The Everett court, thus, held that an offer to sell a patented product constitutes a separate act of infringement, covered by the advertising injury provisions of a general commercial liability policy. Similarly, FileNet leaves the door open for coverage for a claim of inducement to infringe arising out of advertising activity. New Policies Companies should be aware that not all general liability policies have the same standardized form of advertising injury coverage. Thus, in each case it is necessary to evaluate the advertising injury coverage to determine its application to the injury in question. Companies should consult with their brokers to make certain that their potential advertising injury coverage for intellectual property torts has not been erased by exclusions.
New products are also available now for patent infringement insurance in the marketplace.
These include both traditional defensive coverage if an insured is sued for patent infringement, and also offensive coverage that will pay the cost to an insured forced to sue a third party that is infringing the insured's patent. In the past, attempts by the insurance industry to underwrite these coverages have been criticized as cumbersome and expensive. However, newer iterations continue to appear and should be investigated. All rights reserved.