Ex Parte Guten et al

Patent Trial and Appeal Board

Aug 17, 2017

11146575 (P.T.A.B. Aug. 17, 2017)

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 33298/05556 6075
24024 7590 08/21/2017
Calfee, Halter & Griswold LLP
The Calfee Building
1405 East Sixth Street
Cleveland, OH 44114-1607
EXAMINER
EGLOFF, PETER RICHARD
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
08/21/2017 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):
ipdocket @ c alfee .com
wfrick @ c alfee. com
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 2015-003616
Application 11/146,575
Technology Center 3700
Before PATRICK R. SCANLON, BEVERLY M. BUNTING, and
GORDON D. KINDER, Administrative Patent Judges.
KINDER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants1 appeal under 35 U.S.C. § 134(a) from a rejection of
claims 9—14 and 21. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 We are informed the real party in interest in this matter is GOJO Industries,
Inc. Appeal Br. 2 (Sept. 5, 2014); Reply Br. 2 (Jan. 27. 2015).
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Application 11/146,575
CLAIMED SUBJECT MATTER
The claims are directed to a method for institutionally effecting hand
hygiene practices. Claim 21 is the only independent claim and is reproduced
below to illustrate the claimed subject matter:
21. A method for effecting institutional culture change
regarding good hand hygiene practices through the timely and
effective use 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 said staging specific actions further comprises the
step of 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
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.
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Appeal Br. 24—25 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
The UK National Health Service (NHS) National Patient Safety
Agency publication “Ready, Steady, Go! The full guide to implementing
the cleanyourhands campaign in your trust”, (2004) hereinafter referred to as
NHS;
Edna K. Kretzer and Elaine L. Larson, "Behavioral interventions to
improve infection control practices", Am J. Infect Control, Vol 26(3)
June 1998, hereinafter referred to as Kretzer;
0. Peter Snyder "A 'Safe Hands' Hand Wash Program For Retail Food
Operations", August 16, 2000 (http://www.hi-
tm.com/Documents/Safehands.html) hereinafter referred to as Snyder;
The NPSA (National Patient Safety Agency) cleanyourhands
campaign "Resource 11, Making Patient Involvement Happen", hereinafter
referred to as Resource 11.
REJECTIONS
1. Claims 9—14 and 21 are rejected under 35 U.S.C. § 101 because the
claimed invention is directed to non-statutory subject matter.
II. Claims 9—14 and 21 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over NHS in view of Kretzer, Snyder, and Resource 11.
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OPINION
Rejection I
The Examiner’s Answer enters a New Ground of Rejection finding
that independent claim 21 and all the dependent claims cover subject matter
that is not eligible for protection under 35 U.S.C. § 101. Ans. 7—8.
Appellants argue claims 9—14 and 21 as a group. Reply 2—3. We select
claim 21 as representative, and the remaining claims stand or fall with claim
21. 37 C.F.R. § 41.37 (c)(l)(iv).
Appellants contend that claim 21 recites specific features that are not
abstract ideas, specifically "the use of hand sanitizer dispensers within an
institution," the "installation of hand sanitizer dispensers at strategic
locations within the institution," "adherence to a standard for hand hygiene
practices involving the use of a hand sanitizer dispensers," and "monitoring
the effectiveness of the method by assessing usage of the hand sanitizer
dispensers." Reply 2—3.
The Examiner finds that the pending claims recite ineligible subject
matter because they: (1) are directed to the abstract idea of effecting
institutional culture change regarding good hand hygiene practices within an
institution, which is a method of organizing human activities;2 and (2) are
non-inventive because the recited steps, including the placement and
monitoring of hand sanitizer dispensers, are merely abstract ideas which
could be carried out entirely by the human mind. Ans. 8. “Viewed as a
whole, these additional claim elements [i.e., placement and monitoring of
2 See Judge Dyk’s concurring opinion in In Re Bilski finding that historically
methods of organizing human behavior were not patentable. In re Bilski,
545 F.3d 943, 976 (Fed. Cir. 2008), aff’d sub nom. Bilski v. Kappos, 130 S.
Ct. 3218 (2010).
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hand sanitizer dispensers] do not provide meaningful limitations to
transform the abstract idea into a patent eligible application of the abstract
idea such that the claims amount to significantly more than the abstract idea
itself.” Id. We agree.
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101. The
Supreme Court, however, has long interpreted § 101 to include implicit
exceptions: “[l]aws of nature, natural phenomena, and abstract ideas” are not
patentable. Alice Corp. Pty. Ltd. v. CLS Banklnt’l, 134 S. Ct. 2347, 2354
(2014). Alice, in affirming the Federal Circuit, held that claims that amount
to nothing significantly more than instruction to apply an abstract idea are
not patent eligible. SeeAriosa Diagnostics, Inc. v. Sequenom, Inc., 809 F.
3d 1282, 1285 (Lourie, J. concurring). In determining whether a claim falls
within the abstract ideas exception, we are guided in our analysis by the
Supreme Court’s two-step framework, described in Mayo and Alice. Id. at
2355 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct.
1289, 1296—97 (2012)). See also Affinity Labs of Tex., LLCv. DIRECTV,
LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (referring to step one as the
“abstract idea” step and step two as the “inventive concept” step).
In accordance with step one of that framework, we first determine
whether the claim is “directed to” a patent-ineligible abstract idea. See
Alice, 134 S. Ct. at 2356. We evaluate “the focus of the claimed advance
over the prior art to determine if the claim’s character as a whole is directed
to excluded subject matter.” Affinity Labs, 838 F.3d at 1257 (internal
quotation marks omitted). “[W]hen considering claims purportedly directed
to ‘an improvement of computer functionality,’ we ‘ask whether the focus of
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the claims is on the specific asserted improvement in computer
capabilities ... or, instead, on a process that qualifies as an ‘abstract idea’
for which computers are invoked merely as a tool.” Smartflash LLC v.
Apple, Inc., No. 2016-1059, 2017 WL 786431, at 4 (Fed. Cir. Mar. 1, 2017)
(quoting Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335—36 (Fed. Cir.
2016)).
Here, Appellants describe the invention as
a method for institutionally effecting hand hygiene practices in
association with usage of hand sanitizer dispensers, and wherein
the various steps of the invention are directly tied to the
implementation and use of hand sanitizer dispensers and to the
monitoring of their usage in association with the various claimed
steps for achieving institutional-wide [sic] culture change.
Reply Br. 3. Despite the association of the method with machines, i.e.,
sanitizer dispensers, the dispensers are not otherwise used in the method or
controlled by the method in the same sense, for example, that the rubber
curing machine was controlled in Diamond v. Diehr, 450 U.S. 175 (1981).
According to claim 21, the sanitizer dispensers are “employ[ed]” as “triggers
too awareness” but they are not claimed to produce a tangible product or
article, nor is there any post-solution activity beyond “monitoring the
effectiveness of the method.” For these reasons, we are not persuaded by
Appellants’ argument that claim 21 is tied to sanitizer dispensers within an
institution and so not directed to an abstract idea. Instead, we find that the
claims are directed to effecting a change in institutional hand hygiene
culture, and that the use of a hand sanitizer is incidental to effecting this
cultural change.
Having determined that independent claim 21 is directed to effecting a
change in institutional hand hygiene culture, we now assess whether this is
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an abstract idea. Appellants define culture as “the way we do things around
here.” Appeal Br. 14—15 (quoting Declaration of Sharon M. Guten
(hereinafter Guten) 19, Exhibit A to Appeal Br.). “Culture change on an
institutional basis therefor ‘requires a change in the social norms of that
institution that guide behavior therein.’” Id. at 15 (quoting Guten 19).
Social norms are, almost by definition, abstract standards of behavior.
In Alice, the Supreme Court explained that. . . “method[s] of organizing
human activity” are not patent-eligible because they are abstract ideas. 134
S. Ct. at 2356-57. Therefore, we conclude claim 21 is directed to the patent-
ineligible concept of effecting a change in institutional hand hygiene culture,
an abstract idea.
Having determined that the claim is “directed to” a patent-ineligible
abstract idea, we consider the elements of the claim under step two—both
individually and as an ordered combination—to assess whether the
additional elements transform the nature of the claim into a patent-eligible
application of the abstract idea. Alice, 134 S. Ct. at 2355. This is a search
for an “inventive concept”—an element or combination of elements
sufficient to ensure that the claim amounts to “significantly more” than the
abstract idea itself. Id.
Claim 21 calls for “staging specific actions ...” (“staging step”)
“remaining in a given stage ...” (“remaining step”), “encouraging [and]
empowering ...” (“encouraging step”), and “monitoring ...” (“monitoring
step”). Appeal Br. 24—25 (Claims App.) The staging step, remaining step,
encouraging step, and monitoring step are each, individually, abstract ideas;
they lack any concrete connection to the physical world but instead are
directed to methods of organizing human behavior, a hallmark of non-
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patentable subject matter. Alice, 134 S. Ct. at 2356-57, In re Bilski, 545 F.3d
943, 976 (Fed. Cir. 2008), affd sub nom. Bilski v. Kappos, 130 S. Ct. 3218
(2010).
Claim 21 also recites “employing stage-matched tools . . . comprising
. . . triggers to awareness . . . comprising installation of hand sanitizer
dispensers” (“employing stage-matched tools step”). Appeal Br. 24 (Claims
App.). We construe the employing stage-matched tools step as reciting hand
sanitizer dispensers, not for what they do, but rather for the purpose of
triggering individual awareness regarding the use of hand sanitizer
dispensers within the institution, a step which is carried out entirely by the
human mind. “Triggering awareness” is like the “informing” step in King
Pharmaceuticals, Inc. v. Eon Labs, Inc., 616 F.3d 1267 (Fed. Cir. 2010).
There the court said:
The specific question before us is whether an otherwise
anticipated method claim becomes patentable because it includes
the step of “informing” someone about the existence of an
inherent property of that method. We hold it does not. The
“informing” limitation adds no novelty to the method, which is
otherwise anticipated by the prior art.”
Id. at 1278. Accordingly, “triggering awareness” does not make an
otherwise obvious method claim patentable.
Further, the recitation of hand sanitizer dispensers is like the playing
cards in In re Smith, 815 F.3d 816 (Fed. Cir. 2016). Smith involved a set of
rules for a card game which the court found was directed to an abstract idea.
Id. at 819. Applying step two of Alice, the court found that the claim’s steps
of shuffling and dealing playing cards were purely conventional activities
which were insufficient to transform the claimed subject matter into a
patent-eligible application of the abstract idea. Id. Appellants’ dispensers
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are like the playing cards of Smith, themselves entirely conventional and
used (by dispensing hand sanitizer) in a conventional way. Appending
purely conventional steps to an abstract idea does not supply a sufficiently
inventive concept. Alice, 134 S. Ct. at 2357, Mayo, 132 S.Ct. at 1294, 1298.
Although the employing stage-matched tools step involves tangible
components, the components are conventional and used in a conventional
manner. See Mayo, 132 S. Ct. at 1300 (“[S]imply appending conventional
steps, specified at a high level of generality” cannot make abstract ideas
patentable.).
Appellants argue that other limitations in claim 21 are “hardly abstract
ideas,” specifically, “the use of hand sanitizer dispensers within an
institution,” “adherence to a standard for hand hygiene practices involving
the use of a hand sanitizer dispensers,” and “monitoring the effectiveness of
the method by assessing usage of the hand sanitizer dispensers.” Reply 2—
3. When considered in their full context, these limitations are in fact merely
abstract concepts carried out entirely by the human mind. For example, as
discussed above, we find that “the use of hand sanitizer dispensers within an
institution” is, on its face, an abstract idea. Moreover, claim 21 recites
“staging specific actions ... to effect culture change regarding the use of
hand sanitizer dispensers within an institution.” Appeal Br. 24 (Claims
App.) This context, fuller than that quoted by Appellants, emphasizes the
abstract nature of the claimed “use” and the fact that the hoped-for use is a
model for human behavior. “[AJdherence to a standard for hand hygiene
practices involving the use of a hand sanitizer dispenser” is an equally
abstract model for human behavior {id. at 25) because it is carried out
entirely by the human mind. “Monitoring the effectiveness of the method by
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assessing usage of the hand sanitizer dispensers” {id.) is an entirely mental,
and therefore abstract, concept. We note that hand sanitizer dispensers
themselves are not affirmatively claimed, nor is the step of installing the
hand sanitizer dispensers claimed. Instead, hand sanitizer dispensers are
invoked “merely as a tool.” Smartflash, supra. Accordingly, we find that the
additional elements of the claim do not add subject matter that would cause
the subject matter to be patent-eligible.
We find claim 21 is “directed to” the patent-ineligible abstract idea of
effecting a change in institutional hand hygiene culture and that the
additional elements do not transform the nature of the claim into a patent-
eligible application of the abstract idea. Alice, 134 S. Ct. at 2355. Adding
ideas that are themselves abstract (“the use of hand sanitizer dispensers,”
“adherence to a standard,” and “monitoring the effectiveness of the method
of assessing usage of the hand sanitizer dispensers” (Appeal Br. 24—25
(Claims App.) emphasis added) does not change the inventive concept so
that claim 21 amounts to “significantly more” than the abstract idea itself.
Alice, 134 S. Ct. at 2355.
For the above reasons, we find claim 21 is directed to subject matter
not eligible for a patent under 35 U.S.C. § 101, and we affirm the
Examiner’s rejection of claim 21 on this basis. Claims 9—14 fall with claim
21.
Rejection II
Claim 21
The Final Action rejected all the pending claims as obvious over
various combinations of the prior art. Final Act. 2—8; Ans. 2—7. In assessing
obviousness, prior art references are not read in isolation. An appellant
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cannot show nonobviousness by attacking references individually where the
rejections are based on combinations of references. See In re Keller, 642
F.2d 413, 426 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986). Despite a lengthy presentation addressing claim 21, Appellants
do not identify a single step or limitation in claim 21 that is not met by the
combination of prior art teachings which the Examiner found rendered claim
21 obvious. See Appeal Br. 6—17. Instead, Appellants argue that the prior
art does not teach “culture change.”
Appellants’ arguments in this regard do not persuade us that teaching
culture change vel non is enough to distinguish the claimed subject matter
from the prior art. The term “culture change” appears in the preamble of
claim 21 (“A method for effecting . . . culture change”). Presumably
“culture change is effected by practicing the steps recited following
“comprising.” Appeal Br. 24 (Claims App.). “In general, a preamble limits
the invention if it recites essential structure or steps, or if it is ‘necessary to
give life, meaning, and vitality’ to the claim. Catalina Marketing Int 7, Inc.
v. Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed. Cir. 2002) (quoting Pitney
Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305 (Fed. Cir. 1999)).
The reverse is also true. A preamble is not a claim limitation if the claim
body “defines a structurally complete invention . . . and uses the preamble
only to state a purpose or intended use for the invention.” Rowe v. Dror, 112
F.3d 473, 478 (Fed. Cir. 1997). Even when the culture change is limited to
effecting a change in hand hygiene habits, no steps of the method are limited
or dependent on the preamble for life, meaning, or vitality. The preamble is
merely a statement of purpose.
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“Culture change” also appears in the staging step (“staging . . . actions
... to effect culture change . . ., said stages comprising ... [a] culture
change [stage]”). These recitations are no more than a statement of a hoped
for result, and, like a statement of intended use, are not given weight. See
Minton v. Nat’l Ass’n of Securities Dealers, Inc., 336 F.3d 1373, 1381 (Fed.
Cir. 2003) (“A whereby clause in a method claim is not given weight when it
simply expresses the intended result of a process step positively recited.”)
Thus, whether in the preamble or in the staging step, we give little patentable
weight to the phrase “culture change” per se.
Essentially, Appellants contend that if the steps recited in the body of
the claim are performed, “culture change” will necessarily follow, whether
by that name or some other. Arguments that merely contend that the prior
art references alone, or even in the proposed combination, do not effect
culture change, do not address expressly whether or not the combination of
steps the Examiner found obvious meets the steps defined by claim 21.
For example, the Examiner cited Kretzer for teaching the concept of a
maintenance stage in hand hygiene behavior. Final Act. 4. Guten discusses
Kretzer, and makes two distinctions. Guten 115. Guten argues first that
Kretzer ignores the essential role of goal setting, monitoring, giving
feedback, and coaching toward higher performance. Id. Accordingly, Guten
argues “Kretzer is limited to micro-individual attitudes, beliefs, values, [and]
emotions as drivers of behavior change.” Id. Second, Guten argues Kretzer
includes the Transtheoretical Model (Stages of Change). Id. The present
application, by contrast, “takes the innovative leap by extrapolating the
individual readiness concept of [the] Transtheoretical Model and applying it
to organizational readiness stages.” Id. Both of Guten’s arguments
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distinguishing Kretzer are not convincing because they fail to address the
Examiner’s finding that “[i]t would have been obvious to one skilled in the
art to modify the teachings of NHS by adding the use of a maintenance
stage, taught by Kretzer, with the motivation of ensuring continued
compliance.” Final Act. 4.
The Examiner cited Snyder for disclosing “the feature of encouraging
employees to say something to other employees when they see a hazardous
act or situation regarding hand hygiene.” Final Act. 5. The Examiner
concluded that it would have been obvious
to try encouraging staff to alert others of any role and title prior
to an opportunity for good hygiene practice, since such a
modification would have been one of a finite number of
identified, predictable solutions, with a reasonable expectation of
success. It further would have been obvious to one skilled in the
art at the time of the invention to modify the teachings of NHS
and Kretzer by adding this feature, with the motivation of helping
staff to encourage each other in achieving better hand hygiene.
Id. at 5. Appellants distinguish Snyder on the grounds that “Snyder is
replete with the use of reprimands ... to achieve the desired goal. Such
harsh reprimands are inconsistent with [the] nuanced multimodal strategy as
advocated by the claimed invention of the application and the claimed
cueing activity.” Guten 113; see also Appeal Br. 16.3 Appellants’
arguments are not persuasive because they do not address the Examiner’s
conclusion, nor do they identify any claim language which would support
3 As discussed below, we disagree with Appellants’ characterization of
Snyder, which contains many more descriptions of positive feedback and
rewards for effective, prophylactic hand hygiene than it does of reprimands
and firing for lapses.
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the conclusion that harsh reprimands are inconsistent with the claimed
method steps.
The Examiner made similar findings in connection with the Resource
11 reference and used it to reach the above conclusion. Final Act. 5.
Appellants distinguish Resource 11 on the ground that it encourages
patients, not hospital employees, to address their caregivers’ hand hygiene.
The Appellants assert, by contrast, “our invention resets the social norms
necessary to advance better hand hygiene task performance in the
institution.” Guten 114; see also Appeal Br. 17. Again, Appellants do not
address specific claim language, nor do they address the findings made by
the Examiner.
In yet another example, in Appellants’ Reply Brief they argue that
NHS does not teach culture change because it does not include a
maintenance stage. Reply Br. 4. This argument is not convincing because it
fails to acknowledge that the Examiner cited Kretzer for its teaching of a
maintenance stage and concluded that it would have been obvious to add
Kretzer’s maintenance stage to NHS. Final Act. 4.
Because Appellants focus their argument on the preamble of claim 21
and its desired result, and because Appellants do not address the specific
findings of the Examiner nor point to claim language that distinguishes their
method from the combination proposed by the Examiner, we are not
persuaded by the Appellants’ argument that the Examiner erred in rejecting
claim 21.
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Claims 11—14
Appellants make no separate argument for claims 11 through 14.
Appeal Br. 19. In view of our conclusions in connection with claim 21, we
are not persuaded the Examiner erred in rejecting claims 11—14.
Claim 9
Claim 9 depends from claim 21, adding that “staging specific actions
further 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.”
Appeal Br. 22 (Claims App.). The Examiner finds that the subject matter
added by claim 9 is disclosed in Snyder and that it would have been obvious
“to modify the teachings of NHS by adding the step of conditioning peers to
recognize when they need to cue others of the need to wash their hands.”
Final Act. 6. Appellants argue that the peer influence in Snyder is used to
punish noncompliant behavior after failure. “Importantly, Snyder is replete
with the use of reprimands-all the way up to firing-to achieve the desired
goal.” Guten 113. By contrast, according to Appellants, the claimed peer
cueing is to induce behavior before the fact. Appeal Br. 18.
Contrary to Appellants’ reading, our review of Snyder reveals that
Snyder suggests rewarding the desired behavior after the fact and constant
training which by its nature is before the fact. For example, Snyder
discloses that (1) “[ejmployees are given positive reinforcement and in-
service training so that handwashing technique improves and the
handwashing procedure becomes habitual” (Snyder, p.l); (2) “[t]he purpose
of this paper is to discuss critical issues in hand washing and present the
most effective protocol to assure ‘safe hands’ for food production,
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preparation and service personnel. This protocol is the double hand wash
that specifies the use of a fingernail brush during the first wash” (id. at 3);
(3) “[rjeffesher training should be given to all employees twice a year” (id.
at 21); and (4) “[d]uring operations, persons-in-charge should watch
employees, catch them washing their hands correctly, and compliment them.
It takes constant positive reinforcement to make hand washing a habit” (id.).
Snyder suggests the institution:
Measure, Coach, and Feedback
a. Regular employee safety assurance committee meetings
must be held. Use employee suggestions and improve the
safe hand washing process. Keep employees informed
about how many days of 100% hand washing have
transpired.
b. Coach employees to constantly improve their safety
performance.
c. Plan and implement improved procedures and goals. Go
back to Plan for Prevention (the first step in the QA cycle)
and improve your operating procedures.
When this simple quality assurance cycle is followed, safe hand
washing will be assured.
Id.
A successful program requires a committed manager. If
management is not concerned about hand washing, employees
will not be concerned. Recognition should be given to
employees who adhere to personal hygiene principles. There
must be reprimands for those who ignore or forget hand washing
policies. Management must view the problem in the same
manner as stealing cash or purposely hurting a customer. If
employees continue to disregard hand washing procedures after
being trained, they must be dismissed.
Id. at 22. The immediately above quoted paragraph is the only mention we
can find of dismissing an employee or reprimanding an employee. The
overall impression we take away from Snyder is that these actions are a last
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resort and that training, rewards, and positive reinforcement are the chief
tools for making effective hand washing habitual. In light of the entire
teaching of Snyder, we conclude that Snyder teaches before-the-fact hand
hygiene, and we find Appellant’s argument that Snyder does not teach
prophylactic hand washing, unpersuasive. Accordingly, we are not
persuaded that the Examiner erred in rejecting claim 9.
Claim 10
Claim 10 depends from claim 21, adding that each stage “comprises
coaching of employees for reinforcement and encouragement to effect
behavior change and maintenance regarding hand hygiene . . . and receiving
and responding to feedback from such employees with prepared statements
and presentations.” Appeal Br. 23 (Claims App.). The Examiner finds that
Kretzer discloses coaching employees and further that Snyder discloses the
step of responding to feedback from employees with prepared statements
and presentations, citing Kretzer, BACKGROUND, paragraph 5, and
Snyder, page 20, respectively. Ans. 5. Appellants challenge only the
applicability of Kretzer, and do not mention Snyder in their argument
concerning claim 10. See generally Appeal Br. 18—19. In distinguishing
Kretzer, Appellants argue, “[0]ne would not seek guidance from Kretzer,
which is directed merely to changing individuals, not institutions. 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 affect institutional cultural change.” Id. at 19.
We need not consider whether Appellants have accurately
characterized Kretzer, for Snyder, in the passages quoted above, and
elsewhere, clearly describes the steps necessary to change collective
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behavior and to maintain those changes. Specifically, Snyder directly
addresses the features asserted missing from Kretzer, such as “goal-setting,
monitoring, giving feedback, and coaching toward higher performance”
(Appeal Br. 19). For example, Snyder recommends “Plan and implement
improved procedures and goals” (Snyder, p. 21), “Keep employees
informed about how many days of 100% hand washing have transpired”
{id.), “It takes constant positive reinforcement to make hand washing a
habit” {id.), and “Coach employees to constantly improve their safety
performance” {id). Appellants do not address Snyder in their Appeal Brief
concerning claim 10. Appeal Br. 18—19. Snyder teaches how to change “the
way we do things around here,” (Appellants’ definition of institutional
culture change; see Guten || 9, 15, Appeal Br. 20) and so is directed to
institutional culture change. Because Snyder meets the deficiencies alleged
by Appellants to be found in Kretzer, we are not persuaded by Appellant’s
arguments and evidence that the Examiner erred in rejecting claim 10.
DECISION
The Examiner’s rejection of claims 11—14 and 21 is affirmed.
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)(l)(iv).
AFFIRMED
18