Detroit patent litigator Brad Luchsinger spoke with Law360 about the Federal Circuit’s recent decision to vacate summary judgment of non-infringement in Travel Sentry Inc. et al. v. David Tropp, a decision that could potentially expand the liability for joint infringement.

The case involves “dual-access” luggage locks made by Travel Sentry. As part of the locks’ design, they can be opened by both consumers and the TSA, to whom the Florida-based company granted sets of master keys to open locks and inspect luggage. The Federal Circuit says that this relationship — Travel Sentry making locks, providing instructions and keys to open them, and the TSA actually opening them — may create grounds for joint infringement of a patent held by competitor Safe Skies LLC.

The decision relies in part on Akamai, an en banc decision from 2015, which made it easier to prove joint infringement by holding that, when one party “conditions participation in an activity or receipt of a benefit” on another party performing some steps of a patent and “establishes the manner or timing of that performance,” joint infringement can be found.

This new decision may expand joint infringement liability even further by obviating the need for any official agreement between companies or, in this case, companies and agencies.

This also means that joint infringement decisions will likely have to be made by juries instead of judges. “As long as the patent owner can come forth with specific facts to show there is a joint infringement issue, that’s likely enough to survive summary judgment,” said Luchsinger.

While some may view the ruling as a broadening of Akamai, others are skeptical of how far the test will actually expand. Luchsinger suggested that this is “just a natural progression” from Akamai and the related Eli Lilly & Co. v. Teva Parenteral Medicines Inc. case. The court’s ruling to vacate a grant of summary judgment further suggests that “this decision does not necessarily blow the doors open on joint infringement.”

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Read Bryan Wheelock’s blog post for further insights on the matter.

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