Ex Parte Guten et al

Patent Trial and Appeal Board

Feb 4, 2013

11146575 (P.T.A.B. Feb. 4, 2013)

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.
11/146,575 06/06/2005 Sharon M. Guten GOJ.P.132 6075
7590 02/05/2013
RAY L. WEBER
RENNER, KENNER, GRIEVE, BOBAK, TAYLOR & WEBER
400 First National Tower
Akron, OH 44308
EXAMINER
EGLOFF, PETER RICHARD
ART UNIT PAPER NUMBER
3715
MAIL DATE DELIVERY MODE
02/05/2013 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte SHARON M. GUTEN, PATRICIA A. TAYLOR,
SONIA A. ALEMAGNO, BRUCE J. VAN DEMAN,
CHRISTOPHER B. GARGOLINE, and DENNIS L. GLADIN
____________________

Appeal 2011-001630
Application 11/146,575
Technology Center 3700
____________________

Before: PHILLIP J. KAUFFMAN, BRETT C. MARTIN, and
HYUN J. JUNG, Administrative Patent Judges.

KAUFFMAN, Administrative Patent Judge.

DECISION ON APPEAL

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Application 11/146,575

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STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 9-
14 and 21. Appellants’ representative presented oral argument on January
24, 2013. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

The Invention
Appellants’ claimed invention “relates to the establishment and
maintenance of good hand hygiene practices in institutional environments.”
Spec. 1:7-9. Claim 21 is the sole independent claim on appeal, and is
reproduced below:
21. A method for institutionally effecting good hand hygiene
practices by improving usage of hand sanitizer dispensers
within an institution, comprising:
staging specific actions in a specific sequence, at specific
times and directed at specific individual, unit and organizational
levels to effect culture change regarding the use of hand
sanitizer dispensers within an institution, said stages comprising
pre-launch, launch, culture change and maintenance stages;
employing stage-matched tools appropriate to each of the
stages to obtain a desired result in each stage before proceeding
to a next sequential stage, said tools comprising education,
triggers to awareness, leadership development, engagement of
employees, feedback and reinforcement, said triggers to
awareness comprising installation of hand sanitizer dispensers
at strategic locations within the institution;
assessing the effectiveness of the actions at each stage
before proceeding to a next subsequent stage;
remaining in a given stage and undertaking the actions
thereof until the assessment of the effectiveness of such actions
satisfies a predetermined criteria;
wherein the culture change stage comprises the step of
encouraging peer influence to establish a norm in an institution
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that makes it acceptable for peers to cue each other prior to an
opportunity to use a hand sanitizer dispenser by using preset
gestures, slogans, and remarks which remind peers of the
present opportunity for adherence to a standard for hand
hygiene practices involving the use of a hand sanitizer
dispenser, and the culture change stage further comprises the
step of empowering each individual in a peer group to cue all
others within that group, regardless of role and title; and
monitoring the effectiveness of the method by assessing
usage of the hand sanitizer dispensers.

Evidence Relied Upon
NHS National Patient Safety Agency, Ready, steady, go! The full
guide to implementing the cleanyourhands campaign in your trust, 2004
(http://www.npsa.nhs.uk/cleanyourhands) (“NHS”).1
Edna K. Kretzer et al., Behavioral Interventions to Improve Infection
Control Practices, American Journal of Infection Control, Feb. 1997
(“Kretzer”).
Peter Snyder, A “Safe Hands” Hand Wash Program for Retail Food
Operations, Aug. 16, 2000 (http://www.hi-
tm.com/Documents/Safehands.html) (“Snyder”).
NHS National Patient Safety Agency, The Full Guide to Implementing
the Cleanyourhands Campaign in Your Trust, Resource 11. 2004
(http://www.npsa.nhs.uk/EasySiteWeb/GatewayLink.aspx/alld=5959)
(“Resource 11”).

1 The Examiner’s Answer incorrectly states the title of this reference, and it
is correctly identified here and in the Office Action that is the subject of this
appeal. Ans. 3; Office Action mailed Nov. 20, 2009, at 3.
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The Rejection
The rejection of claims 9-14 and 21 under 35 U.S.C. § 103(a) as
unpatentable over NHS, Kretzer, Snyder, and Resource 11 is before us on
appeal.

OPINION
Claim 212
Appellants argue that the Examiner failed to recognize that the
invention is directed to institutional culture change with regard to the usage
of hand sanitizers, and that the Examiner misconstrued the term “culture
change” in the context of the invention. Br. 8-9, 13. Further, according to
Appellants, “culture change,” as called for in claim 21 when read in light of
the disclosure, includes:
(1) shared learning and skill acquisition about how and when to
practice good hand hygiene; (2) shared values about why good
hand hygiene is important; (3) emergence of shared social
norms that tacitly shape new hand hygiene behaviors through
(a) peer modeling to comply with the new norms of good hand
hygiene and (b) peer pressure, through means such as peer-to-
peer cuing, to perform hand hygiene at appropriate times; (4)
measurement and feedback information about performance of
good hand hygiene; and (5) reinforcement of the desired hand
hygiene behaviors through leader and/or peer coaching, social
approval, and other rewards and/or incentives.
Br. 13-14.
Appellants go on to assert that “corporate culture change impacts
‘values,’ ‘beliefs,’ and ‘norms’ which influence the thoughts and actions

2 For dependent claims 11-14, Appellants rely upon the arguments for claim
21, and therefore claims 11-14 stand or fall with claim 21. See Br. 16.
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(behavior) of an organization by impacting those values, beliefs and norms
at both the individual and aggregate levels.” Br. 14.
Based upon this claim interpretation, Appellants contend that the
Examiner’s reliance on NHS is misplaced because it is not specifically
defined as a culture change program since it is incapable of effecting culture
change. See Br. 11-12; see also Br. 8.
Contrary to Appellants’ assertion, claim 21 is not directed to
institutional cultural change. Rather, independent claim 21 is directed to a
method for institutionally effecting good hand hygiene practices by
improving usage of hand sanitizers within an institution. The “culture
change stage” of claim 21 is but one of several stages within the claimed
method. The culture change stage comprises two steps: encouraging peer
influence, and empowering individuals in a peer group.3 Further, the
Specification does not provide a lexicographical definition of the claim term
“culture change stage.”
In light of this, we agree with the Examiner that Appellants’ argument
is unpersuasive because it is not commensurate in scope with claim 21. See
Ans. 10.
In addition to Appellants’ argument not being commensurate in scope
with the claimed subject matter, Appellants’ argument is unpersuasive
because it asserts that NHS does not disclose culture change as claimed

3 Specifically, claim 21 recites, “encouraging peer influence to establish a
norm in an institution that makes it acceptable for peers to cue each other
prior to an opportunity to use a hand sanitizer dispenser by using preset
gestures, slogans, and remarks which remind peers of the present
opportunity for adherence to a standard for hand hygiene practices involving
the use of a hand sanitizer dispenser, and “empowering each individual in a
peer group to cue all others within that group, regardless of role and title.”
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when the rejection is based upon a combination of the references as
disclosing the limitation at issue. See Ans. 6 (modifying NHS in view of
Snyder and Resource 11 as disclosing the culture change stage); see also In
re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) citing In re Keller,
642 F.2d 413, 425 (CCPA 1981) (one cannot show nonobviousness by
attacking references individually where the rejections are based on
combinations of references).
Appellants also argue that, “the Examiner expressly admits that NHS,
the primary reference, is substantially totally devoid of the steps of the
claimed method.” Br. 12. Appellants provide no citation to such admission
by the Examiner, nor do we locate such a statement in the Examiner’s
Answer.
Appellants argue that “the prior art has, for decades, taught away from
any methodology capable of achieving a culture change, and has repeatedly
fallen short - - because culture change was never recognized as a goal.” Br.
12. This argument is also not commensurate in scope with claim 21, which,
as explained supra, is not directed to culture change. Rather, claim 21 is a
method that includes a culture change stage comprised of two enumerated
steps. Appellants’ argument does not cogently explain how the prior art
teaches away from the two steps of the culture change stage as claimed.
Additionally, Appellants’ assertion does not point to any disclosure in any of
the references that would have led a person of ordinary skill in the art in a
direction divergent from that chosen by Appellants.
Appellants argue that “leadership development” as claimed calls for
more than “merely securing top management commitment to better hand
hygiene compliance throughout the facility.” Br. 12. Rather, according to
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Appellants, “leadership development” as claimed, calls for ongoing
management involvement. Br. 13.
Claim 21 calls for the step of applying stage-matched tools
appropriate to each of the stages to obtain a desired result including the
stage-matched tool of leadership development. Claim 21 does not specify
that leadership development includes ongoing management involvement.
Nor does the Specification provide a lexicographical definition of
“leadership development” that would incorporate such a requirement.
Consequently, we agree with the Examiner that Appellants’ argument is
unpersuasive because it is not commensurate in scope with claim 21. See
Ans. 11
Accordingly, we sustain the rejection of claim 21, and claims 11-14
fall with claim 21.

Claim 9
Claim 9 depends from claim 21 and recites, “wherein the culture
change stage comprises the steps of training and empowering peers to
recognize circumstances giving rise to the need to cue others of the
immediate need for good hand hygiene practices through the use of hand
sanitizer dispensers.”
Appellants additionally argue that with regard to the culture change
stage, Synder is as deficient as NHS, because Synder’s use of peer influence
is to punish non-compliant behavior after failure rather than to induce the
desired behavior in a supportive way before the fact. Br. 15.
Appellants’ illustration does not support their contention, because if a
person fails to use good hand hygiene followed by a cue from a peer to use
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good hand hygiene, this cue is before the fact with regard to a future
opportunity to use good hand hygiene. More importantly, we agree with the
Examiner that nothing in claim 9 requires that peers cue others before any
specified event. See Ans. 12.
As such, we sustain the rejection of claim 9.

Claim 10
Claim 10 depends from claim 21 and recites,
wherein each of the launch, culture change, and maintenance
stages comprises coaching of employees for reinforcement and
encouragement to effect behavior change and maintenance
regarding hand hygiene in association with usage of hand
sanitizer dispensers, and receiving and responding to feedback
from such employees with prepared statements and
presentations.
Appellants present two additional arguments with respect to claim 10.
First, Appellants argue that, “Kretzer simply teaches awareness building
through the use of mission statements and a desire to maintain such
awareness, but offers nothing to attain behavior modification to effect
institutional cultural change.” Br. 16. As the Examiner correctly points out,
such argument is an unpersuasive individual attack in that the rejection relies
upon a combination of Kretzer and NHS for the limitation at issue and not
upon Kretzer alone. See Ans. 12-13; see also Ans. 7-8.
Second, Appellants argue that “the Examiner has simply employed
applicants’ specification as a blueprint for a shopping list to put together
features for which there is no rational underpinning - - as the law requires.”
Br. 16. However, the Examiner proposed to combine NHS and Kretzer, “in
order to provide the additional feature of employee coaching that respects
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individuality of the employees.” Ans. 13. Appellants’ mischaracterization
that no rationale was provided fails to demonstrate error in the rationale that
was provided.
Accordingly, we sustain the rejection of claim 10.

DECISION
We affirm the Examiner’s decision to reject claims 9-14 and 21.
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

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