When an Idea is More Than Just an Idea: Insurance Coverage of Business Method Patent Infringements Suits Under Advertising Injury Provisions of Commercial General Liability Policies

idea in order to be eligible for patent protection. 75 Further, according to the United States Court of Appeals for the Federal Circuit, mental processes themselves are not patentable unless they are associated with some other statutory subject matter.176 Even a practical application of the method will not create patent eligibility for a mental process. 77 The Court of Appeals for the Federal Circuit has explained that "the application of only human intelligence to the solution of practical problems is no more than a claim to a fundamental principle." 78 Ultimately, this may lead to confusion if one tries to distinguish the patent-ineligible method that is deemed to be an abstract idea from the application of that idea, which is patentable. 3. Under CGL Insurance Policies. While patent infringement is generally not covered under the advertising injury provision of a CGL policy, typical advertising injury provisions do cover the "misappropriation of advertising ideas or style of doing business." 79 Thus, by default, if a business method (as a style of doing business) was patented, and that business method was subsequently misappropriated, the CGL policy would cover patent infringement. Historically, patent infringement has not been covered by CGL policies.18 Now, insurers have started including specific exclusion clauses in their CGL policies in order to explicitly state that the policy does not cover patent infringement.' 8' For example, an exclusion clause might look like the following: Intellectual Property This insurance does not apply to any liability arising out of or directly or indirectly related to the actual or alleged publication of utterances of oral or written statements of any type claimed as an infringement, violation, or defense of any of the following rights or laws: 1. copyright, other than infringement of copyrighted advertising materials; 2. patent; 3. trade dress; 4. trade secrets; or 1s Diamond v. Diehr, 450 U.S. at 188 (citing Mackey Radio & Tel. Co. v. Radio of Am., 306 U.S. 86, 94 (1939)). 176 In r Comiskey, 554 F.3d 967, 979 (Fed. Cir. 2009). 177 Id. 178 In re Bilski, 545 F.3d at 965 (en banc) (citing In re Comiskey, 499 F.3d 1365, 1377-79 (Fed. Cit. 2007)). 179 Simensky & Osterberg, supra note 16, at 332 (quoting a standard 1986 ISO CGL policy). 180 Rowe, supra note 29, at 25. 81 THIELE, BLAKEWAY & HOSCH, supra note 13, at 48. 650 [Vol. 18:631 20 Journal of Intellectual Property Law, Vol. 18, Iss. 2 [2011], Art. 13 http://digitalcommons.law.uga.edu/jipl/vol18/iss2/13 WHEN AN IDEA IS MORE THAN JUST AN IDEA 5. trademark or service mark or certification mark or collective mark or trade name, other than trademarked or service marked titles or slogans.1 Ultimately, the trend in insurance policies may be towards refining and expanding policy language to specifically indicate if and when patent infringement lawsuits will be covered. Had the patent infringer in Hyundai had such an updated policy, the lawsuit might never have been filed. Unfortunately, courts will continue to be faced with insurance policies that do not specifically address coverage of patent infringement lawsuits until all of the old, unrefined policies expire and are replaced by newer, more specific policies.