Background - Tropp (through Safe Skies) owns patents ('537 and '728) claiming a method for airline luggage inspection using dual‑access locks (consumer lock with master‑key access for screeners and an identifying mark). - Travel Sentry licenses and markets dual‑access locks (red diamond mark), supplies TSA with master keys (passkeys), training, and entered a 2003 MOU with TSA to provide passkeys, training materials, and replacement sets; the MOU is terminable and non‑exclusive. - District court repeatedly granted summary judgment of noninfringement, finding Travel Sentry merely provided access and guidance and did not “control” TSA’s performance of the final claim steps. - After en banc Akamai and subsequent Supreme Court and Federal Circuit developments refining attribution for divided infringement, the district court again granted summary judgment for Travel Sentry; Tropp appealed. - The Federal Circuit (panel) reviewed whether a genuine dispute exists that TSA’s performance of the final two claim steps (recognize id mark; use master key to open if necessary) is attributable to Travel Sentry under Akamai’s two‑prong test. ### Issues | Issue | Plaintiff's Argument (Tropp) | Defendant's Argument (Travel Sentry) | Held | |---|---:|---|---| | Whether TSA’s performance of final claim steps can be attributed to Travel Sentry under Akamai’s first prong (conditioning participation/benefit) | TSA receives the benefit of opening Travel Sentry‑marked luggage only by using passkeys and following Travel Sentry’s procedures; Travel Sentry conditions that benefit on TSA performing the steps | TSA screening is mandated by Congress; benefits cited are too diffuse/intangible and TSA is not obligated to follow Travel Sentry’s program | Reversed district court: a reasonable jury could find Travel Sentry conditioned TSA’s receipt of benefits (ability to open without breaking locks) on TSA performing the claimed steps | | Whether Travel Sentry established the manner or timing of TSA’s performance (Akamai second prong) | Travel Sentry provided passkeys, training, identification standards, and replacement keys per MOU, thereby defining how TSA performs the steps | Travel Sentry only gave guidance; it did not supervise, enforce, or technologically block TSA from acting independently | Reversed: disputed facts exist; a jury could find Travel Sentry established the manner/timing because TSA cannot realize the benefit without following Travel Sentry’s prescribed steps | | Whether the district court erred in defining the relevant "activity" too broadly (luggage screening generally) | The relevant activity is the specific screening using Travel Sentry’s system (identifying Travel Sentry‑marked locks and using passkeys), not all TSA screening | The activity is broader (statutory screening), so Travel Sentry’s role is peripheral | Reversed: court mischaracterized the activity; the proper activity is the specific Travel Sentry‑marked luggage screening tied to the claimed steps | | Whether Travel Sentry (and licensees) remain prevailing parties entitled to attorney fees under 35 U.S.C. § 285 | N/A (cross‑appellants sought fees) | Travel Sentry sought fees after district court judgment | Moot: vacatur of noninfringement judgment eliminates Travel Sentry’s prevailing‑party status; cross‑appeal dismissed as moot | ### Key Cases Cited Akamai Technologies, Inc. v. Limelight Networks, Inc., 797 F.3d 1020 (Fed. Cir. 2015) (articulates two‑prong test for attributing third‑party acts: conditioning receipt of benefit and establishing manner/timing) Limelight Networks, Inc. v. Akamai Technologies, Inc., 134 S. Ct. 2111 (U.S. 2014) (Supreme Court holding that inducement requires underlying direct infringement, invited Federal Circuit to revisit § 271(a)) Eli Lilly & Co. v. Teva Parenteral Medicines, Inc., 845 F.3d 1357 (Fed. Cir. 2017) (applies Akamai test in physician/patient context; conditioning can exist absent legal/technical prerequisites) BMC Resources, Inc. v. Paymentech, L.P., 498 F.3d 1373 (Fed. Cir. 2007) (single‑actor rule for direct infringement; prior precedent discussed and narrowed by Akamai) Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318 (Fed. Cir. 2008) (discusses limits of attribution where defendant merely controls access and instructs use) Metro‑Goldwyn‑Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (U.S. 2005) (vicarious liability principles: actor who profits and has ability to stop/limit infringement may be vicariously liable)