Divided Infringement After Travel Sentry v. Tropp: Direct Infringement Liability for Third-Party Conduct

In Travel Sentry Inc. v. Tropp (Fed. Cir. Dec. 19, 2017), the court revisited the legal framework for direct infringement established in Akamai Technologies Inc. v. Limelight Networks Inc. (Akamai V) (Fed. Cir. 2015) (en banc). In the Travel Sentry opinion, the Federal Circuit clarified the scope of joint infringement and provided guidance on applying the Akamai V two-pronged direct or control analysis.

In Akamai V, the Federal Circuit recognized liability for direct infringement when a two-pronged test was met—(1) when “an alleged infringer conditions participation in an activity or receipt of a benefit upon performance of a step,” and (2) when the alleged infringer “establishes the manner or timing of that performance.”

In Travel Sentry, the Federal Circuit concluded that an alleged infringer does not avoid liability for divided infringement merely because the third party was not obligated to perform certain steps. This interpretation of “conditions participation” is a development that the panel will discuss to help counsel understand the scope of divided infringement and how it is being applied.

Listen as our authoritative panel of patent attorneys examines the Travel Sentry decision and how it fits in the Akamai V framework. The panel will discuss the implications of the decision, including joint infringement and jury decisions. The panel will also examine other recent decisions involving divided infringement and offer guidance on the joint infringement standard.

1. Travel Sentry decision
   1. How it fits in the Akamai V framework
   2. Implications of the decision
      1. Joint infringement
      2. Jury decisions
2. Other Federal Circuit  decisions regarding divided infringement
3. Divided infringement in pharma: Lilly v. Teva
4. Guidance on the joint infringement standard and strategies, including claim drafting, to avoid it

The panel will review these and other critical issues:

• How does the Travel Sentry decision change the playing field for divided infringement claims?
• What guidance does the Travel Sentry decision provide on the application of Akamai V?
• What steps can companies and counsel take to assess their risk when partnering with other companies to minimize potential exposure?