Is defense against a patent infringement claim covered by my insurance policy?

When a claim is asserted against a corporate entity, one of the first questions that the company should ask is whether the claim is covered by its insurance policy.  When the claim is one for patent infringement, companies typically find a commercial general liability (CGL) policy silent about such claims — and in other cases the policy may expressly exclude the claims. 

When the policy is silent, companies may consider whether the claims are covered by any “advertising injury” coverage that may be available under the policy.  As my colleagues Russ Barron and Matt Durrell wrote in a recent article:

[W]hether coverage exists for a given patent infringement claim will depend on a number of factors, such as the nature of each claim being asserted by and against the policyholder, the policy language, and court decisions from the relevant jurisdiction. Of these factors, the types of claims being asserted against the policyholder are of particular importance because even if patent claims (or counterclaims) are not covered, the insurer may be required to cover the patent claims if any other claim triggers the insurer’s duty to defend. . . . In most instances, the answer to this question will turn on whether the policyholder can satisfy three elements:

To read the rest of the article, click here.

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