IP Attorney's Handbook for Insurance Coverage in Intellectual Property Disputes

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American Bar Association, 2010 - Law - 339 pages
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This book addresses clients' questions regarding intellectual property insurance coverage and contains information vital to litigators who wish to use insurance to reimburse the cost of defending IP lawsuits, or obtain moneys for their settlement and/or indemnification of damage awards. The book focuses on the policy language carriers have used, how courts have interpreted these, and issues IP practitioners need to be sensitive to in litigating insurance cases.
 

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Contents

Intellectual Property Attorneys Checklist
1
2 NonISO CGL Advertising Injury Coverage
2
3 Best Prospects for IP Insurance Coverage under Personal and Advertising Injury Coverage in ISO CGLUmbrellaExcess Policies 197619861998 20...
4
4 Broad View of Coverage Opportunities Based on Business interests in Accord with Principles of Enterprise Risk Management
5
5 Insurance Coverage for Corporate Counsel
7
B Intellectual Property Insurance Policies
8
C CyberspaceMultimedia Coverage
12
2 Insurance Product OfferingsAnalyzing Their Applicability to Exposure
16
During the Policy Period
106
2 Coverage
107
3 No Coverage
108
IP Insurance Coverage Cases
111
B Patent
122
3 Coverage Cases Causal Nexus a Inducement
149
4 Patent Infringement Lawsuits Conjoined with Other Potentially Covered Claims
163
5 NonISO Policy Language
166

3 Policy Provisions
19
4 Issues Posed by ClaimsMade Insurance Coverage and the Requirement of Prompt Notice
26
5 Coverage Case Analysis
27
D Directors and Officers Policies
29
E Errors and Omissions Professional Liability Policies
30
What Intellectual Property Owners Should Know about Insurance Coverage
33
4 Setting Up Protocols to Assess Coverage for Claims Involving IP Assets
34
B Questions IPOs Should Ask Regarding Insurance Coverage
35
2 Industries Likely to Benefit from Pursuit Coverage
36
4 What Insurance Coverage Will Your Litigation against Defendants Trigger That Might Benefit Them or Your Company?
37
2 What Insurance Coverage Will Litigation against Your Company Trigger That Benefits Its Interests?
38
3 Recommendations for IPOs Serving as DefendantsCounterdefendants
39
4 When Can an Insurer Be Compelled to Pay the Full Amount of the Contemplated Settlement of an Underlying Action?
40
E Assessing an Insurance Portfolio as an IPO to Maximize Value
41
2 Cyberspace Policies
42
Special Aspects of Coverage under OffenseBased PersonalAdvertising InjuryCyberspaceMultimedia Coverage
45
B Ten Key Rules for Policyholders in Coverage Disputes
46
What Are the Facts for Purposes of Coverage Analysis?
47
2 Amended Complaint May Trigger a Defense
48
3 Limitations on Use of the Complaint Allegations Rule in Analyzing OffenseBased Coverage
49
4 Case Law Applying the Complaint Allegations Rule to OffenseBased Allegations
50
5 Survey of Case Law
51
C Facts Known or Knowable to the InsurerFacts Asserted in the Complaint
52
D Facts Available to the Insurer Duty to Investigate
53
E Shaping the Underlying Litigation to Clarify the Duty of Defense and Right to Independent Counsel
54
Covered under the Policy
55
Notice
57
2 Delay in Notice under Ultimate Net Loss Coverage Paired with a Voluntary Payments Provision May Preclude Defense Fee Reimbursement
59
4 Recovery of PreTender Fees
60
5 Relation Back Doctrine
64
C Notifying the Policyholder of a Reduction in Coverage
66
2 Survey of Case Law
67
D Circumstances in Which Notice Can Be Established Where an Insurer Was Not Directly Provided with a Copy of a Potentially Covered Lawsuit
68
3 Where Notice Is a Condition Precedent to Coverage Extra Vigilance in Providing Prompt Notice Is Required
69
5 Late Notice Is Especially Problematic in Procuring Coverage in Intellectual PropertyAntitrust Litigation
71
Choice of Law
73
3 TwoPronged Test
75
9 Balancing the Competing Interests of the States
76
13 Governmental Interests
77
2 States That Permit Recovery of Attorneys Fees to the Prevailing Policyholder in a Coverage Litigation
78
3 States That Award Prejudgment Interest in Excess of the Market Rate to a Prevailing Policyholder
79
4 States That Permit the Selection of Independent Counsel at the Insurers Expense Where a Conflict of Interest Arises Due to the Presence of Covered...
81
5 States That Find Ambiguity in Policy Language Evident Where Courts Disagree
84
Errors Omissions Exposure for Failure to Notify Insurer of Claims
85
B Lawyer Malpractice for Failure to Provide Notice
86
2 Failure to Tender May Be Legal Malpractice
87
Advertising Injury Provisions
89
2 The Advertising Element
90
3 The Causal Nexus Element
101
4 Patent Infringement
103
5 Trade Secret Misappropriation
104
C Trademark
171
2 Coverage Cases Offense
172
3 NonISO Policy Language
197
4 Coverage Cases Causal Nexus
203
D Trade Secret
211
3 Coverage Cases Causal Nexus
227
Pertinent Exclusions
229
4 No Coverage
230
B Business of Advertising All ISO CGL
231
2 Scope of Meaning
232
4 No Coverage
233
Libel Slander Disparagement Invasion of Privacy
234
4 Complaint Silent as to When Infringing Conduct Commenced
238
5 No Injurious Use of Infringing Publication before Policy Inception
240
6 Distinct Material Published after Policy Inception Even Though Related to That Published Before
241
7 Same Publication Both Before and After Policy Inception
243
E Intellectual Property 200120032007 ISO CGL
245
2 Trademark Service Mark Trade Name Other than Titles and Slogans
247
3 NonISO Exclusions
248
4 Field of Entertainment Limitation Endorsement
258
F Knowing Violation of Rights of Another 1998200120032007 ISO CGL
259
3 Coverage
260
4 No Coverage
261
G Knowledge of Falsity All ISO CGL
262
4 No Coverage
267
H Liability Assumed under Contract All ISO CGL
270
4 No Coverage
271
2 Scope of Meaning
272
3 Coverage
273
K Willful Violation of Penal Statute All ISO CGL
274
4 No Coverage
275
3 Coverage
276
Counterclaims
277
B DefamationLibel or Slander 1976 ISO CGL Oral or Written Publication of Material That Slanders or Libels Another Persons or Organizations Goo...
278
4 No Coverage for Disparagement
283
C Making Known Material That Violates a Persons Right of Privacy
284
2 Scope of Meaning
285
4 No Coverage
288
2 Scope of Meaning
289
4 No Coverage
291
E Unfair Competition
292
3 Coverage
293
4 No Coverage
294
5 Causal Nexus
295
F NonISO Language
298
2 Idea Misappropriation under an Implied Contract
301
Conclusion
303
Table of Cases
305
Index
329
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