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Travel Sentry, Inc. v. Tropp

Divided Infringement Inquiry Emphasizes Correct Identification of the “Benefit” Being Conferred

Travel Sentry, Inc. v. Tropp, 2017 U.S. App. LEXIS 25548 (Fed. Cir. Dec. 17, 2017) (Lourie, O’MALLEY, Taranto) (E.D.N.Y.: Vitaliano) (3 of 5 stars)

Fed Cir vacates summary judgment of noninfringement and remands, and dismisses cross-appeal for fees. Tropp’s patents related to “dual-access locks” for use on airline luggage. The district court erred in determining that there was no material fact dispute as to whether Travel Sentry was “responsible” for the TSA’s performance of certain steps in the claimed methods (e.g., using master keys to open luggage). The opinion discusses Akamai V, 797 F.3d 1020 (Fed. Cir. 2015) (en banc), and Eli Lilly, 845 F.3d 1357 (Fed. Cir. 2017), as “highlight[ing] the importance of correctly identifying the relevant ‘activity’ or ‘benefit’ that is being conditioned upon the performance of one or more claim steps.” Op. at 19. Under that test, it would have been possible for a reasonable jury to conclude that TSA’s actions were attributable to Travel Sentry. The opinion describes how the “benefit” to TSA could be the ability to open certain luggage without breaking the lock, and that Travel Sentry has conditioned that benefit on the performance of the claim steps. The opinion also describes how, in the second prong of the Akamai V test, a jury could conclude that Travel Sentry had established the manner/timing of TSA’s performance, by training TSA on how to identify Travel Sentry’s trademark so as to use the proper key.

KEYWORDS: DIVIDED INFRINGEMENT; SUMMARY JUDGMENT