a
particulate catalyst.
Independent claim 1 is reproduced below from the Claims Appendix to the
Appeal Brief.
1. A process for preparing chlorine, the process comprising:
introducing hot nitrogen into a fluidized-bed reactor to heat the
fluidized-bed reactor to a first temperature in a first heating phase;
feeding hydrogen chloride and oxygen into the fluidized-bed
reactor and reacting the hydrogen chloride and oxygen, thereby
heating the fluidized-bed reactor to an operating temperature of from
350 to 420°C in a second heating phase;
further reacting hydrogen chloride with oxygen in the presence
of a particulate catalyst in the fluidized-bed reactor at the operating
temperature in an operating phase; and

2 US 2007/0202035 A1, published August 30, 2007 (“Walsdorff”).
3 Spec. 1.
4 H. Scott Fogler, Catalyst decay in Elements of Chemical Reaction Engineering 1–
30 (4th ed., Pearson Education, Inc. 2006) (“Fogler”).
5 US 2002/0028173 A1, published March 7, 2002 (“Hibi”).
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circulating water in a tube of a shell-and-tube heat exchanger to
remove heat from the fluidized-bed reactor,
wherein:
the first temperature is below the operating temperature;
the operating temperature is increased during the operating
phase to counter a decrease in HCl conversion due to progressive
deactivation of the particulate catalyst;
the first heating phase occurs before the hydrochloric acid and
oxygen are introduced into the fluidized-bed reactor; and
the first heating phase further comprises circulating a heat
transfer medium in the tube of the shell-and-tube heat exchanger to
heat the shell-and-tube heat exchanger, thereby heating the fluidized-
bed reactor.
App. Br. 22.
B. DISCUSSION
1. Claim 1
Claim 1 recites a process for preparing chlorine by reacting hydrogen
chloride and oxygen in a fluidized-bed reactor. A first heating phase in the
claimed process comprises heating the fluidized-bed reactor by introducing hot
nitrogen into the reactor and circulating a heat transfer medium in a heat
exchanger. Once the fluidized-bed reactor is heated to the claimed “first
temperature,” hydrogen chloride and oxygen are fed into the reactor. See App. Br.
22; see also App. Br. 4 (contending that claim 1 requires “‘a first heating phase’ in
which both ‘hot nitrogen’ and a ‘heat transfer medium’ are used to pre-heat the
fluidized-bed reactor to a ‘first temperature’” (emphasis added)).
The Examiner finds Walsdorff discloses a process for producing chlorine
from hydrogen chloride and oxygen in a fluidized-bed reactor. Non-Final Act. 3.6

6 Non-Final Office Action dated April 6, 2017.
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The Examiner finds, and the Appellant does not dispute, that a heat exchanger can
be used to heat the fluidized-bed before the reaction gases are introduced. Non-
Final Act. 4–5, 9–10; see also App. Br. 10 (recognizing Walsdorff teaches
circulating a heat transfer medium through a heat exchanger to heat the fluidized-
bed).
The Examiner finds Walsdorff does not disclose using hot nitrogen gas in
combination with the heat transfer medium to heat the fluidized-bed as recited in
claim 1. Non-Final Act. 7. The Examiner, however, finds “the admitted prior art
on page 1 [of the Appellant’s Specification] discloses that the heating up of a
fluidized[-]bed reactor in the start-up phase is usually effected by feeding in a
preheated inert gas stream, in general nitrogen.” Non-Final Act. 7.
The Examiner concludes that it would have been obvious to one of ordinary
skill in the art to use hot nitrogen gas to heat up the fluidized-bed in Walsdorff’s
process “because such use is known in the art.” Non-Final Act. 7 (citing Spec. 1).
The Examiner continues:
Since Walsdorff ‘035 discloses that the heat transfer media can
be used both for introducing heat and for removing heat from the
fluidized[-]bed (note paragraph [0042]) and the admitted prior art
discloses that nitrogen can be used to preheat the fluidized[-]bed,
these two methods are considered as analogous methods for
preheating the fluidized[-]bed. Combining equivalents known for the
same purpose, i.e. using both the heat exchanger using the heat
transfer media as disclosed in Walsdorff ‘035 and the hot nitrogen as
suggested by the admitted prior art to heat up the fluidized[-]bed in
Walsdorff ‘035, would have been obvious to one skilled in the art
(note MPEP 2144.06).
Non-Final Act. 8 (emphasis added).
The Appellant argues that
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given that Walsdorff does not disclose the use of hot nitrogen for pre-
heating the reactor, and the background of the specification does not
disclose that hot nitrogen and a heat transfer medium (i.e., steam) are
equivalent methods for pre-heating a reactor, the Examiner cannot
rely on the legal precedents cited in Section 2144.06 of the [MPEP].
App. Br. 12.
The Appellant’s argument is not persuasive of reversible error. It is of no
moment in the obviousness rejection on appeal that a single prior art reference does
not disclose that both a heat transfer medium and hot nitrogen are useful for
preheating a fluidized-bed. See In re Keller, 642 F.2d 413, 425 (CCPA 1981) (the
test for obviousness is not whether the claimed invention is expressly suggested in
any one or all of the references; rather, the test for obviousness is what the
combined teachings of the references would have suggested to one of ordinary skill
in the art); see also Syntex (U.S.A.) LLC v. Apotex, Inc., 407 F.3d 1371, 1380 (Fed.
Cir. 2005) (“prior art references that are capable of rendering an invention obvious
under a section 103 analysis are not limited to reference[s] that also anticipate”).
In this case, Walsdorff suggests that a heat transfer medium is useful for
preheating a fluidized-bed in a process for producing chlorine from hydrogen
chloride and oxygen. Similarly, the Appellant discloses that hot nitrogen was
known to be useful for preheating a fluidized-bed used to produce chlorine from
hydrogen chloride and oxygen. Therefore, the Examiner had a reasonable basis to
conclude that it would have been obvious to one of ordinary skill in the art to use
the combination of a heat transfer medium and hot nitrogen for the very same
purpose (i.e., to preheat a fluidized-bed in a process for producing chlorine from
hydrogen chloride and oxygen). Ans. 10.7

7 Examiner’s Answer dated November 30, 2017.
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The Appellant contends that page 1, lines 33–39 of the Appellant’s
Specification disclose that “when a pre-heated inert gas stream (such as hot
nitrogen) is used to heat up a fluidized-bed reactor in a start-up phase, the heat-
exchange tubes are blocked so that no heat transfer medium (usually water) is
present therein.” App. Br. 12. The Appellant also argues that “[i]f the heat
exchangers [of Walsdorff] are supplied with water during pre-heating with hot
nitrogen, then steam pulses (sudden vaporization of water in the heat-exchange
tubes) can occur—leading to damage to the heat exchanger or even tube rupture.”
App. Br. 12 (citing Spec. 2, ll. 7–10).
The Examiner correctly concludes that the Appellant’s claims “do not
require that the hot nitrogen gas and the heat exchanger are used simultaneously.”
Ans. 15. Moreover, the Examiner explains:
[T]he admitted prior art on page 1 of Appellants’ [sic, Appellant’s]
specification does not state why the heat exchanger tubes are blocked.
It could be reasonably assumed that the heat transfer medium was not
preheated; therefore, it is preferred to block off the heat exchange
tubes so that the hot nitrogen would not have to heat up the heat
transfer medium in the heat exchanger. However, if the heat transfer
medium was preheated, as in the case it would be used to introduce
heat to the fluidized[-]bed as disclosed in Walsdorff ‘035, there would
be no reason to block off the heat exchange tubes.[8]
Ans. 15–16. The Appellant does not offer a response.
As for the steam pulses referred to by the Appellant, the Examiner finds that
“page 2, lines 7–10 of Appellants’ [sic, Appellant’s] specification discloses that if
the heat exchangers are supplied with water ‘only when the desired reactor

8 See App. Br. 23 (reciting, in claim 6, that hot nitrogen is introduced into the
fluidized-bed “after the circulating of the heat transfer medium” (emphasis
added)).

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temperature of 380°C has been reached, steam pulses (sudden vaporization of
water in the heat-exchange tubes) occur.’” Ans. 16 (emphasis added). The
Examiner finds Hibi discloses that “producing chlorine from HCl is preferably
carried out at a temperature of 200 to 400°C or 200 to 380°C.” Ans. 16 (citing
Hibi ¶ 274). The Examiner finds Walsdorff teaches that it is desirable to start the
reaction at lower temperatures (i.e., “closer to 200°C”). Therefore, the Examiner
finds “[t]here is no reason to expect steam pulses would occur even if the heat
exchanger [were] supplied with water during the pre-heating because the
temperature of the pre-heating step would be below . . . 380°C.” Ans. 16. Again,
the Appellant does not offer a response.
The Appellant also argues that introducing hot nitrogen to Walsdorff’s
reactor during a heating-up phase would have produced a temperature profile
contrary to the teachings of Walsdorff. App. Br. 8. The Appellant directs our
attention to the temperature profile illustrated in Walsdorff Figure 1, reproduced
below.
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Walsdorff Figure 1 shows a schematic diagram of a
fluidized-bed reactor and the temperature profile
in the reactor.
Walsdorff Figure 1 illustrates a first temperature level 20, a second
temperature level 21, and a third temperature level 22. Walsdorff discloses:
The feed gases are fed into the windbox 3 of the fluidized-bed reactor
1 at the feed temperature 23. The reaction commences in the
fluidized[-]bed 5. Heat is liberated in this reaction. For this reason,
the temperature rises in the region of the first temperature zone 6
during a warm-up phase 24 until it reaches the third temperature level
22. After the third temperature level 22 has been reached, a constant
temperature 25 is established within the first temperature zone 6 due
to the mixing of the fluidized[-]bed 5.
Walsdorff ¶ 58 (emphasis omitted). The Examiner finds that feed temperature 23
(or first temperature level 20) corresponds to the claimed “first temperature” and
the temperature range from the second temperature level 21 to the third
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temperature level 22 corresponds to the claimed “operating temperature in the
second heating phase.” Non-Final Act. 3.
The Appellant argues that
[n]o motivation would have existed to modify the process of
Walsdorff to use both hot nitrogen (introduced directly to the
fluidized-bed reactor) and a heat transfer medium (circulated through
the heat exchanger (12) in Figure 1), because hot nitrogen applied to
the bottom of the fluidized[-]bed would be expected to increase the
“first temperature level” (20)—thereby reducing or eliminating the
desired temperature distribution.
App. Br. 10.
In the proposed modification, the Examiner finds that hot nitrogen and the
heat transfer medium would preheat Walsdorff’s fluidized-bed to first temperature
level 20 illustrated in Walsdorff Figure 1. Ans. 13. After first temperature level
20 is reached, the Examiner finds that the use of hot nitrogen and the heat
exchanger to preheat the fluidized-bed would be stopped. Ans. 12; see also Ans.
13 (finding that after temperature 20 is reached, “hot nitrogen and heating by the
heat exchanger would no longer be required”); Ans. 14 (finding that “hot nitrogen
would only be used to raise the temperature of fluidized[-]bed to level ‘20’ (and its
use would be discontinued thereafter)”). Therefore, the Examiner finds that the
use of hot nitrogen (in combination with the heat transfer medium) would not have
resulted in a temperature profile different from the temperature profile illustrated in
Walsdorff Figure 1. Ans. 14.
Finally, the Appellant argues that the Examiner reversibly erred in relying
on Fogler to establish that it would have been obvious to increase the operating
temperature in Walsdorff’s process because Walsdorff teaches that it is
advantageous to decrease the operating temperature. App. Br. 14.
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The Appellant’s argument is not persuasive of reversible error. The
Examiner relies on Fogler to show that when the activity of the catalyst decreases,
the reaction temperature would need to be increased to compensate for the
decreased catalytic activity. Ans. 18. The Examiner finds Walsdorff discloses the
claimed increase in operating temperature. In that regard, the Examiner finds that
the temperature range from second temperature level 21 to third temperature level
22 corresponds to the claimed “operating temperature in the second heating
phase.” Non-Final Act. 3. Clearly, Walsdorff Figure 1 shows that the temperature
increases from second temperature level 21 to third temperature level 22. As for
the decrease in temperature disclosed in Walsdorff (i.e., from temperature 25 to
temperature 27 in Walsdorff Figure 1), that decrease occurs during cooling phase
26. Walsdorff ¶ 59. The Examiner correctly concludes that claim 1 does not
exclude Walsdorff’s cooling phase. Ans. 18.
For the reasons set forth above, a preponderance of the evidence of record9
supports the Examiner’s conclusion of obviousness.10 Therefore, the obviousness
rejection of claim 1 is sustained.
The Appellant does not present arguments in support of the separate
patentability of any of claims 7–13 and 17. Therefore, the obviousness rejection of
claims 7–13 and 17 also is sustained.

9 Throughout the Appeal Brief and the Reply Brief, the Appellant incorrectly states
the standard for patentability determinations before the USPTO. Patentability
determinations are based on a preponderance of the evidence, not substantial
evidence as argued by the Appellant. See In re Oetiker, 977 F.2d 1443, 1449 (Fed.
Cir. 1992) (“factual determinations by the PTO must be based on a preponderance
of the evidence”).
10 We note that the Appellant does not direct us to any evidence of unexpected
results.
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2. Claim 2
Claim 2 depends from claim 1 and recites that “the first temperature is from
205 to 350°C.” App. Br. 22.
The Appellant argues that “the Examiner has provided no concrete
explanation of why it would have been desirable to set the feed temperature (23) of
Walsdorff to [a] range from 205–350°C.” App. Br. 15.
To the contrary, the Examiner finds Hibi discloses that the preferred reaction
temperature for oxidizing hydrogen chloride to produce chlorine is from 200 to
400°C. Non-Final Act. 6. The Examiner concludes that
it would have been obvious to one of ordinary skill in the art to raise
the reaction temperature by using an external heat to the lowest
temperature that would allow the reactants to react (first temperature
23 [(“around 200”11)]), i.e. just enough to provide the activation
energy because as soon as the reaction started, the heat generated by
the exothermic reaction would raise the reaction temperature to the
second and third temperatures as shown in the Figure 1.
Non-Final Act. 6–7; see also Ans. 19 (concluding that it would have been obvious
to one of ordinary skill in the art to start the reaction at a temperature closer to the
lower end of the preferred range suggested by Hibi because if the temperature is
too high, more heat must be removed later to maintain the reaction temperature
within the desired range). The Appellant has failed to establish otherwise.
The obviousness rejection of claim 2 is sustained.
3. Claim 3
Claim 3 depends from claim 1 and recites that “a temperature of the hot
nitrogen is from 300 to 400°C when the hot nitrogen is introduced into the
fluidized-bed reactor.” App. Br. 23.

11 Non-Final Act. 7.
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The Appellant argues that “the Examiner has provided no concrete
explanation of why it would have been desirable to set the temperature of nitrogen
. . . to [a] range from 300–400°C.” App. Br. 16.
In response, the Examiner explains,
[s]ince the admitted prior art clearly teaches hot nitrogen is commonly
used to heat up the fluidized[-]bed, such as about 400°C (note
background section, page 3, lines 1–2), it would have been obvious to
one skilled in the art to select an appropriate temperature for the hot
nitrogen to efficiently heat up the fluidized[-]bed reactor without
causing undesirable sintering of the fluidized[-]bed catalyst.[12]
Ans. 20. The Appellant has failed to establish otherwise.
The obviousness rejection of claim 3 is sustained.
4. Claim 5
Claim 5 depends from claim 1 and recites that “the heat transfer medium is
steam having a pressure of from 16 to 165 bar and a temperature of from 205 to
350°C.” App. Br. 23.
The Appellant argues that “no motivation would have existed based on the
teachings of Walsdorff to employ steam as a heat transfer medium to heat the
fluidized[-]bed reactor during a pre-heating phase.” App. Br. 17. The Appellant
argues that paragraphs 41 and 55 of Walsdorff disclose that boiling water (i.e.,
steam) may be used to remove heat from the fluidized-bed reactor. App. Br. 17.
However, the Appellant argues that Walsdorff does not disclose that boiling water
may also be used to heat the fluidized-bed. App. Br. 17 (citing Walsdorff ¶ 42).
Walsdorff discloses that “[f]urther heat transfer media which can be used
both for introducing heat and for removing heat from the fluidized[-]bed are, for

12 The Appellant discloses that sintering occurs at 450°C. Spec. 2, ll. 4–7.
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example, thermal oils or further heat transfer media known to those skilled in the
art.” Walsdorff ¶ 42 (emphasis added).
We recognize that Walsdorff does not expressly disclose, in paragraph 42,
that steam may be used to heat the fluidized-bed. Nonetheless, Walsdorff does not
expressly exclude using steam (see Ans. 21), and the evidence of record establishes
that steam was a known heat transfer medium at the time of the Appellant’s
invention (see Walsdorff ¶¶ 41, 55). Thus, a preponderance of the evidence of
record supports a finding that one of ordinary skill in the art would have expected
steam to be useful for introducing heat to Walsdorff’s fluidized-bed in the
disclosed process. For that reason, we find that one of ordinary skill in the art
would have been motivated to heat Walsdorff’s fluidized-bed using steam.
The obviousness rejection of claim 6 is sustained.
5. Claim 6
Claim 6 depends from claim 1 and recites that “the introducing of the hot
nitrogen into the fluidized-bed reactor occurs after the circulating of the heat
transfer medium.” App. Br. 23 (emphasis added).
The Appellant argues that “the Examiner has not provided an explanation as
to why it would have been desirable to modify the process of Walsdorff such that
the fluidized-bed reactor is pre-heated using a heat transfer medium (circulated
through a heat exchanger) followed by hot nitrogen (introduced directly into the
reactor).” App. Br. 18. In particular, the Appellant argues that
Further heating the fluidized-bed (after pre-heating with a heat
transfer medium) by introducing hot nitrogen would not be
undertaken, because this would produce the opposite temperature
distribution—in which the first temperature (20) would be higher than
the temperature of the fluidized-bed near the second temperature zone
(8).
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App. Br. 19.
For the reasons discussed above, one of ordinary skill in the art would not
have heated Walsdorff’s fluidized-bed higher than first temperature level 20 using
a heat transfer medium, either alone or in combination with hot nitrogen.
Therefore, a temperature profile contrary to the teachings of Walsdorff would not
have been produced in Walsdorff’s modified process. See Ans. 22.
As for the order of heating recited in claim 6, the Examiner concludes that
the “selection of any order of performing process steps is prima facie obvious in
the absence of new or unexpected results.” Ans. 21 (citing In re Burhans, 154 F.2d
690 (CCPA 1946)). In response, the Appellant does not explain why the order of
steps recited in claim 6 is critical or direct us to any evidence establishing that the
claimed order of steps would have produced unexpected results.
The obviousness rejection of claim 6 is sustained.
6. Claim 18
Claim 18 depends from claim 1 and recites that “the HCl:O2 ratio is reduced
during the operating phase to counter a decrease in HCl conversion due to
progressive deactivation of the particulate catalyst.” App. Br. 24.
The Examiner finds that it is conventional in the art to use excess oxygen to
promote the complete oxidation of HCl. Non-Final Act. 9 (citing Hibi ¶ 274). The
Examiner, however, explains that, as suggested by Folger, “in order to maintain the
reaction rate when the catalyst becomes deactivated, the reaction temperature
needs to be increased.” Non-Final Act. 9. Therefore, the Examiner concludes that
it would have been obvious to one of ordinary skill in the art to use any means to
raise the reaction temperature, such as decreasing the amount of oxygen used
“because less oxygen used, less heat is required to heat up the extra oxygen.” Non-
Final Act. 9.
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The Appellant argues that “[t]he Examiner has not provided any concrete
evidence (other than pure conjecture) to support the factual conclusion . . . that
using less oxygen would naturally lead to an increase in reaction temperature.”
Reply Br. 1113; see also App. Br. 20 (arguing that the Examiner makes the
conclusory statement that decreasing the amount of oxygen used would raise the
reaction temperature because less heat is required to heat up the extra oxygen).
In response, the Examiner explains that:
As stated in the . . . rejection [of claim 18], Fogler fairly teaches that
the reaction temperature should be increased with time as the catalyst
becomes deactivated and in order to raise the temperature, it would
have been obvious to one skilled in the art to use less oxygen so that
less heat would be required to heat up the extra oxygen.
Ans. 23 (emphasis added).
The Examiner, however, does not provide any technical reasoning or direct
us to any evidence to support the conclusory statement that “in order to raise the
temperature, it would have been obvious to one skilled in the art to use less oxygen
so that less heat would be required to heat up the extra oxygen.”14 See Reply Br.
11 (arguing that “introducing less oxygen would not be undertaken, because doing
so would reduce conversion and thereby reduce the amount of heat released”).
Therefore, the obviousness rejection of claim 18 is not sustained. See In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006) (“rejections on obviousness grounds cannot be
sustained by mere conclusory statements; instead, there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness”).

13 Reply Brief dated January 30, 2018.
14 Ans. 23; see also Non-Final Act. 9 (concluding that it would have been obvious
to one of ordinary skill in the art to decrease the amount of oxygen used “because
less oxygen used, less heat is required to heat up the extra oxygen”).
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C. CONCLUSION
The Examiner’s decision is affirmed-in-part.

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 5–13, 17,
18
103(a) Walsdorff,
Admitted prior art,
Fogler, Hibi
1–3, 5–13, 17 18
Overall
Outcome
1–3, 5–13, 17 18

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)(iv).

AFFIRMED-IN-PART