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90 Denver L. Rev. F. 1 (2013)

handle is hein.journals/dnvrlwfv90 and id is 1 raw text is: PATENT INFRINGEMENT LITIGATION AND THE COMMERCIAL GENERAL LIABILITY INSURANCE POLICY: ARE INSURERS OBLIGATED TO INDEMNIFY AND DEFEND UNDER ADVERTISING INJURY PROVISIONS? Jared Najjar' INTRODUCTION American patent law has historical and constitutional foundations that protect the interests of inventors.2 A patent confers the right to ex- clude others from making, using, selling, offering for sale, or import- ing a claimed invention for a period of twenty years from the date the patent application was filed.3 This exclusionary right serves the dual purpose of encouraging innovation by guaranteeing protection from in- fringement4, while providing inventors a financial incentive to disclose their inventions. In cases of patent infringement, a patent holder may sue an alleged infringer for damages. However, many insurance providers offer commercial general liability insurance as a safeguard against patent infringement liability. COMMERCIAL GENERAL LIABILITY INSURANCE POLICIES - ADVERTISING INJURY CLAUSE Commercial general liability (CGL) insurance developed as a col- lection of standardized forms produced by the Insurance Services Office, Inc.5 These policies are designed to protect an insured party from liabil- ity for particular damages incurred by third parties arising out of the in- sured's business operations.6 CGL insurance policies generally consist of coverage for bodily injury, property damage, and advertising 1. J.D. Candidate, 2014, University of Denver Sturm College of Law 2. U.S. CONST. art. I, § 8, cl. 8 (The Congress shall have power... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.). See generally Patent Act of 1790, Ch. 7, 1 Stat. 109- 112 (Apr. 10, 1790) (noting that the first U.S. patent statute was passed in 1790, by the first Con- gress). 3. 35 U.S.C.A. § 154 (West 2012). 4. Infringement is defined as: An act that interferes with one of the exclusive rights of a patent, copyright, or trademark holder. BLACK'S LAW DICTIONARY, 796 (Bryan A. Garner ed., 8th ed. 2004). 5. Todd M. Rowe, Specialty Insurance for Intellectual Property: Additional Security for Owners of Intellectual Property Assets, 19 DEPAUL J. ART, TECH. & INTELL. PROP. L. 3 (2008) (discussing the history of commercial general liability policies). 6. Shane R. Heskin, Ch. 4: Commercial General Liability Policies, in MASSACHUSETTS LIABILITY INSURANCE MANUAL (Ralph T. Lepore III et al. eds., 2011). 1

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