Hytera Communications Co. Ltd. v. Motorola Solutions, Inc.

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HYTERA COMMUNICATIONS CO. LTD.,
Appellant
v.
MOTOROLA SOLUTIONS, INC.,
Appellee
ANDREI IANCU, UNDER SECRETARY OF
COMMERCE FOR INTELLECTUAL PROPERTY
AND DIRECTOR OF THE UNITED STATES
PATENT AND TRADEMARK OFFICE,
Intervenor
______________________
2019-2124
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2017-
02183.
______________________
Decided: January 19, 2021
______________________
TODD ROBERTS TUCKER, Calfee, Halter & Griswold
LLP, Cleveland, OH, for appellant. Also represented by
K YLE TIMOTHY D EIGHAN , JOSHUA FRIEDMAN , Y IZHOU LIU ,
M ARK M C D OUGALL, JOSHUA M ICHAEL RYLAND .
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JOHN C. O'Q UINN , Kirkland & Ellis LLP, Washington,
DC, for appellee. Also represented by HANNAH LAUREN
BEDARD , J ASON M. WILCOX; M ICHAEL W. D E VRIES , Y IMENG
D OU , BENJAMIN A. H ERBERT, Los Angeles, CA; AKSHAY S.
D EORAS , New York, NY; ADAM R. A LPER, San Francisco,
CA.
M ONICA BARNES LATEEF, Office of the Solicitor, United
States Patent and Trademark Office, Alexandria, VA, for
intervenor. Also represented by THOMAS W. K RAUSE,
FARHEENA Y ASMEEN RASHEED .
______________________
Before N EWMAN , LOURIE, and H UGHES , Circuit Judges.
LOURIE , Circuit Judge.
Hytera Communications Co. Ltd. (“Hytera”) appeals
from the final written decision of the Patent Trial and Ap-
peal Board (“Board”) holding that claims 7 and 8 of U.S.
Patent 8,279,991 (the “’991 patent”) are not unpatentable.
Hytera Commc’ns Co. Ltd. v. Motorola Sols., Inc., No.
IPR2017-02183, 2019 WL 2098197 (P.T.A.B. May 13, 2019)
(“Decision”). For the following reasons, we affirm.
BACKGROUND
Motorola Solutions, Inc. (“Motorola”) owns the ’991 pa-
tent, which is directed to a method for efficiently synchro-
nizing to a desired timeslot in a time division multiple
access (“TDMA”) communication system. We begin with a
brief introduction to TDMA, as explained in the ’991 patent
and the prior art.
TDMA refers to a method of dividing a frequency band
in a communications system into multiple channels. In a
TDMA system, a frequency band is divided into a series of
recurring periods of time, which are called “frames.” The
frames are further divided into multiple time intervals,
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the signal information is a “TDMA Channel (TC) bit” that
is transmitted between timeslots and “informs the receiv-
ing device whether the next timeslot to be received is
timeslot 1 or timeslot 2.” ’991 patent col. 1 ll. 41–44. As
another example, the ANSI/TIA 136 standard2 utilizes syn-
chronization patterns embedded in the signal during each
timeslot to indicate the timeslot number. See, e.g., J.A.
1642 col. 1 l. 31–col. 2. l. 9.
The ’991 patent purports to disclose a novel synchroni-
zation method that overcomes inefficiencies in the prior
art, including unreliable and time-consuming decoding of
non-unique synchronization patterns as well as logjams
created when each radio can only communicate on its as-
signed timeslot. See ’991 patent col. 1 l. 56–col. 2 l. 24. To
solve those inefficiencies, the ’991 patent discloses methods
that use mutually exclusive synchronization patterns that
identify the timeslot and its source and/or payload type,
and allow transmission in an alternate timeslot when the
preferred timeslot is unavailable. Id. at col. 3 ll. 13–37, col.
3 l. 58–col. 4 l. 19, col. 5 ll. 24–30, col. 9 ll. 33–60. Thus,
unlike in the ETSI-DMR or ANSI/TIA 136 standards, if a
radio is ready to communicate but its assigned timeslot is
busy, the radio can synchronize with a different timeslot
and transmit. See id. at col. 9 l. 33–col. 10 l. 40.
Hytera filed a petition for inter partes review of
claims 7 and 8 of the ’991 patent, which recite:
7. In a time division multiple access (TDMA)
system having a plurality of timeslots, a method
comprises the steps of:
knowing a first set of synchronization patterns
associated with a desired timeslot and a sec-
ond set of synchronization patterns
2 “ANSI/TIA” refers to American National Standards
Institute/Telecommunications Industry Association.
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associated with each of the other timeslots in
the TDMA system, wherein the first set of
synchronization patterns is mutually exclu-
sive from the second set of synchronization
patterns, and each set comprising at least
two different synchronization patterns as a
function of at least one of a payload type and
a source of the transmission;
preparing to transmit a particular payload type
in a timeslot;
determining whether the timeslot is a current
desired timeslot for the TDMA system;
if the timeslot is the current desired timeslot, se-
lecting a synchronization pattern selected
from the first set of synchronization patterns
based on the one of the particular payload
type and a particular source of the transmis-
sion; otherwise selecting a synchronization
pattern selected from the second set of syn-
chronization patterns based on the one of the
particular payload type and the particular
source of the transmission; and
transmitting a burst in the timeslot having em-
bedded the synchronization pattern that was
selected.
8. The method of claim 7 wherein the current
desired timeslot at a first time is different than the
current desired timeslot at a second time.
’991 patent col. 17 ll. 36–63. In three grounds in its peti-
tion, Hytera contended that claims 7 and 8 are unpatenta-
ble as obvious over: (1) U.S. Patent 5,761,211
(“Yamaguchi”) in combination with the ETSI TS 102 361-1
v1.1.1 standard (“ETSI”) and U.S. Patent 6,452,991
(“Zak”); (2) ETSI in combination with Zak; and (3) Yama-
guchi in combination with U.S. Patent Pub. 2006/0013188
(“Wiatrowski”) and Zak. After instituting trial on all three
grounds, the Board concluded in its final written decision
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that Hytera failed to show by a preponderance of the evi-
dence that claims 7 and 8 are unpatentable. Decision, 2019
WL 2098197, at *1. Hytera appealed and we have jurisdic-
tion under 28 U.S.C. § 1295(a)(4)(A).
D ISCUSSION
We review the Board’s legal determinations de novo, In
re Elsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), but we re-
view the Board’s factual findings underlying those deter-
minations for substantial evidence, In re Gartside, 203 F.3d
1305, 1316 (Fed. Cir. 2000). A finding is supported by sub-
stantial evidence if a reasonable mind might accept the ev-
idence as adequate to support the finding. Consol. Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938). “If two ‘inconsistent
conclusions may reasonably be drawn from the evidence in
record, the PTAB’s decision to favor one conclusion over the
other is the epitome of a decision that must be sustained
upon review for substantial evidence.’” Elbit Sys. of Am.,
LLC v. Thales Visionix, Inc., 881 F.3d 1354, 1356 (Fed. Cir.
2018) (quoting In re Cree, Inc., 818 F.3d 694, 701 (Fed. Cir.
2016) (internal brackets omitted)).
Hytera raises four challenges on appeal. First, Hytera
contends that the Board improperly imported an “alternate
timeslot” limitation into claim 7. Second, Hytera contends
that the Board acted contrary to precedent by requiring
that the prior art teach both cases of a conditional claim
limitation. Third, Hytera contends that the Board erred by
requiring the claimed method steps to be performed in the
order they are written. And fourth, Hytera contends that
the Board mistakenly found evidence of copying as a sec-
ondary consideration of nonobviousness. We address Hyt-
era’s challenges in turn.
I
Hytera’s first challenge is based on the Board’s inter-
pretation of claim 7 as requiring “transmitting on an alter-
nate timeslot.” See Decision, 2019 WL 2098197, at *10.
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Hytera argues that the Board expressly acknowledged that
“the claims and specification do not explicitly refer to an
alternate timeslot,” see id., yet the Board imported that re-
quirement anyway. Hytera contends that the Board com-
mitted reversible error by importing that unclaimed
limitation into claim 7.
We note that the Board’s interpretation of the claim as
including an “alternate timeslot” was based on Hytera’s
own contentions in its petition that Zak teaches transmit-
ting on an alternate timeslot. Id. (citing Hytera’s petition).
The Board was not wrong to hold Hytera to the position it
took in the petition; indeed, it would have been improper
for the Board to allow Hytera to change its arguments in
its reply brief. See 37 C.F.R. § 42.23(b) (“All arguments for
the relief requested in a motion must be made in the mo-
tion. A reply may only respond to arguments raised in the
corresponding opposition, patent owner preliminary re-
sponse, or patent owner response.”); Intelligent Bio-Sys-
tems, Inc. v. Illumina Cambridge, Ltd., 821 F.3d 1359, 1369
(Fed. Cir. 2016).
In any event, we agree with the Board’s interpretation
of the claim. While the term “alternate timeslot” may be
inelegant due to that term’s absence from the ’991 patent,
the plain language of the claim distinguishes between “a
desired timeslot” versus “the other timeslots.” ’991 patent
col. 17 ll. 39–41. The Board’s choice of what to call one of
those other timeslots was a matter of semantics, which is
demonstrated by the Board’s explicit explanation that “al-
ternate timeslot” simply refers to “a timeslot that is not an
assigned timeslot.” Decision, 2019 WL 2098197, at *10.
Regardless what such a timeslot is called, the claim plainly
requires that it exist in the system.
We also find no error in the Board’s determination that
the claim requires “transmitting” in the alternate timeslot.
Although Hytera argues that the prior art need not teach
both conditions of the “selecting” limitation in order to
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render the claim obvious—which is an argument that we
address separately below—Hytera cannot dispute that the
“transmitting” limitation of the claim requires transmit-
ting in whichever timeslot is selected. If the alternate
timeslot is selected, the claim expressly requires transmit-
ting a burst in that selected timeslot. ’991 patent col. 17
ll. 59–60. We therefore are not persuaded by Hytera’s con-
tention that the Board erroneously imported an “alternate
timeslot” limitation into the claims.
II
Hytera’s second challenge focuses on the “selecting”
limitation in claim 7. The “selecting” limitation is written
in conditional language, with two alternative conditions
and corresponding responses:
if the timeslot is the current desired timeslot, se-
lecting a synchronization pattern selected from the
first set of synchronization patterns based on the
one of the particular payload type and a particular
source of the transmission; otherwise selecting a
synchronization pattern selected from the second
set of synchronization patterns based on the one of
the particular payload type and the particular
source of the transmission;
’991 patent col. 17 ll. 51–58 (emphases added). Hytera ar-
gues that, to render the claim obvious, the prior art need
only teach one condition and its corresponding response.
But that argument does not square with our precedent in
Lincoln Nat’l Life Ins. Co. v. Transamerica Life Ins. Co.,
609 F.3d 1364 (Fed. Cir. 2010).
In Lincoln, step (e) in a method claim recited “periodi-
cally paying the scheduled payment to the owner for the
period of benefit payments, even if the account value is ex-
hausted before all payments have been made.” Id. at 1366.
The patent owner argued that the “even if” clause was con-
ditional and thus “need not be performed unless account
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exhaustion occurs.” Id. at 1370. We rejected that argu-
ment, and we held that:
Lincoln was required to prove that Transamerica’s
computerized system is configured to make pay-
ments regardless of account value, “even if the ac-
count value is exhausted before all payments have
been made.” Because Transamerica’s computer-
ized system does not make a payment if an account
is exhausted, the system does not make a guaran-
teed payment regardless of the account value.
Therefore, Lincoln failed to prove that
Transamerica performs step (e).
Id. (internal citation omitted). Like the claim at issue in
Lincoln, the “selecting” step in claim 7 is not met unless the
TDMA system is configured to perform each claimed re-
sponsive action in response to each corresponding claimed
prerequisite condition. Thus, the Board did not err by con-
cluding that the prior art was required to teach both condi-
tions of the “selecting” step.
Hytera cites only one precedential opinion in support
of its argument about the conditional limitation. Appellant
Br. 29 (citing Brown v. 3M, 265 F.3d 1349, 1352–53
(Fed. Cir. 2001)). But the claim in Brown is distinguisha-
ble from the conditional “selecting” limitation in claim 7 of
the ’991 patent. In Brown, the claim required using one of
three alternative formats for a date, and provided that any
of the three would be sufficient to meet the limitation. Id.
Thus, the prior art anticipated the claim when it disclosed
one of the three alternatives. Id. Here, in contrast, the
claim specifies what action must occur in each scenario of
the conditional limitation.
Hytera relies heavily on the Board’s decision in Ex
Parte Schulhauser, No. 2013-007847, 2016 WL 6277792
(P.T.A.B. Apr. 28, 2016). Hytera cites Schulhauser for the
proposition that when a conditional method claim has mul-
tiple possible paths, the prior art need only show one
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possible path to render the claim unpatentable. Hytera
also cites nonprecedential opinions from this court regard-
ing infringement when only one of two conditional cases re-
cited in a claim is performed. See Appellant Br. 43 (citing
Applera Corp. v. Illumina, Inc., 375 F. App’x 12, 21
(Fed. Cir. 2010) (nonprecedential); Cybersettle, Inc. v. Nat’l
Arbitration Forum, Inc., 243 F. App’x 603, 607 (Fed. Cir.
2007) (nonprecedential)).
Importantly, opinions from the Board are not binding
on this court. See Noelle v. Lederman, 355 F.3d 1343, 1350
(Fed. Cir. 2004). Our nonprecedential opinions are also not
binding. See Fed. Cir. R. 32.1(d) (“The court may refer to a
nonprecedential or unpublished disposition in an opinion
or order and may look to a nonprecedential or unpublished
disposition for guidance or persuasive reasoning but will
not give one of its own nonprecedential dispositions the ef-
fect of binding precedent.”). To the extent any nonbinding
precedent conflicts with our precedential opinion in Lin-
coln, we are bound by Lincoln as the controlling authority
in this case.
In addition to being nonbinding, the cases Hytera cites
are distinguishable from this case. In Cybersettle, we
stated that “[i]f the condition for performing a contingent
step is not satisfied, the performance recited by the step
need not be carried out in order for the claimed method to
be performed.” Cybersettle, 243 F. App’x at 607. In the next
two sentences, however, we stated:
But Cybersettle does not argue that the two “re-
ceiving” steps are contingent on some unspecified
condition, and the “receiving” steps of claim 1 con-
tain no conditional language.
Id. Our dictum in Cybersettle regarding claim steps con-
tingent on unspecified conditions does not inform our inter-
pretation of claim 7 in this case, which requires that a
specific action be taken in response to each of two alterna-
tive specified conditions.
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In Applera, the claim at issue recited “repeating steps
(a) and (b) until the sequence of nucleotides is determined,”
and the parties disputed whether that limitation required
repeating the steps even if the condition was satisfied in
the first cycle. Applera, 375 F. App’x at 21. Based on the
nature of the claimed invention and the connotations of the
term “repeating . . . until,” we determined that “[t]here is
no need for repetition once the sequence of the polynucleo-
tide has been fully determined.” Id. In essence, we deter-
mined that the claim implicitly required not repeating
steps (a) and (b) after the condition had been satisfied, even
if the condition was satisfied in the first cycle before any
repetition had occurred. Again, that is significantly differ-
ent from the case here, where claim 7 plainly recites the
response that must occur in the case of each alternative
condition.
The Board’s decision in Schulhauser is closer to the sit-
uation we have in this case because it presented two alter-
native conditions and described a response to each. See
Schulhauser, 2016 WL 6277792, at *3. The claim at issue
recited, in pertinent part:
collecting physiological data associated with the
subject from the implantable device at preset time
intervals, wherein the collected data includes real-
time electrocardiac signal data, heart sound data,
activity level data and tissue perfusion data;
comparing the electrocardiac signal data with a
threshold electrocardiac criteria for indicating a
strong likelihood of a cardiac event;
triggering an alarm state if the electrocardiac sig-
nal data is not within the threshold electrocardiac
criteria;
determining the current activity level of the subject
from the activity level data if the electrocardiac
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signal data is within the threshold electrocardiac
criteria.
Id. at *1 (emphasis added). The Board determined that the
broadest reasonable interpretation of the claim “encom-
passes an instance in which the method ends when the
alarm is triggered in response to the cardiac signal data not
being within the threshold electrocardiac criteria, such
that the step of ‘determining the current activity level of
the subject’ and the remaining steps need not be reached.”
Id. at *4. Thus, the Board affirmed an examiner’s rejection
for obviousness based on prior art that showed only the
“comparing” and “triggering” steps, even without any evi-
dence in the prior art teaching the limitation directed to
“determining the current activity level.” Id. at *5.
We make no comment on whether Schulhauser was
correctly decided by the Board, but we find that claim 7 of
the ’991 patent is distinguishable from the claim at issue
in Schulhauser. In Schulhauser, nothing in the earlier
steps of the claim suggested that the claimed method would
be incomplete after the triggering step. Thus, each alter-
native condition could reasonably be construed as a
standalone method claim, which was the basis for the
Board’s conclusion that “claim 1 as written covers at least
two methods, one in which the prerequisite condition for
the triggering step is met and one in which the prerequisite
condition for the determining step is met.” Id. at *4. In
contrast, claim 7 of the ’991 patent contains a clear indica-
tion that the method requires performance of the “select-
ing” step in response to each of the two alternative
conditions. Specifically, the first step of claim 7 requires
“knowing” at least two sets of mutually exclusive synchro-
nization patterns. ’991 patent col. 17 ll. 38–46. That
“knowing” step would be largely unnecessary if the method
could be performed by only “selecting a synchronization
pattern selected from the first set of synchronization pat-
terns” in response to the first condition when the timeslot
is the current desired timeslot. See id. at col. 17 ll. 51–55.
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The claim requires “knowing . . . a second set of synchroni-
zation patterns,” id. at col. 17 ll. 38–41, precisely because
it is essential that, under the second condition when the
timeslot is not the current desired timeslot, the transmit-
ting device must “select[] a synchronization pattern se-
lected from the second set of synchronization patterns.” Id.
at col. 17 ll. 55–58. Therefore, whereas the Board con-
strued the claim in Schulhauser as presenting two distinct
methods depending on the prerequisite conditions, the
Board here correctly determined claim 7 to be one method
in which the response to either alternative condition in the
“selecting” step must be performed.
Ultimately, our binding precedent in Lincoln supports
the Board’s conclusion that, in order to render claim 7 ob-
vious, the prior art must teach each step of the claim, in-
cluding the response to each condition in the “selecting”
step. The nonbinding precedent that Hytera cites does not
convince us otherwise. We therefore conclude that the
Board did not commit reversible error with regard to the
conditional “selecting” step.
III
Hytera’s third challenge focuses on the order of the
claimed method. Hytera concedes that some of the steps of
the method claim must be performed in order—e.g., that
the “transmitting” step must be performed last and that
the “selecting” step must be performed after the “determin-
ing” step. See Appellant Br. 45 n.5. “Hytera only chal-
lenges the Board’s finding that the ‘preparing’ step must
come before the ‘determining’ step.” Id. Hytera insists that
the Board erred by relying on a figure in the ’991 patent
that does not cover claim 7, and by placing undue weight
on antecedent basis.
Motorola responds that the Board correctly considered
the antecedent basis in claim 7, which first recites “prepar-
ing to transmit a particular payload type in a timeslot,” and
then recites “determining whether the timeslot is a current
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desired timeslot for the TDMA system.” See ’991 patent
col. 17 ll. 47–50 (emphases added). Motorola further ar-
gues that the Board properly relied on Figure 5, which
shows the same steps in the same order as claim 7 and de-
picts the “preparing” step before the “determining” and “se-
lecting” steps.
We agree with Motorola. When “determining if the
steps of a method claim that do not otherwise recite an or-
der, must nonetheless be performed in the order in which
they are written . . . [f]irst, we look to the claim language
to determine if, as a matter of logic or grammar, they must
be performed in the order written.” Altiris, Inc. v. Syman-
tec Corp., 318 F.3d 1363, 1369 (Fed. Cir. 2003) (citing In-
teractive Gift Express, Inc. v. Compuserve Inc., 256 F.3d
1323, 1343 (Fed. Cir. 2001)). Here, in claim 7, each step of
the method provides an antecedent basis for the steps that
follow. That includes “a” timeslot in the “preparing” step,
which grammatically provides antecedent basis for “the”
timeslot in the “determining” step. Hytera argues that the
antecedent basis is not meaningful because the “determin-
ing” step could have just as easily said “a” timeslot; on the
contrary, the fact that the “determining step says “the”
when it could have said “a” reinforces our conclusion that
it is meant to come after the “preparing” step. Moreover,
as a matter of logic, we reject Hytera’s position that we
should construe claim 7 as requiring four of its five steps to
be performed in the order they are written, but we should
disregard the antecedent basis in the “preparing” step and
allow that one step to be performed out of order.
Because we conclude that the claim language demon-
strates the order of the steps, we need not look further into
the specification. See Altiris, 318 F.3d at 1369. Neverthe-
less, we note that the parties’ dispute mainly concerns
whether Figure 5—which clearly shows the “preparing”
step before the “determining” step—is relevant to the order
of claim 7. Tellingly, however, Hytera does not point to any
figure or other part of the specification that discloses an
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embodiment in which the “preparing” step is performed af-
ter the “determining” step. Though we have repeatedly
held that “it is . . . not enough that the only embodiments,
or all of the embodiments, contain a particular limitation
to limit a claim term beyond its ordinary meaning,” Aventis
Pharma S.A. v. Hospira, Inc., 675 F.3d 1324, 1330 (Fed.
Cir. 2012) (internal quotation marks omitted), here, the
only embodiments are consistent with the plain meaning of
the claim in the order that is written, and we thus decline
to construe the claim as allowing deviation from that order.
Therefore, based on the language of the claim, as supported
by the embodiments in the specification, we hold that the
Board did not err by requiring the claim steps to be per-
formed in the order they are written.
IV
We finally turn briefly to Hytera’s challenge regarding
secondary considerations. Because we are unpersuaded by
any of Hytera’s first three challenges, we agree with the
Board’s conclusion that the prior art does not teach or sug-
gest all of the limitations in claims 7 and 8. We therefore
need not address Hytera’s assertions of error in the Board’s
consideration of copying as an objective indicium of nonob-
viousness. Hamilton Beach Brands, Inc. v. f'real Foods,
LLC, 908 F.3d 1328, 1343 (Fed. Cir. 2018).
CONCLUSION
We have considered Hytera’s remaining arguments but
we find them unpersuasive. Accordingly, the Board’s final
written decision is affirmed.
AFFIRMED
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