NOTE: This disposition is nonprecedential.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 

KYLE TIMOTHY DEIGHAN, JOSHUA FRIEDMAN, YIZHOU LIU,

MARK MCDOUGALL, JOSHUA MICHAEL RYLAND. 

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 JOHN C. O'QUINN, Kirkland & Ellis LLP, Washington, 

DC, for appellee. Also represented by HANNAH LAUREN 

BEDARD, JASON M. WILCOX; MICHAEL W. DE VRIES, YIMENG 

DOU, BENJAMIN A. HERBERT, Los Angeles, CA; AKSHAY S.

DEORAS, New York, NY; ADAM R. ALPER, San Francisco, 

CA. 

 MONICA BARNES LATEEF, Office of the Solicitor, United 

States Patent and Trademark Office, Alexandria, VA, for 

intervenor. Also represented by THOMAS W. KRAUSE,

FARHEENA YASMEEN RASHEED. 

 ______________________

Before NEWMAN, LOURIE, and HUGHES, Circuit Judges.

LOURIE, Circuit Judge.

Hytera Communications Co. Ltd. (“Hytera”) appeals 

from the final written decision of the Patent Trial and Appeal 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 patent, which is directed to a method for efficiently synchronizing 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 receiving 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 synchronization 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 synchronization 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 assigned 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 second 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 exclusive 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, selecting 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; and

transmitting a burst in the timeslot having embedded 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 petition, Hytera contended that claims 7 and 8 are unpatentable 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) Yamaguchi 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 evidence that claims 7 and 8 are unpatentable. Decision, 2019 

WL 2098197, at *1. Hytera appealed and we have jurisdiction under 28 U.S.C. § 1295(a)(4)(A).

DISCUSSION

We review the Board’s legal determinations de novo, In 

re Elsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), but we review the Board’s factual findings underlying those determinations for substantial evidence, In re Gartside, 203 F.3d 

1305, 1316 (Fed. Cir. 2000). A finding is supported by substantial evidence if a reasonable mind might accept the evidence 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 secondary consideration of nonobviousness. We address Hytera’s challenges in turn.

I

Hytera’s first challenge is based on the Board’s interpretation of claim 7 as requiring “transmitting on an alternate 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 requirement anyway. Hytera contends that the Board committed 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 transmitting 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 motion. A reply may only respond to arguments raised in the 

corresponding opposition, patent owner preliminary response, or patent owner response.”); Intelligent Bio-Systems, 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 “alternate 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 transmitting in whichever timeslot is selected. If the alternate 

timeslot is selected, the claim expressly requires transmitting a burst in that selected timeslot. ’991 patent col. 17 

ll. 59–60. We therefore are not persuaded by Hytera’s contention 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, selecting 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 argues 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 “periodically paying the scheduled payment to the owner for the 

period of benefit payments, even if the account value is exhausted before all payments have been made.” Id. at 1366.

The patent owner argued that the “even if” clause was conditional and thus “need not be performed unless account 

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exhaustion occurs.” Id. at 1370. We rejected that argument, and we held that:

Lincoln was required to prove that Transamerica’s 

computerized system is configured to make payments regardless of account value, “even if the account value is exhausted before all payments have 

been made.” Because Transamerica’s computerized system does not make a payment if an account 

is exhausted, the system does not make a guaranteed 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 responsive action in response to each corresponding claimed 

prerequisite condition. Thus, the Board did not err by concluding that the prior art was required to teach both conditions 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 distinguishable 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 multiple 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 regarding infringement when only one of two conditional cases recited 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 effect of binding precedent.”). To the extent any nonbinding 

precedent conflicts with our precedential opinion in Lincoln, 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 “receiving” steps are contingent on some unspecified 

condition, and the “receiving” steps of claim 1 contain no conditional language.

Id. Our dictum in Cybersettle regarding claim steps contingent on unspecified conditions does not inform our interpretation of claim 7 in this case, which requires that a 

specific action be taken in response to each of two alternative 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 polynucleotide has been fully determined.” Id. In essence, we determined 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 different 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 situation we have in this case because it presented two alternative 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 realtime 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 signal 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 “encompasses 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 evidence 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 alternative 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 indication that the method requires performance of the “selecting” 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 synchronization 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 patterns” 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 synchronization 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 transmitting device must “select[] a synchronization pattern selected from the second set of synchronization patterns.” Id. 

at col. 17 ll. 55–58. Therefore, whereas the Board construed 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 obvious, the prior art must teach each step of the claim, including 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 “determining” step. See Appellant Br. 45 n.5. “Hytera only challenges 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 “preparing 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 argues that the Board properly relied on Figure 5, which 

shows the same steps in the same order as claim 7 and depicts the “preparing” step before the “determining” and “selecting” steps. 

We agree with Motorola. When “determining if the 

steps of a method claim that do not otherwise recite an order, 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. Symantec Corp., 318 F.3d 1363, 1369 (Fed. Cir. 2003) (citing Interactive 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 “determining” 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 demonstrates the order of the steps, we need not look further into 

the specification. See Altiris, 318 F.3d at 1369. Nevertheless, 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 after 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 performed 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 suggest 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 nonobviousness. 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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