Case: 21-1908 Document: 68 Page: 1 Filed: 02/14/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TRAVEL SENTRY, INC.,
Plaintiff-Appellee
v.
DAVID A. TROPP,
Defendant-Appellant
______________________
2021-1908
______________________
Appeal from the United States District Court for the
Eastern District of New York in No. 1:06-cv-06415-ENV-
RLM, Senior Judge Eric N. Vitaliano.
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DAVID A. TROPP,
Plaintiff-Appellant
v.
CONAIR CORPORATION, HP MARKETING CORP.,
LTD., MAGELLAN'S INTERNATIONAL TRAVEL
CORPORATION, TITAN LUGGAGE USA, TRG
ACCESSORIES, LLC,
Defendants
BRIGGS & RILEY TRAVELWARE LLC, DELSEY
Case: 21-1908 Document: 68 Page: 2 Filed: 02/14/2022
2 TRAVEL SENTRY, INC. v. TROPP
LUGGAGE INC., L.C. INDUSTRIES, LLC, OUTPAC
DESIGNS INC., TRAVELPRO INTERNATIONAL
INC., VICTORINOX SWISS ARMY, INC.,
WORDLOCK, INC.,
Defendants-Appellees
______________________
2021-1909
______________________
Appeal from the United States District Court for the
Eastern District of New York in No. 1:08-cv-04446-ENV-
RLM, Senior Judge Eric N. Vitaliano.
______________________
Decided: February 14, 2022
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WILLIAM L. PRICKETT, Seyfarth Shaw LLP, Boston, MA,
argued for Travel Sentry, Inc., Briggs & Riley Travelware
LLC, Delsey Luggage, Inc., L.C. Industries, LLC, Outpac
Designs, Inc., Travelpro International Inc., Victorinox
Swiss Army, Inc., and Wordlock, Inc.
ERIC A. WHITE, Mayer Brown LLP, Washington, DC,
argued for David A. Tropp. Also represented by JAMIE B.
BEABER, ANDREW JOHN PINCUS; ROBERT G. PLUTA, Chicago,
IL.
PETER BERNSTEIN, Scully, Scott, Murphy & Presser,
Garden City, NY, for defendant-appellee Briggs & Riley
Travelware LLC.
MICHAEL A. SCHOLLAERT, Baker Donelson Bearman
Caldwell & Berkowitz, PC, Baltimore, MD, for defendant-
appellee Delsey Luggage Inc. Also represented by EMILY
R. BILLIG.
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Case: 21-1908 Document: 68 Page: 3 Filed: 02/14/2022
TRAVEL SENTRY, INC. v. TROPP 3
Before LOURIE, SCHALL, and TARANTO, Circuit Judges.
PER CURIAM.
These two patent cases involve David Tropp’s U.S. Pa-
tent Nos. 7,021,537 and 7,036,728. The district court
granted summary judgment against Mr. Tropp on the
ground that all the at-issue claims of those patents—of
which the parties agree claim 1 of the ’537 patent is repre-
sentative—are invalid because they claim ineligible subject
matter under
35 U.S.C. § 101. Travel Sentry, Inc. v. Tropp,
527 F. Supp. 3d 256, 259 (E.D.N.Y. 2021). Mr. Tropp ap-
peals. We affirm.
The district court correctly held representative claim 1
ineligible. The claim recites a method of making available
to consumers a dual-access lock having a combination-lock
portion and a master-key-lock portion, marking it so that
luggage screeners know a master key will open it, agreeing
with a screening entity that its luggage screeners will use
the key to open a marked bag if opening is necessary, and
marketing the luggage to consumers as subject to this
screening process. The district court summarized: The
claim “essentially describe[s] the basic steps of using and
marketing a dual-access lock for luggage inspection, a long-
standing fundamental economic practice and method of or-
ganizing human activity.”
Id. at 265.
The court properly held the claim to be directed to an
abstract idea, noting that our precedents consistently rec-
ognize the abstract character of such practices and meth-
ods. See, e.g., Intellectual Ventures I LLC v. Symantec
Corp.,
838 F.3d 1307, 1313 (Fed. Cir. 2016). The court also
properly held that Mr. Tropp identified no “inventive con-
cept” in the claim’s details—in particular, in the claim’s ref-
erence to a “special” lock. Travel Sentry, 527 F. Supp. 3d
at 267–69. No “technical specifications or concrete im-
provements,” or identification of what physical changes are
made to the lock mechanism to make the lock “special,” is
Case: 21-1908 Document: 68 Page: 4 Filed: 02/14/2022
4 TRAVEL SENTRY, INC. v. TROPP
found in the claim (or, for that matter, the specification),
id. at 266, an absence that “only highlight[s] the generic
nature” of the “special lock” and other details to which Mr.
Tropp pointed, id. at 268. And there is no genuine dispute
about the fact that dual-access (combination/key) locks
were familiar and used in luggage screening, with bags
identified by a tag to enable such use. Id. at 268–69. In
these circumstances, the claim fails to pass muster under
both steps of the eligibility inquiry. See Simio, LLC v.
FlexSim Software Prods., Inc.,
983 F.3d 1353, 1364 (Fed.
Cir. 2020) (observing that where the focus of the claimed
advance is abstract, an abstract-idea improvement cannot
transform the ineligible claim into an eligible one).
In this court, Mr. Tropp argues that claim 1 is directed
to “the creation of novel physical locks with a uniform mas-
ter key (that works with a variety of locks that have differ-
ent locking mechanisms).” Tropp Opening Br. 18. This
contention raises at least two substantial questions bear-
ing on eligibility under § 101: Does the claim, properly con-
strued, require a dual-access lock in which the key for the
master-key lock portion is the same for different combina-
tion-lock mechanisms? And if so, could the claim pass mus-
ter under § 101 in the absence of anything in the
specification, or even in the summary judgment record,
that provides details regarding the physical makeup,
mechanism, or operation of such a lock indicating a con-
crete technical advance over earlier dual-access locks? See,
e.g., Affinity Labs of Tex., LLC v. DIRECTV, LLC,
838 F.3d
1253, 1258–59 (Fed. Cir. 2016) (holding invalid under § 101
a claim that “is drawn to the [abstract] idea itself” instead
of “how to implement” it and noting that “[e]ven if all the
details contained in the specification were imported into
the [patent] claims, the result would still not be a concrete
implementation of the abstract idea”); Apple, Inc. v.
Ameranth, Inc.,
842 F.3d 1229, 1241 (Fed. Cir. 2016). But
we do not address those questions, because Mr. Tropp has
not preserved this argument for eligibility.
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TRAVEL SENTRY, INC. v. TROPP 5
In his opposition to the § 101 summary judgment mo-
tion, Mr. Tropp referred to the “special lock having a com-
bination lock portion and a master key lock portion” and
the “identification structure” as the claimed improved
“physical components.” J.A. 1659 (internal quotation
marks and citation omitted). Nothing in that opposition
argued that the inventive concept in the claims was, or in-
cluded, the creation of a new dual-access lock with a master
key capable of opening dual-access locks whose combina-
tion-lock mechanisms differed from one another. We need
not evaluate Mr. Tropp’s opposition to a different summary
judgment motion (concerning prior art invalidity) or the
statement of disputed facts under Local Civil Rule 56.1 to
determine whether they contained meaningful assertions
about physical changes in the locks. In his opposition to
the § 101 motion, Mr. Tropp did not argue for the § 101 sig-
nificance of the lock-mechanism improvement he now as-
serts to be required, an argument materially different from
what he did argue. We decline to upset the district court’s
judgment based on an argument like this made for the first
time on appeal. See, e.g., Icon Health & Fitness, Inc. v.
Strava, Inc.,
849 F.3d 1034, 1040 (Fed. Cir. 2017).
AFFIRMED
