Viacom International Inc.

Patent Trials and Appeals Board

Jun 14, 2021

2021001009 (P.T.A.B. Jun. 14, 2021)

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.
15/703,622 09/13/2017 David BERZIN 40205/09101 (MTV-091) 1314
30636 7590 06/14/2021
FAY KAPLUN & MARCIN, LLP
150 BROADWAY, SUITE 702
NEW YORK, NY 10038
EXAMINER
LONG, MEREDITH A
ART UNIT PAPER NUMBER
3688
NOTIFICATION DATE DELIVERY MODE
06/14/2021 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):
mmarcin@fkmiplaw.com
okaplun@fkmiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID BERZIN, SASHI MARELLA, and
TANMAY MANOHAR
Appeal 2021-001009
Application 15/703,622
Technology Center 3600
Before MURRIEL E. CRAWFORD, MICHAEL L. WOODS, and
MATTHEW S. MEYERS, Administrative Patent Judges.
MEYERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–9 and 11–19. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Viacom International
Inc. Appeal Br. 2.
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CLAIMED INVENTION
The claims are “related to a device, system, and method for
determining a post benchmark based on previously used posts and utilizing
the post benchmark as a basis to determine a projection for a proposed post.”
Spec. ¶ 11. Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method, comprising:
at a comparison server:
receiving data of a past post, the past post having been
used for a media content, the past post having known results of
reaching an audience;
determining at least one first characteristic of the past post
based on at least one entity involved in the past post and the
media content;
determining a first similarity index of the at least one first
characteristic to at least one second characteristic of a post
benchmark, the post benchmark having aggregated results
associated therewith;
when the similarity index is above a first threshold,
incorporating the past post with the post benchmark, the known
results being aggregated with the aggregated results;
identifying one of the at least one first characteristic
different from any one of the at least one second characteristic;
and
incorporating the identified one of the at least one first
characteristic into the post benchmark.
Appeal Br. 10 (Claims App.).
REJECTION
Claims 1–9 and 11–19 are rejected under 35 U.S.C. § 101 as directed
to a judicial exception without significantly more.
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ANALYSIS
Claims 1–9 and 11–17
Appellant argues claims 1–9 and 11–17 as a group. Appeal Br. 5–8;
Reply Br. 2–5. We select independent claim 1 as representative. The
remaining claims stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
35 U.S.C. § 101 Framework
Section 101
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 U.S. 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 Court’s two-part framework, described in Mayo and Alice.
Alice, 573 U.S. 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 (“On their face, the claims before us are drawn to the
concept of intermediated settlement, i.e., the use of a third party to mitigate
settlement risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010)
(“Claims 1 and 4 in petitioners’ application explain the basic concept of
hedging, or protecting against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
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mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Court held that “a claim drawn to subject matter otherwise statutory does not
become nonstatutory simply because it uses a mathematical formula.”
Diehr, 450 U.S. at 187; see also id. at 191 (“We view respondents’ claims as
nothing more than a process for molding rubber products and not as an
attempt to patent a mathematical formula.”). Having said that, the Court
also indicated that a claim “seeking patent protection for that formula in the
abstract . . . is not accorded the protection of our patent laws, and this
principle cannot be circumvented by attempting to limit the use of the
formula to a particular technological environment.” Id. (citing Benson and
Flook); see, e.g., id. at 187 (“It is now commonplace that an application of a
law of nature or mathematical formula to a known structure or process may
well be deserving of patent protection.”).
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
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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.
USPTO Section 101 Guidance
We are also guided by U.S. Patent and Trademark Office (“USPTO”)
Guidance, as set forth in the 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”), incorporated into
the MANUAL OF PATENT EXAMINING PROCEDURE §§ 2104–06, Rev. 10.2019
(“MPEP”) in June 2020. “The guidance sets out agency policy with respect
to the USPTO’s interpretation of the subject matter eligibility requirements
of 35 U.S.C. [§] 101 in view of decisions by the Supreme Court and the
Federal Circuit.” Guidance, 84 Fed. Reg. at 51.2 Although “[a]ll USPTO
personnel are, as a matter of internal agency management, expected to
follow the guidance,” the Guidance “does not create any right or benefit,
substantive or procedural, enforceable by any party against the USPTO.” Id.
The Guidance, by its terms, applies to all applications, and to all patents
resulting from applications, filed before, on, or after January 7, 2019. Id.
at 50.
Under USPTO Guidance, we first look to whether the claim recites:
(1) any judicial exceptions, including laws of nature, natural phenomena,
and products of nature (see MPEP §§ 2106.04(II)(A)(1), 2106.04(b))
(“Step 2A, Prong One”); and (2) additional elements that integrate the

2 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the 2019 Revised Guidance, 84
Fed. Reg. USPTO, October 2019 Update: Subject Matter Eligibility (the
“October 2019 Update”) (available at https://www.uspto.gov/sites/default/
files/documents/peg_oct_update.pdf).
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judicial exception into a practical application (see id. §§ 2106.04(II)(A)(2),
2106.04(d)) (“Step 2A, Prong Two”).3
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look, under
Step 2B, to whether the additional elements, individually or in combination,
provide an inventive concept. See MPEP §§ 2106(III), 2106.05. “An
inventive concept ‘cannot be furnished by the unpatentable law of nature (or
natural phenomenon or abstract idea) itself.’” Id. § 2106.05 (quoting
Genetic Techs. v. Merial LLC, 818 F.3d 1369, 1376 (Fed. Cir. 2016)).
Among the considerations in determining whether the additional elements,
individually or in combination, amount to significantly more than the
exception itself, we look to whether they add a specific limitation beyond the
judicial exception that is not “well-understood, routine, conventional” in the
field or simply append well-understood, routine, conventional activities
previously known to the industry, specified at a high level of generality, to
the judicial exception. MPEP § 2106.05(II); Guidance, 84 Fed. Reg. at 56.
Step One of the Mayo/Alice Framework
Under the first step of the Mayo/Alice framework and Step 2A, Prong
One of USPTO Guidance, the Examiner determines that exemplary
independent claim 1 recites a series of steps for “determining,”
“identifying,” and “incorporating” that include actions that can be performed
“in the mind[,] but for the recitation of generic computer components.”

3 This evaluation is performed 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 the claim as a whole integrates the exception into a
practical application. See Guidance - Section III(A)(2), 84 Fed. Reg.
at 54–55; MPEP § 2106.04(d).
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Final Act. 4. More particularly, the Examiner determines that each of the
limitations of claim 1 includes steps that a user may manually perform, and
as such, characterizes claim 1 as being directed to “the mental processes
grouping of abstract ideas.” Id.
Under Prong Two of USPTO Guidance, the Examiner determines that
the identified judicial exception is not integrated into a practical application
because the additional elements “include[] no more than mere instructions to
apply the exception using a generic computer component,” i.e., a
“comparison server,” which “does not integrate the abstract idea into a
practical application because it does not impose any meaningful limits on
practicing the abstract idea.” Id. at 8. The Examiner also finds that the
“receiving” limitation “is mere data gathering and is considered insignificant
extra-solution activity which does not integrate the abstract idea into a
practical application.” Id.
In response, Appellant asserts that the claims “are not directed to an
abstract idea because an improved data structure, specifically an improved
metadata taxonomy is recited in the claims.” Appeal Br. 5. Appellant
further asserts the claims “create deep metadata taxonomies,” “enrich the
posts with metadata,” “utilize a more granular approach relative to existing
methods,” and thus, represent a “technical improvement” because of the
identified “improved data structure.” Id. at 6.
Under the first step of the Mayo/Alice framework and Step 2A of the
USPTO Guidance, we first determine to what claim 1 is directed, i.e.,
whether claim 1 recites an abstract idea and if so, whether claim 1 is directed
to that abstract idea. The Federal Circuit has explained that “the ‘directed
to’ inquiry applies a stage-one filter to claims, considered in light of the
specification, based on whether ‘their character as a whole is directed to
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excluded subject matter.’” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327,
1335 (Fed. Cir. 2016) (quoting Internet Patents Corp. v. Active Network,
Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). It asks whether the focus of the
claim is on a specific improvement in relevant technology or on a process
that itself qualifies as an “abstract idea” for which computers are invoked
merely as a tool. See Enfish, 822 F.3d at 1335–36. Here, it is clear from the
Specification, including the claim language, that claim 1 focuses on an
abstract idea, and not on any improvement to technology and/or a technical
field.
Reciting a Judicial Exception
In making this determination, we note that the Specification is titled
“Device, System, and Method for a Post Benchmark and Projection,” and is
related generally to comparing “social media posts and/or campaigns against
other social media posts and/or campaigns with similar characteristics with
the goal of benchmarking post performance against historic averages of
similar social media posts, as well as predicting future performance of social
media posts with a given set of characteristics.” Spec. ¶ 4. According to the
Specification, “a social media post may be given a score (such as a
benchmark) against similar social media posts based on a business need
(e.g., a first post may have over performed when compared to a similar,
comedic, short form, branded content, video posts for the auto industry
containing grade A social influencers).” Id. ¶ 5. The Specification further
describes that:
a previously used or past post having a known result may have
information associated therewith such that the known result may
be averaged with other known results of other previously used
posts having similar information. Thus, in a first aspect, the
exemplary embodiments provide a first mechanism in which the
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post benchmark is generated and maintained for previously used
posts. In a second aspect, the exemplary embodiments provide a
second mechanism in which the post benchmarks are used to
generate the projection for the proposed post.
Id. ¶ 11.
Consistent with this disclosure, independent claim 1 recites
“determining at least one first characteristic of the past post based on at least
one entity involved in the past post and the media content,” “determining a
first similarity index of the at least one first characteristic to at least one
second characteristic of a post benchmark, the post benchmark having
aggregated results associated therewith,” “when the similarity index is above
a first threshold, incorporating the past post with the post benchmark, the
known results being aggregated with the aggregated results,” “identifying
one of the at least one first characteristic different from any one of the at
least one second characteristic,” “and incorporating the identified one of the
at least one first characteristic into the post benchmark.” Appeal Br. 10
(Claim App.).
When considered collectively and under the broadest reasonable
interpretation, independent claim 1, as summarized above, recites identifying
characteristics and determining scores.4 This is an abstract idea which may
be characterized as a “[m]ental process[]—[a] concept performed in the
human mind (including an observation, evaluation, judgement, opinion).”
Guidance, 84 Fed. Reg. at 52; MPEP § 2106.04(a)(2)(III). This is consistent
with the Examiner’s characterization. Final Act. 4.

4 We note that “[a]n abstract idea can generally be described at different
levels of abstraction.” Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240
(Fed. Cir. 2016). The Board’s “slight revision of its abstract idea analysis
does not impact the patentability analysis.” Id. at 1241.
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The courts have held similar concepts to be abstract. For example, the
Federal Circuit has held abstract the concepts of “selecting certain
information, analyzing it using mathematical techniques, and reporting or
displaying the results of the analysis” in SAP America, Inc. v. InvestPic,
LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018), “considering historical usage
information while inputting data” in BSG Tech LLC v. Buyseasons, Inc., 899
F.3d 1281, 1287, 1289 (Fed. Cir. 2018) (“‘[S]ummary comparison usage
information’ covers any information concerning the relative frequency at
which different parameters and values have been used”), and Elec. Power
Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1351–54 (Fed. Cir. 2016) (Claim
for detecting events by receiving, detecting, analyzing, displaying,
accumulating, and updating data, and deriving a composite indicator from
that data was directed to the abstract idea of “collecting information,
analyzing it, and displaying certain results of the collection and analysis.”).
Appellant argues that claim 1 is “not directed to an abstract idea
because an improved data structure, specifically an improved metadata
taxonomy, is recited.” Appeal Br. 5; see also Reply Br. 3 (“Although the
term ‘taxonomy’ is not explicitly recited, the claims are clearly directed to a
system of classification, i.e. a taxonomy.”). However, Appellant has not
persuaded us of error with these arguments, because even if the claims recite
a method of classification, Appellant does not persuasively show that the
identifying and determining steps cannot be performed entirely in the mind,
using observation, evaluation, judgement, and opinion.
Appellant also argues, similarly, that various embodiments “create
deep metadata taxonomies,” “ingest posts and enrich the posts with
metadata,” “utilize a more granular approach relative to existing methods,”
and achieve “an incorporation of new characteristics into a post benchmark,”
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resulting in an “improved data structure.” Appeal Br. 5–6. However,
Appellant’s argument does not persuade us that the recited steps cannot be
performed entirely in the mind.
Having concluded that claim 1 recites a judicial exception, i.e., an
abstract idea, in determining whether the claim is directed to this abstract
idea, we next consider whether the claim recites additional elements that
integrate the judicial exception into a practical application.
Integration into a Practical Application
We look to whether the claim “appl[ies], rel[ies] on, or use[s] the
judicial exception in a manner that imposes a meaningful limit on the
judicial exception, such that the claim is more than a drafting effort designed
to monopolize the judicial exception,” i.e., “integrates a judicial exception
into a practical application.” Guidance, 84 Fed. Reg. at 54; MPEP
§ 2106.04(d). Here, the Examiner identifies that, in claim 1, “the additional
element of a comparison server . . . includes no more than mere instructions
to apply the exception using a generic computer component.” Final Act. 8;
see also Spec. ¶ 26 (“The comparison server 125 may include a processor
205, a memory arrangement 210, a display device 215, an input/output (I/O)
device 220, a transceiver 225, and other components 230.”); ¶ 68 (“Those
skilled in the art will understand that the above-described exemplary
embodiments may be implemented in any suitable software or hardware
configuration or combination thereof.”). We agree with the Examiner.
As is clear from the Specification, there is no indication that the
processes recited in claim 1 require any specialized computer hardware or
other inventive computer components, i.e., a particular machine, invoke any
asserted inventive programming, or that the claimed invention is
implemented using other than generic computer components to perform
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generic computer functions. See DDR Holdings, LLC v. Hotels.com, L.P.,
773 F.3d 1245, 1256 (Fed. Cir. 2014) (“[A]fter Alice, there can remain no
doubt: recitation of generic computer limitations does not make an otherwise
ineligible claim patent-eligible.”); see also Spec. ¶¶ 14–21. Independent
claim 1, unlike the claims found non-abstract in prior cases, uses generic
computer technology to receive and analyze information for the purpose of
“evaluation of identified trends” Spec. ¶ 4, and does not recite an
improvement to a particular computer technology. Cf. McRO, Inc. v. Bandai
Namco Games Am. Inc., 837 F.3d 1299, 1314–15 (Fed. Cir. 2016) (Finding
claims not abstract because they “focused on a specific asserted
improvement in computer animation.”).
Appellant argues that claim 1 recites “an improved server” that
“includes an improved metadata taxonomy,” and therefore the claims
“incorporate the alleged abstract idea into a practical application.” Appeal
Br. 8; see also Reply Br. 5.
We are not persuaded that an “improved metadata taxonomy”
integrates the abstract mental process into a “practical application.” For
example, there is no such improvement to the functioning of a computer,
another technology, or technical field. Instead, the claims reflect the
proposed improvement to the abstract idea, not in the functioning of the
computer, technological environment, or technical field, in that the
identifying and determining steps may result in an “improved metadata
taxonomy,” but this does not improve the general purpose computer’s
operations. Cf. OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363
(Fed. Cir. 2015) (Holding that claims are directed to “the abstract idea of
offer-based price optimization.”); Enfish, 822 F.3d at 1336 (Focusing on
whether the claim is “an improvement to [the] computer functionality itself,
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not on economic or other tasks for which a computer is used in its ordinary
capacity.”). See also Bridge & Post, Inc. v. Verizon Commc’ns, Inc.,
778 F. App’x 882, 893 (Fed. Cir. 2019) (“The ability to run a more efficient
advertising campaign, even if novel, and even if aided by conventional
computers, is an advance ‘entirely in the realm of abstract ideas,’ which we
have repeatedly held to be ineligible.”).
Thus, we are not persuaded of error in the Examiner’s determination
that the additional elements of claim 1 do not integrate the judicial exception
into a practical application, as the term is used in USPTO Guidance, just as
that we are not persuaded of error in the Examiner’s determination that
claim 1 is directed to an abstract idea.
Step Two of the Mayo/Alice Framework
Under the second step in the Alice framework and USTPO Guidance
Step 2B, we “[e]valuat[e] additional elements to determine whether they
amount to an inventive concept [which] requires considering them both
individually and in combination to ensure that they amount to significantly
more than the judicial exception itself.” MPEP § 2106.05(I). Here, the
Examiner determines that “the additional element [of the server] in the claim
amounts to no more than mere instructions to apply the exception using a
generic computer component,” and the additional elements of the
“‘receiving data’ steps . . . are considered routine, conventional, and well-
understood.” Final Act. 9. See also Elec. Power, 830 F.3d at 1355
(gathering, sending, monitoring, analyzing, selecting, and presenting
information does not transform the abstract process into a patent-eligible
invention); OIP Techs, 788 F.3d at 1363 (Claims reciting, inter alia, sending
messages over a network, gathering statistics, using a computerized system
to automatically determine an estimated outcome, and presenting offers to
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potential customers found to merely recite “‘well-understood, routine
conventional activit[ies],’ either by requiring conventional computer
activities or routine data-gathering steps.”) (alteration in original); SAP Am.,
898 F.3d at 1167–68 (“[S]electing certain information, analyzing it using
mathematical techniques, and reporting or displaying the results of the
analysis” were “basic functions” of a computer.).
Appellant advances no arguments relative to Step 2B. See Appeal Br.
8–9. Thus, we are not persuaded that the “additional elements” of the server
and receiving steps recite an “inventive concept” that amounts to
“significantly more” than the abstract idea. See Elec. Power, 830 F.3d
at 1355 (gathering, sending, monitoring, analyzing, selecting, and presenting
information does not transform the abstract process into a patent-eligible
invention); Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1084, 1093 (Fed.
Cir. 2019) (data gathering and displaying are well-understood, routine, and
conventional activities); OIP Techs, 788 F.3d at 1363 (claims reciting, inter
alia, sending messages over a network, gathering statistics, using a
computerized system to automatically determine an estimated outcome, and
presenting offers to potential customers found to merely recite “‘well-
understood, routine conventional activit[ies],’ either by requiring
conventional computer activities or routine data-gathering steps” (alteration
in original)).
Viewed as a whole, independent claim 1 recites a series of steps for
receiving data, determining characteristics and scores from the data, and
creating an output that is inserted into the score and data. The steps of the
method are performed by a conventional computer that merely includes
instructions to implement an abstract idea on a computer (or merely uses a
computer as a tool to perform an abstract idea). Instead of improving the
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computer or technology or technical field, independent claim 1 amounts to
nothing significantly more than an instruction to apply the abstract idea
using generic computing elements, which, under our precedents, is not
enough to transform an abstract idea into a patent-eligible invention. See
Alice, 573 U.S. at 226.
We are not persuaded, on the present record, that the Examiner erred
in rejecting independent claim 1 under 35 U.S.C. § 101. Therefore, we
sustain the Examiner’s rejection of independent claims 1 and 17, and claims
2–9, and 11–16, which fall with independent claim 1.
Claims 18 and 19
Appellant argues, without evidence, that “claim 18 further recites a
method for improving a currently proposed post in view of post benchmarks
and is not directed to an abstract idea,” and thus the “determination of an
improvement to the proposed post . . . is a technical improvement and is not
an abstract idea.” Appeal Br. 7.
We are unpersuaded, because the Examiner finds the argued steps
recite actions that can be performed mentally, as part of the abstract mental
process recited in the claim (Final Act. 7–8), and Appellant has not shown
any error in the Examiner’s finding. If there is any “improvement,”
Appellant has not shown that it is not within the abstract mental process.
Thus, we are not persuaded, on the present record, that the Examiner
erred in rejecting independent claim 18 under 35 U.S.C. § 101. Therefore,
we sustain the Examiner’s rejection of independent claim 18, and claim 19,
which depends from claim 18, because Appellant has not argued the separate
patentability of this claim.
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CONCLUSION
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–9, 11–19 101 Eligibility 1–9, 11–19
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