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

Recording of a 90-minute premium CLE webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
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Conducted on Thursday, May 24, 2018

Recorded event now available

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This CLE course will provide guidance to counsel on the impact of the Federal Circuit’s decision in Travel Sentry Inc. v. Tropp on divided patent infringement claims. The panel will examine how the decision fits into the Akamai V framework and outline steps to protect IP rights and allocate liability in the event of infringement.


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?


Irving, Thomas
Thomas L. Irving

Finnegan Henderson Farabow Garrett & Dunner

Mr. Irving has 35 years of experience in the field of IP law. His practice includes due diligence, patent prosecution,...  |  Read More

Browning, Paul
Dr. Paul W. Browning, Ph.D.

Finnegan Henderson Farabow Garrett & Dunner

Dr. Browning focuses on patent litigation and appeals. He has led teams as first chair at trial, at Markman...  |  Read More

Rudolph, Barbara
Barbara R. Rudolph, Ph.D.

Finnegan Henderson Farabow Garrett & Dunner

Dr. Rudolph has successfully litigated complex Hatch-Waxman Paragraph IV Abbreviated New Drug Application and...  |  Read More

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