In Travel Sentry, Inc. v. David A. Tropp (Travel Sentry III), a panel of the Court of Appeals for the Federal Circuit (CAFC) broadened the scope of potential liability for joint patent infringement by expanding the definition of direct infringement. Direct infringement requires that all steps of a patented method to be performed by or attributable to a single actor. Traditionally, attribution was based on traditional agency principles or contracts. In Akamai V, the CAFC established a two-prong test stating “an alleged infringer conditions participation in an activity or receipt of a benefit upon performance of a step or steps of a patented method and establishes the manner or timing of that performance.” The CAFC, in Akamai V, established that “[w]hether a single actor directed or controlled the acts of one or more third parties is a question of fact.”
The CAFC panel re-iterated the importance of correctly identifying the relevant “activity” or “benefit” that is being conditioned upon performance of one or more claim steps. The panel also emphasized that the context of the claims and conduct in a particular case will inform whether attribution is proper under Akamai V’s two-prong test. When facts presented in a case are sufficient to establish that an accused infringer “has the right and ability to stop or limit” infringing activity performed by one or more third parties, regardless of whether such right or ability has basis in traditional agency principles or a contract(s), such facts should be presented to a jury to determine whether or not the third party activity is attributable to the accused infringer.