Ex Parte Borke et al

Patent Trial and Appeal Board

Nov 21, 2016

13291679 (P.T.A.B. Nov. 21, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/291,679 11/08/2011
115972 7590 11/23/2016
Alston & Bird and Georgia-Pacific LLC
Bank of America Plaza
101 South Tryon Street, Suite 4000
Charlotte, NC 28280-4000
FIRST NAMED INVENTOR
Brian S. Borke
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
20873US/003381/437066 4077
EXAMINER
TERRELL, EMILY C
ART UNIT PAPER NUMBER
2689
NOTIFICATION DATE DELIVERY MODE
11/23/2016 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
usptomail@alston.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRIAN S. BORKE and ANDRE LANOUETTE 1
Appeal2016-001275
Application 13/291,679
Technology Center 2600
Before BRUCE R. WINSOR, DANIEL N. FISHMAN, and
DAVID J. CUTITTA II, Administrative Patent Judges.
CUTITT A, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Non-Final
Rejection of claims 1-22. We have jurisdiction over this appeal under 35
U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 According to Appellants, the real party in interest is Georgia-Pacific
Consumer Products LP. See Appeal Brief 3.
Appeal 2016-001275
Application 13/291,679
The claimed invention relates to a zone-based hand hygiene
compliance system that monitors healthcare worker compliance with a hand
hygiene protocol. Spec. i-f 24. 2 Claims 1, 11, 13, and 17 are independent.
Claims 1 and 11 are exemplary and are reproduced below with disputed
limitations emphasized:
1. A method for performing sanitation compliance
monitoring, the method comprising:
receiving, at a computer, sanitation compliance data comprising
a zone identifier corresponding to a first device in a zone and an entity
identifier corresponding to a second device attached to a mobile entity
in the zone, the zone defined by an area over which the first device and
the second device communicate via one-way or two-way
communication, wherein the zone is one of a target zone or a sanitation
zone, the computer storing information associating each target zone
with one or more approved sanitation zones, and wherein if the zone is
a target zone, the zone does not overlap with a sanitation zone and if
the zone is a sanitation zone, the zone does not overlap with a target
zone;
determining whether the mobile entity is compliant with a
sanitation protocol associated with the zone, whereby compliance with
the sanitation protocol associated with the zone is based at least in part
on use of one of the one or more approved sanitation zones by the
mobile entity and wherein use of a sanitation zone other than one of the
one or more approved sanitation zones is not in compliance with the
sanitation protocol; and
updating a database with results of the determining.
2 Throughout this Opinion, we refer to: (1) Appellants' Specification filed
Nov. 8, 2011 ("Spec."); (2) the Non-Final Office Action ("Non-Final Act.")
mailed Apr. 9, 2015; (3) the Appeal Brief ("Appeal Br.") filed July 2, 2015;
(4) the Examiner's Answer ("Ans.") mailed Sept. 11, 2015; and (5) the
Reply Brief ("Reply Br.") filed Nov. 6, 2015.
2
Appeal 2016-001275
Application 13/291,679
11. A system for performing sanitation compliance monitoring, the
system comprising:
a sanitation station configured to accomplish a sanitation event
that meets at least one criterion, the sanitation station being at least
partially within a sanitation zone;
a mechanism to detect the sanitation event at the sanitation
station;
a user interface; and
a device comprising logic for:
detecting at least two entity identification (ID) tags within
the sanitation zone during a sanitizing event, each entity tag ID
comprising a unique tag identifier corresponding to an entity;
selecting an entity ID tag from the at least two detected
entity ID tags based at least in part on a predetermined
algorithm, wherein the predetermined algorithm is based at least
in part on an order with which the at least two entity ID tags
entered the sanitation zone;
displaying a unique tag identifier associated with the
selected entity ID tag, the displaying at the user interface;
determining whether the at least one criterion has been met
at the sanitation station; and
updating a database with results of the determining and the
tag identifier associated with the selected entity ID tag.
REFERENCES
The art relied upon by the Examiner in rejecting the claims on appeal:
Wildman et al. ("Wildman")
Hufton et al. ("Hufton")
Koblasz
Tokhtuev et al.
("Tokhtuev")
US 6,727,818 Bl
US 7 ,898,407 B2
US 8,040,245 B2
US 8,502,680 B2
3
Apr. 27, 2004
Mar. 1, 2011
Oct. 18, 2011
Aug.36,2013
Appeal 2016-001275
Application 13/291,679
REJECTIONS
Claims 1-10 and 19 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Wildman and Hufton. Non-Final Act. 3-10.
Claims 11 and 12 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Wildman and Koblasz. Non-Final Act. 10-13.
Claims 17, 18, and 20-22 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Wildman. Non-Final Act. 13-16.
Claims 13-16 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Tokhtuev and Wildman. Non-Final Act. 16-20.
Our review in this appeal is limited only to the above rejections and
issues raised by Appellants. We have not considered other possible issues
that have not been raised by Appellants and are, therefore, not before us.
See 37 C.F.R. § 41.37(c)(l)(iv) (2014).
ISSUES
1. Whether the Examiner errs in finding Wildman teaches or
suggests "use of a sanitation zone other than one of the one or more
approved sanitation zones is not in compliance with the sanitation protocol,"
as recited in claim 1?
2. Whether the Examiner errs in finding the combination of
Wildman and Koblasz teaches or suggests "selecting an entity ID tag from
the at least two detected entity ID tags based at least in part on a
predetermined algorithm, wherein the predetermined algorithm is based at
least in part on an order with which the at least two entity ID tags entered
the sanitation zone," as recited in claim 11?
4
Appeal 2016-001275
Application 13/291,679
ANALYSIS
Claim 1
The Examiner relies upon Wildman to teach or suggest the disputed
limitations of independent claim 1. Non-Final Act. 3-7. Specifically, the
Examiner relies on Wildman's disclosure of an Individual Detailed
Compliance Report, as illustrated by Wildman's Figure 13B, reproduced
below:
1:~15
12:'4-2
FIG. 13B
Wildman's Figure 13B shows a sample individual detailed
compliance report including locations and times of various hand washings
by Dr. Jon Smith. Wildman col. 2, 11. 13-14. As seen in the report, several
hand washings by Dr. Smith at various times and locations, including a
handwashing performed at location 207 and time 12:42, are indicated as
"Verified." In contrast, the hand washing at location 206 and time 12: 15 is
indicated as "Incomplete."
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Appeal 2016-001275
Application 13/291,679
The Examiner indicates that Wildman teaches Dr. Smith is not fully
compliant with the schedule "because the employee used 207 and not 206
the authorized dispenser." Non-Final Act. 5. The Examiner further states
"the employee is non-compliant regardless of utilizing the hand sanitizer
dispenser at 207, because the sanitizing station at 207 is not authorized for
sanitation compliance for 206."3 Id. The Examiner consequently interprets
Wildman's indication of hand washing event 206 as incomplete as
suggesting "wherein use of a sanitation zone other than one of the one or
more approved sanitation zones is not in compliance with the sanitation
protocol," as claimed. See Non-Final Act. 7; Ans. 7.
Appellants contend "Wildman does not provide any information
suggesting that the individual's incomplete status at location 206 is due to a
hand washing at a hand washing device other than an approved hand
washing device." Appeal Br. 13. Appellants further contend Wildman does
not discuss that the hygiene protocol requires the hand washing occur at a
specifically approved hand washing device and, thus, Wildman suggests "the
'incomplete' status of the individual at location 206 is due to the individual
not washing his hands in the allowed time frame; nothing more." Appeal
Br. 14.
We agree with Appellants that the Examiner fails to establish that
Wildman indicates location 207 is an "approved sanitation zone" and that
location 206 is "other than one or more approved sanitation zones."
3 The Examiner appears to have inadvertently switched locations 206 and
207 in this analysis, because it is actually location 206 that includes the
indication of an incomplete wash. We view this to be a typographical or
clerical error, as the Examiner indicates the locations correctly elsewhere in
the Office Action. See, e.g., Non-Final Act. 5, 11. 16-18.
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Appeal 2016-001275
Application 13/291,679
Wildman does not indicate the meaning of the term "Incomplete" in the
context of Fig. 13B. Wildman simply indicates that an unsuccessful
handwashing would occur when a caregiver uses water but not soap.
Wildman col. 8, 11. 19-21. The Examiner, therefore, does not sufficiently
substantiate the finding that Wildman suggests Dr. Smith's incomplete wash
is not compliant with the sanitation protocol because location 206 is other
than an approved sanitation zone.
Consequently, because the Examiner fails to establish that Wildman
distinguishes approved sanitation zones from other than approved sanitation
zones, the Examiner has not established Wildman teaches or suggests
"wherein use of a sanitation zone other than one of the one or more
approved sanitation zones is not in compliance with the sanitation protocol,"
as recited in claim 1.
Accordingly, because we are unable to ascertain a basis in Wildman
for the disputed findings discussed above, we are constrained to reverse the
Examiner's 35 U.S.C. § 103(a) rejection of claim 1. 4
Because we agree with at least one of the dispositive arguments
advanced by Appellants for claim 1, we need not reach the merits of
Appellants' other contentions.
We also are constrained to reverse the rejections of independent
claims 13 and 17, which recite commensurate limitations, and of dependent
claims 2-10, 14--16, and 18-22, which stand with their respective
independent claims.
4 Should there be further prosecution of this application, the Examiner may
wish to review claim 1 for compliance under 35 U.S.C. § 101 in light of the
Supreme Court Decision in Alice Corporation Pty. Ltd. v. CLS Bank Inter.,
134 S. Ct. 2347 (2014) and subsequent agency guidance.
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Appeal 2016-001275
Application 13/291,679
Claim 11
Appellants contend the Examiner errs in rejecting claim 11 because
the combination of Wildman and Koblasz does not teach or suggest
"selecting an entity ID tag from the at least two detected entity ID tags based
at least in part on a predetermined algorithm, wherein the predetermined
algorithm is based at least in part on an order with which the at least two
entity ID tags entered the sanitation zone," as recited in independent claim
11. Appeal Br. 25-27. Appellants note that "Wildman teaches that the
individual persons in a group of persons may be determined." Appeal Br.
25. But according to Appellants, Koblasz fails to cure the deficiencies of
Wildman because "Koblasz is not interested in the order in which the people
enter the room, but merely that the number of hand washings completed, as
counted by the number of soap dispenser activations, is equal to the number
of people who entered the room." Appeal Br. 26.
We are not persuaded the Examiner erred. Instead, we agree with the
Examiner that the combination of Wildman and Koblasz teaches or suggests
the disputed limitations of claim 11. As such, we adopt the Examiner's
findings and explanations provided therein. Non-Final Act. 10-13; Ans. 10-
12.
At the outset, we note because Appellants agree that Wildman teaches
that the individual persons in a group of persons may be determined or
selected, the only remaining issue is whether Koblasz teaches or suggests "a
predetermined algorithm, wherein the predetermined algorithm is based at
least in part on an order with which the at least two entity ID tags entered the
sanitation zone, as recited in independent claim 11."
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Appeal 2016-001275
Application 13/291,679
The Examiner correctly finds that Koblasz teaches mechanisms for
detecting the time of entry of each person into the room, for identifying each
person entering the room, and for identifying each person obtaining soap
from a soap dispenser. Ans. 11 (citing Koblasz col. 1, 1. 65- col. 2, 1. 7.)
Koblasz describes that "[ e ]ntry detection and identification data is used to
determine whether the person entering the room activates the soap dispenser
within an allotted amount of time after entering the room" and "a
notification that includes the identity of the person is provided ... warning
the identified person to wash his or her hands." Koblasz col. 2, 11. 3-7.
Koblasz uses floor detection devices 114A and 114B (as loops of conductive
wire or foil configured as RFID antennas) to read RFID tags inside
employees' shoes or insoles. Koblasz col. 4, 11. 7-10. We agree with the
Examiner's finding that because Koblasz tracks, using RFID tags, an
identity of and a time that each employee enters a sanitary zone and then
washes hands, Koblasz teaches or suggests a predetermined algorithm based
on an order with which the at least two entity ID tags entered the sanitation
zone.
For the reasons set forth above, we concluded Appellants have not
demonstrated Examiner error. As such, we sustain the Examiner's rejection
of claim 11 and of dependent claim 12, which Appellants do not argue
separately. See Appeal Br. 25-27.
DECISION
We affirm the Examiner's decision rejecting claims 11 and 12 under
35 U.S.C. § 103(a).
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Appeal 2016-001275
Application 13/291,679
We reverse the Examiner's decision rejecting claim 1-10 and 13-22
under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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