Judge O’Malley on Travel Sentry v Tropp

Reference: Divided infringement

Summary: Alluding again to the Akamai case (a famous GNU/Linux user), the Federal Circuit debates the practice of working around patents in creative ways

IN a recent case which is not about patent scope, the Court of Appeals for the Federal Circuit (CAFC) ruled on divided infringement.

While more radical sites such as Watchtroll wrote about it, so did more moderate sites. "This recent interpretation of the Akamai test may at the very least make it more difficult for accused infringers to have divided infringement cases dismissed at the summary judgement stage," said a blog a couple of weeks ago.

Divided infringement is explained below:

Enforcing a patent with claims that raise the specter of divided infringement can be a difficult plight for patent owners. Even under the more liberal standard set forth in the Federal Circuit’s en banc decision in Akamai v. Limelight, it has proven difficult for patent owners to establish the necessary levels of control or cooperation between two or more parties who together perform the steps of a method claim. However, the Federal Circuit decision in Travel Sentry, Inc. v. Tropp suggests that the requisite level of cooperation or control should be considered broadly. This recent interpretation of the Akamai test may at the very least make it more difficult for accused infringers to have divided infringement cases dismissed at the summary judgement stage.

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The Federal Circuit was authored by Judge O’Malley and joined by Judges Lourie and Taranto.

Divided infringement was also mentioned by Peter Keros earlier this month. He wrote:

For divided patent infringement under 35 U.S.C. § 271(b), a patent owner must show that a single party has directly infringed the patented claims under 35 U.S.C. § 271(a).

We typically write about 35 U.S.C. § 101, but in this particular case we deal with a decision that can soon be cited again. Hence we take note of it, for future reference. ⬆