Patent litigation insurance: good for the defendant, better for the insurer

"Controlling The Costs Of Intellectual Property Litigation", an article by Sanford E. Warren Jr. of Akin Gump Strauss Hauer & Feld LLP, was published yesterday in The Metropolitan Corporate Counsel (here). It raises some familiar issues and points to substantial escalation in the cost of litigating patents and other IP rights in the United States:

"In 2009, the cost of the average patent lawsuit, which was $5,000,000 in 2007, rose to $5,500,000. The increased cost of patent litigation was indicative of the overall trend in intellectual property (IP) litigation. Across the board, the cost of IP litigation has risen substantially in recent years. Since 2001, the cost of patent, trademark and copyright lawsuits has risen 48 percent, 38 percent and 73 percent respectively. And with estimates showing the cost of IP litigation rising at almost 20 percent a year, there is no indication that the trend of rising costs will end anytime soon".

After reviewing the steps that might be taken to avoid litigation and the development of a sensible litigation strategy, Warren turns to insurance policies, about which he sayss:

" ... The policy language itself is the most important factor in determining coverage. Courts will not go outside the plain meaning of the language in the policy to provide relief for the insured. For example, in Discover Fin. Servs. v. Nat'l Union , 527 F. Supp. 2d 806 (N.D. Ill. 2007) (applying Illinois law), the court granted summary judgment for an insurer, finding that it did not have a duty to defend the insured in its patent infringement action. Despite the insured's attempt to redefine the claims through interrogatories, the court held that the insured's claims did not qualify for coverage.

Traditionally, companies have relied solely on the CGL [= commercial general liability] policy to cover their business risks, but as the insurance industry has adjusted to avoid providing protection for newly evolved risks, like IP litigation, companies should consider purchasing specialized insurance policies to ensure coverage, where and if available".

While insurance policies, and the manner in which they are interpreted, may change from jurisdiction to jurisdiction, the thing that remains constant is the factor which both unites and divides insurer and insured -- neither wants to have to pay out. The insured is always in a stronger position than the insured in that it both calculates the odds and fixes the premiums, while it may be able to reduce or escape liability to pay where the insured is successful or where the construction of the policy terms works in its favour. This is why there's a strong argument in favour of groups of businesses within a specific sector clubbing together to evaluate their own risks, set their own rates and give guidance as to how their terms might be applied or construed.