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Intellectual Property Insurance

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DisclaimerInsurance forms and endorsements vary based on insurance company,

changes in edition dates, regulations, court decisions and state jurisdiction. The instructional materials provided in this class are

intended as a general guidelines and any interpretations provided do not modify or revise insurance policy language. The authors of these materials, are the Insurance Community Center (ICC) and Intellectual

Property Insurance Services Corporation (IPISC). In providing these materials, ICC and IPISC assumes neither liability nor responsibility to any person or business with respect to any loss that is alleged to be caused directly or indirectly as a result of the instructional materials

provided. Copyright 2010 – 2012 All Rights Reserved

www.insurancecommunitycenter.comlaurie@insurancecommunitycenter.com

www.patentinsurance.com [email protected]

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Your Presenters Today

Laurie Infantino AFIS, CISC, CIC, CRIS, ACSR, CISR President, Insurance Community Center, Insight Insurance Consulting

Chuck Baxter J.D. General Counsel Intellectual Property Insurance Services Corporation

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Intellectual Property Insuranceto Protect Companies’ Assets

Intellectual Property Insurance Services Corporation

9720 Bunsen Parkway | Louisville, KY 40299Toll Free: 800.537.7863 | Fax: 502.491.4888

Direct: 502.855.5310 | www.patentinsurance.com

Intellectual Property Insurance to Protect Companies’ Assets © 2012 Intellectual Property Insurance Services Corporationwww.patentinsurance.com | 800.537.7863


Polling Question #1


Polling Question #2


Presentation Topics

IP in the news—Examples of loss

What is Intellectual Property

Intellectual Property AND Liability Insurance

Intellectual Property Law Issues

Cyberspace, Intellectual Property Issues

Intellectual Property and Insurance

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IP in the News

You read about it everyday

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Community Newsletter Articles

What does a “Drive in Movie Theater and Intellectual Property have in common?

http://insurancecommunityuniversity.com/UniversityResources/InsuranceArticlesFREE/ArticlesDetail/tabid/270/ArticleId/310/What-does-a-Drive-in-Movie-Theater-and-Intellectual-Property-have-in-common.aspx


Community Newsletter Articles

What do Ice Cream and Porn have in common?• http://

insurancecommunityuniversity.com/UniversityResources/InsuranceArticlesFREE/ArticlesDetail/tabid/270/ArticleId/336/What-Do-Ice-Cream-and-Porn-Have-in-Common.aspx


Community Newsletter Article

Tiffany Sues Costco http://insurancecommunityuniversity.com/

UniversityResources/InsuranceArticlesFREE/ArticlesDetail/tabid/270/ArticleId/436/Tiffany-sues-Costco.aspx


“Adidas Trademark Suit has Legs” Boston Herald

Adidas was awarded a $304.6 million verdict against Payless Shoe Source on May 5th for selling knockoff, striped sneakers. Adidas is poised to win even more from Wal-Mart Stores, Inc. in a lawsuit making similar claims.

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Mattel awarded $100 million in Bratz lawsuit

MGA and its chief executive officer were told to pay a combined $90 million in three causes of action related to Mattel’s employment contract with designer Carter Bryant, who developed the Bratz concept. The jury also ordered MGA, Larian and subsidiary MGA Hong Kong to pay $10 million for copyright infringement.

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BlackBerry vs. Research in Motion

BlackBerry maker, Research in Motion, said Friday that it agreed to pay $612.5 million to patent holding company NTP to settle a long-running dispute that had threatened to shut down the popular wireless e-mail service for its 3 million users.

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BlackBerry vs. Research in Motion

Case Manufacturer

Icon Patent Holder

Keyboard and button technology

Process(s) Patent Holders

Blackberry

Headphone Technology

Sound Technology


What is Intellectual Property?


Intellectual Property

“In simple terms, intellectual property (IP) is the product of the human intellect that has commercial value.” Patent, Copyright & Trademark: Stephen Elias (www.nolo.com)

IP can be in the form of an invention, process, chemical formula or “idea” (patent); the written word such, as books or songs; designs and art work (copyright); and product names (trademark).

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If “intellectual property” were not protected by law then the owner of the property would not be able to control its use.

The commercial value of intellectual property comes from the ability of its owner to control its use.

Intellectual Property laws are designed to define and protect various forms of IP.

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Types of Intellectual Property (IP)

Trade Secret Trademark Trade Dress Copyright Patent

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Trade Secrets Trade Secrets consists of a variety of original, inventive

ideas, information, material, formulas

Trade Secrets are NOT known by others (competitors/general public)

Trade Secret must be maintained and guarded as a “secret” (Coke formula/Kentucky Fried Chicken)

Protection under Trade Secret is often how new ideas (etc.) seek legal protection before qualification of other forms of IP.

Not subject to an expiration, such as a patent

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Examples of Trade Secret Categories

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Trade Secret Business Examples

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Could This Happen to Your Client? (Blog) “Hi my name is Aden and this is my first post. I

am in a somewhat unusual intellectual property issue and, though I have done a lot of searching, I cannot find a direct answer to one of my questions.”

http://answers.onstartups.com/questions/35008/transfer-of-intellectual-property-due-to-use-of-a-business-equipment-australian

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Could This Happen to Your Client?

“Basically, I was doing work experience for an organization (I was definitely not an employee) and I created some software for another organization while I was there.

Recently the question of intellectual ownership of my software has come up and the organization where I originally created the software claims that they have the right to take possession of the intellectual property of my software.”

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Could This Happen to Your Client?

“Since then I have continued working on it using my own equipment.

As I was not an employee I don't believe they can do this but they may claim that, because I used their equipment, that they own what I created.”

Polling Question #3--What do YOU think?

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Trademark A trademark is a brand name; logos; slogans; designs for

goods or services.

A trademark or service mark includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services. (www.uspto.gov)

A trademark may be distinctive or have become well-known through long use or advertising.

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Trade Dress

Trade Dress is similar to Trademark. Trade Dress refers to the “Total Image of a

Product.” The aesthetics. Typically, when there is a lawsuit for violation

of intellectual property, both Trade Dress and Trademark will be causes of action.

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Symbols

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Trademark Myths that can get you in trouble (David W. Henry)1. I registered the corporate

name in my state2. I checked with the state

trademark or fictitious name agency

3. I registered the name as an internet domain name—its mine

4. I spell my name differently

5. It’s my own name or initials so it must be okay

1. This is not a trademark registration

2. Rights arise from usage not filing—there are many unregistered marks

3. Owning a domain name does not automatically create trademark rights in goods

4. Confusion can still be created which is actionable

5. Not true


Copyright Protects a different type of creative expression;

an original artistic or literary work. It does not protect an “idea” itself.

Examples are works of: • authors• composers• artists• designers• programmers • web designers.

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Copyright

A copyright notice on a published work can be noted by using the “copyright bug” and it does NOT have to be registered in the U. S. Copyright Office “ ©.”

If the copyright is registered, it creates a legal presumption that the copyright is valid and allows the copyright owner to recover up to $l00,000 without proving any actual monetary harm.

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Copyright

A Copyright can last a very long time. As a result of the Copyright Extension Act of l998,

most copyrights for works published after January l, l978 last for the life of the author plus 70 years.

There are exceptions when the total life of the copyright will last between 95 and l20 years total.

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Polling Question #4 & #5


This website and its cartoons are registered with the U.S. Copyright Office.

The unauthorized reproduction or distribution of a copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by fines and federal imprisonment.


Email

Hi Laurie, Thank you for writing to me about my cartoons. It¹s great to hear

from you today! My cartoons are available at budget-friendly rates for meetings,

presentations, lectures, seminars and training sessions. You will find thousands of cartoons to choose from on my site @ http://www.glasbergen.com, all sorted by topic for fast and easy browsing...plus a keyword-search database to help you locate exactly what you're looking for. Click on any thumbnail to see a full size version of a cartoon, identified by a Cartoon ID code number directly below the image.

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Email

Here are the rates and ordering information you requested:

* OPTION #1: My standard permission fee for cartoons, used in PowerPoint, overheads or other screen presentations, is $25 per cartoon for one-time usage rights or $75 each for any cartoon to be used in multiple or repeated presentations. (All fees are quoted in U.S. Dollars for black and white artwork. A full color version will be supplied at no additional charge if available.)


Email

OPTION #2: I can also arrange a very special annual rate if you'd like unlimited use of any/all of my cartoons in your presentations for one year. You will have unlimited authorized access to a huge database of cartoons from my web pages including the new ones that appear as my cartoon of the day throughout the year. With this special arrangement, there's no need for last minute panicking...just download a few cartoons whenever you need them! My permission fee for this special unlimited access is $750 per year...less than $15 per week!


Patent A Patent gives the right to exclude others from making,

using, offering for sale or selling the invention throughout the U.S. or importing the invention into the U.S.

A Patent must fall within the definition five “statutory” classes in order to be patentable:

Processes, Machines, Manufactures (objects made by humans or machines), Compositions of matter, and New uses of any of the above.

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Provisional Patent

A “Provisional Application” for a patent is a form of application filed in the USPTO under 35 U.S.C. §III.

Provides a means to establish an early effective filing date in a later filed non provisional patent application filed under 35 U.S.C. §III.


Types of Patents

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Intellectual Property and Liability Insurance


Intellectual Property Background

In no particular order, the three areas of liability claims that seem to make carriers the most unhappy (or suspicious) are:

1. Employment claims2. Environmental claims3. “Coverage B”-type claims- Intellectual

Property, false advertising, etc.)

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Polling Question #6


Confusing Wine

South Ducks winery is being sued by Duckhorn winery because the South Duck’s wine label has a duck on it and resembles the Duckhorn label.

Duckhorn is demanding they remove their labels and product from the market place and pay them for damages from the potential loss of sales due to confusion of the customer.

Is this covered on the current Commercial General Liability under Advertising Injury?


Look The Same—don’t They?


Insurance Issues

Up until the CGL changed language in its 1998 edition, coverage for some Intellectual Property defense claims was afforded under the Advertising Injury coverage for other than Patent Infringement cases.

It is implicit for coverage to apply that the goods, services, etc. be advertised in order for coverage to apply.

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Insurance Issues Most plaintiffs wait until the product has

actually been advertised before filing a cause of action.

There is more economic benefit to sue for infringement when the product is established and making money.

There would be measurable damages at the point the product has market share.

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CGL Form Changes and IP

1973 and prior 1986-1996 1998 and forward

Piracy/Unfair Competition

Misappropriation of advertising ideas and style of doing businessAdolpho House Distributing Corp v. Travelers Property and Casualty Ins. Co., 2001 U. S. Dist. (LEXIS 25589 (S. D. Fla. 2001)

The use of another’s advertising idea in “your advertisement”

Infringement of copyright, title, or slogan

Infringement of copyright, title, or slogan

Infringing upon another’s copyright, trade dress or slogan in “your advertisement”.


Advertising Injury definition in the 1996 CGL“Advertising injury” means injury arising out of one or more of the following offenses:

1.Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services;

2.Oral or written publication of material that violates a person’s right of privacy;

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Advertising Injury Definition in the 1996 CGL

3. Misappropriation of advertising ideas or style of doing business; or

4. Infringement of copyright, title or slogan.

NOTE: There is NO definition of “advertisement” in the prior form.

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Advertising Injury definition in the 1998 CGL

14. “Personal and advertising injury” means injury, including consequential “bodily injury,” arising out of one or more of the following offenses.

d. Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services;

e. Oral or written publication of material that violates a person’s right of privacy;

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Advertising Injury definition in the 1998 CGL

f. The use of another’s advertising idea in your “advertisement”; or

g. Infringing upon another’s copyright, trade dress or slogan in your advertisement.”

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Advertising Injury definition in the 1998 CGL1. “Advertisement” means a notice that is

broadcast or published to the general public or specific market segments about your goods, products or services for the purpose of attracting customers or supporters.

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Advertising Liability

By the inclusion of the word and definition of “advertisement” the CGL eliminated most categories of what is provided in an Intellectual Property Defense policy.

The CGL never had coverage for offense. The CGL never “intended” to have ANY coverage

for Patents.

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Intellectual Property Law and Insurance

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Intellectual Property Legal Issues

Willful Infringement vs. Passive Infringement Contributory Infringer—Vicarious Infringer Unfair Competition Confusion of Customer Counterfeit Mark Dilution of Mark Palming Off

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Intellectual Property and Cyberspace Issues Domain Name Intellectual Property

• Patent• Trademark/Trade dress• Copyright

Linking/Framing

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Intellectual Property & Cyberspace Issues

Domain Names.• Unauthorized use of a Trademark or

Service Mark.• Likelihood of confusion as to the origin,

affiliation or sponsorship of a product.

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Cyberspace Copyright Issues

U. S. Copyright Law protects the expression of original works of authorship fixed in a tangible medium of expression.

Software falls within this category, even when not stored on a disk.

Congress amended the l976 Copyright Act in l980 to provide that software be treated as a “literary work.”

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Linking/Framing as Cyberspace concerns:• The insured links to or allow another party to

link to insured’s web site.

• Potential exposure to infringement issues related to the other party.

• Whether actual or alleged- your insured will be named in the lawsuit.

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Unauthorized Use of a Trademark or Service Mark:

• Must show a protectable mark

• Likelihood of confusion as to the origin, affiliation or sponsorship of a product

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Cyberspace Patent Issues

The most frequent source of patent litigation today as respects the internet is the Utility Patent (new and innovative use of the internet).

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Intellectual Property Insurance A Logical and Economical Business Decision


“People recognize intellectual property the same way they recognize real estate. People understand what property is. But it’s a new kind of property, and so the understanding uses new control surfaces. It uses a new way of defining property.” Michael Nesmith

Source: “Michael Nesmith.” BrainyQuote.com. Xplore Inc., 2012. http://www.brainyquote.com/quotes/quotes/m/michaelness264047.html

.www.InsuranceCommunityUniversity.com 73


Written as a separate coverage by limited property/casualty companies.

It is written often by specialty companies such as Intellectual Property Insurance Services Corporation www.patentinsurance.com


Intellectual Property Intellectual Property (IP) can be a company’s most

important asset and is what controls market share.

Many companies may not realize how vulnerable they are to other companies “stealing” their ideas/inventions and unfairly competing with them for market share.

Just having IP rights is not enough- companies must be able to protect them by:• Defending products and/or services against charges of IP

infringement; or• Enforcing IP rights against infringers

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Polling Question #7



IP litigation is very expensive as a defendant or as a plaintiff.

IP lawsuits are very complex and require litigation attorneys with specialized IP-specific knowledge.

IP insurance is available to defend against charges of IP infringement and to enforce IP rights against infringers.

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Average IP Litigation Costs

*Costs exclude judgments and damages awarded.

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PriceWaterhouseCoopers, 2012 Patent Litigation Study

Patent Holder Median Damages Awarded

78

Med

ian

dam

ages

(in

MM

)

.www.InsuranceCommunityUniversity.com 79

Lawsuit Frequency


Non-Practicing Entities (NPEs) a.k.a. Patent Trolls rake in Damages Awarded

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2012 U.S. Commerce Study on Intellectual Property & Jobs

Intellectual Property intensive industries:Have a significant impact on US economy and jobs creation

Support at least 40 Million jobs to US economy

Contribute $5 Trillion to the U.S. GDP

Support 35% of US economy

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2012 U.S. Commerce Study on Intellectual Property & JobsBottom line… “virtually every U.S. industry” relies on intellectual property protections, either directly or indirectly, Deputy Commerce Secretary Rebecca Blank said. “Clearly, making sure we adequately protect intellectual property is vital to maintaining America’s competitive edge and driving our overall prosperity.”

http://www.uspto.gov/news/publications/IP_Report_March_2012.pdf

Source: InsuranceJournal.com, April 12, 2012

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Elements of IP Insurance

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Elements of a Bond

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IP Abatement Insurance A unique insurance solution


IP Abatement Insurance: True Blended Coverage


IP Abatement Insurance: True Blended CoverageElements of IP Abatement Insurance


IP Abatement Insurance: True Blended CoverageKey Elements:Economic Benefit, when a lawsuit is won or settled favorably (relief from repayment of up to $100K of non-monetary, realized Economic Benefit)

Pre-existing commercial activity, whether known or unknown, is excluded from coverage

Favorable Opinion, at the time of a claim, a 3rd party favorable opinion from counsel is generally required

Early Intervention Letters, a courtesy to policyholders (up to 10 letters allowed per policy term)


Impact of IP Abatement Insurance on Patent Value

IP Insurance: A Logical and Economical Business Decision © 2012 -2013 Intellectual Property Insurance Services Corporationwww.patentinsurance.com | 800.537.7863

An insured patent is more valuable

Undergone thorough due diligence on validity and enforceability

Signals that a 3rd party will assume much of the financial risk of enforcing the IP

Validates patent value, validity and enforceability


InventPro® Abatement Insurance


InventPro® Abatement Insurance* InventPro® Abatement insurance is designed to help enforce the policyholder’s IP rights against infringers who are often larger and better equipped financially to withstand costly IP litigation. The InventPro® program offers an affordable insurance policy specifically for accommodating inventors and small companies.

Coverage:Limits: $100K; $250K; $500K (USD) per Claim/AggregateLimited to 3 Patents and/or TrademarksWorldwide Territory may be available for additional premiumTerms up to 3 yearsMulti-Peril Intellectual Property Insurance Limits: 10% of Policy limits offered by some insurance carriersClaims Made & Reported*offered by select insurance carriers only


InventPro® Abatement Insurance Key Elements:Other Products: Available for insuring in excess of 3 scheduled IP, increased limits and circumstances or industries otherwise excluded under this programChoice of Litigating Counsel endorsement: Required under the terms of this Policy

Economic Benefit, when a lawsuit is won or settled favorably (relief from repayment of up to $50K of non-monetary, realized Economic Benefit)

Pre-existing commercial activity, whether known or unknown, is excluded from coverage

Favorable Opinion, at the time of a claim, a 3rd party favorable opinion from counsel is requiredEarly Intervention Letters, a courtesy to policyholders (up to 5 letters allowed per policy term) Program Exclusions: Software and Website industries


IP Abatement Claim:Medical Device Industry The policy holder purchased a policy for a pending patent. Before the patent issued, a large competitor began

producing an infringing product. Once the patent issued, the policy holder was able to

pursue the alleged infringer and assert their patent rights. Without an insurance policy providing the funds to enforce

their rights, the policy holder would have: continued to lose market share, gone out of business, or lost a high percentage of their market share


IP Abatement Claim: Pet Products Industry The policy holder, a small company, used the policy to

enforce their patents, trademarks and copyrights.

A much larger, industry competitor copied its pet grooming product and infomercial.

The policy holder filed suit. When the large company learned of the insurance, a favorable settlement was reached upon terms that are confidential.


IP Abatement Claim: Manufacturing Industry

The policy holder pursued multiple parties, including the manufacturer of infringing product who ended production and negotiated license agreements with multiple former purchasers.

This policy holder used the same policy three times to go after multiple infringers.

Once one suit was settled, they paid back the amount of the policy used to the carrier, which reinstated the policy limits.

Once limits were reinstated, they pursued another infringer.


IP Defense InsuranceThe solution to the gap left in CGL policy coverage IP risks

Intellectual Property RiskCGL Policy


IP Defense Insurance: Bridges the gap left by the GL policy


IP Defense Insurance: Bridges the gap left by the GL policy


IP Defense Claim: Electronic Security Industry

A leader in the electronic security industry was successfully defeated in the favorable plaintiff venue in the Eastern District of Texas by the policy holder.

If the policy holder would have lost, they could have easily been put out of business. Fortunately, the money was available to fund a successful defense.

The policy holder was quoted as saying, “You never know when you will need insurance.”

It was the first verdict for a defendant out of the past 20 cases tried and decided in this district.


IP Defense Claim Scenario: Retail Industry

A manufacturer/distributor of shoes was accused of infringement by a non-practicing entity (NPE) a.k.a ‘patent troll’

The NPEs had successfully enforced their patents against smaller, less-funded manufacturers, forcing them into signing license agreements and paying royalties.

Unlike the other small manufacturers that were forced to give up their rights to manufacture, the policy holder used the power of the Defense policy to fight the weak allegation.

Simply holding a Defense policy can ward off frivolous lawsuits.


IP Insurance: Benefits


Multi-Peril Insurance:First Party Coverage


Multi-Peril Insurance: First Party Coverage


Unauthorized Disclosure Insurance:


Unauthorized Disclosure Insurance: An Example of how an

Unauthorized Disclosure policy may workUnauthorized Disclosure by:(Party Type)

Coverage Type Willful Disclosure Involved?

Associated 3rd party-including employee

Blended Coverage No

Named policy holder Pure Insurance No

Employee or Associated 3rd party

Pure Insurance No

Employee- (Willful) Pure Insurance Yes: < 3 yrs. post hire date & > 1 yr. post disclosure

Employee- (Willful) Bond Yes: > 3 yrs. post hire date &> 1 year post disclosure

Associated 3rd party Bond Yes: > 1 year post disclosure


Case Distribution: Top 10 Industries (1995-2010)


Top 10 Decisions by Industry

Overall Rank

Industry 1995-2000 Number of Cases

2001-2005 Number of Cases

2006-2010 Number of Cases

1995-2010 Total Cases

15 Yr. % Overall

Increase

1 Consumer Products 82 80 121 283 48%

2 Biotechnology/Pharma 40 71 89 200 123%

3 Industrial/Construction 66 57 70 193 6%

4 Medical Devices 42 45 67 154 60%

5 Computer Hardware/Electronics 24 32 92 148 283%

6 Business/Consumer Services 19 33 58 110 205%

7 Software 15 23 52 90 247%

8 Chemicals/Synthetic Materials 31 16 32 79 3%

9 Automotive/Transportation 24 25 29 78 21%

10 Telecomm. 14 22 38 74 171%

PriceWaterhouseCoopers, 2011 Patent Litigation Study


When to be thinking about IP insurance






Assessing IP Risk Does the company have pending or issued patents, trademarks or copyrights?

Does the company own trade secrets; or, are they charged with safeguarding a third party’s confidential information?

Does the company have sought-after technology on products and/or processes?

How competitive is the market in which they operate, and what is their market share?

Is the company concerned about being sued for infringement or suing another for infringing their IP?

Does the company have any current defensive coverage under an existing general liability or business owner’s policy for patent, trademark or copyright infringement; or, do they think they may have coverage?

Can your company afford to self-insure an intellectual property lawsuit?


Assessing IP Risk Does the company have a risk management strategy for their intellectual

property; if so, what is it?

Does the company have a contractual obligation to indemnify against IP infringement; if so, are they required to insure the indemnification?

Is the company prepared to license their products, processes and/or their intellectual property?

Does the company have a recovery plan in the event of the loss of an IP lawsuit?

Is the company concerned about patent trolls or grasshopper-induced litigation?

Is there a pending sale, merger and/or acquisition in the company’s future; if so, are the decision-makers aware that IP policies may be transferrable and/or assigned to the purchaser? (Multi-year policies are available to assist in these transactions.)


To obtain premium indications and/or to complete an application, or, if you have questions, please contact:

IPISCJanet Zahnd, Sales/Marketing [email protected]


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Intellectual Property Insurance 1 The webinar will begin shortly. There is no audio at this time. This presentation