Strategic Considerations for IP Litigators and Corporate Counsel Prosecuting and Defending IP Disputes: Securing Coverage Despite Limited Intellectual Property Coverage

By David A. Gauntlett

Published in Landslide Vol. 11 No.2, ©2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Intellectual property (IP) insurance can be a quagmire. This article navigates the slender path to securing coverage for a variety of IP claims, with a principal focus on commercial liability policies under Insurance Services Office (ISO) forms for “advertising injury” offenses that intersect with IP claims. More expansive IP coverage arises under directors and officers (D&O) and errors and omissions (E&O) policies for IP claims against individual officers or directors. While E&O policies include more targeted and less restrictive IP exclusions, suggestions on how to plead inside or outside of coverage are presented. Finally, how coverage benefits are accessed that best serve the needs of defense and claimant’s counsel is explained.

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