What Is Intellectual Property Insurance?

Patent insurance refers to the insurer applying insurance to the insurance company for the purpose of granting patents. During the insurance period, the insurance company compensates the insurer for the investigation costs and legal costs incurred for patent protection in accordance with the contract.

Patent insurance

Patent insurance means

Patent rights in

The basic function of insurance is to put

Patent insurance includes patent enforcement insurance and patent infringement liability insurance, which provide equal protection to both parties to a patent infringement dispute.

(I) Content and Evaluation of Patent Execution Insurance

The first patent execution insurance policy, infringement exclusion insurance, was launched by IntellectualProperty Insurance Service Corp., hereinafter referred to as "IPISC".

1. Contents of patent execution insurance

Patent execution insurance is "attack-type" insurance, which is applicable to the types of insurance that patentees insure in patent lawsuits in order to remove obstacles to their enforcement of patent rights and possible losses. Therefore, patent execution insurance is suitable for individuals or enterprises that are unable to enforce their patent rights due to insufficient financial resources.

The coverage of patent execution insurance is the cost of all patent litigations claiming defendant infringement. Attorneys' fees, settlement fees, court fees, expert testimony fees and other expenses are included, but the costs of lost damages are not included.

In a patent invalidation counterclaim or a patent invalidation claim, the expenses incurred by the insured for the defense are also included in the litigation costs. A counterclaim for invalidation of patents refers to that in a patent infringement lawsuit, the defendant brought any legal proceedings against the insured's insured patent to invalidate the patent. The insurer's burden of defense costs should confirm that the counterclaim's defense costs are only for the insured patent, and do not include any counterclaim defense costs not related to the patent litigation; in the patent invalidation appeal, the patent invalidation confirmation should be confirmed The plaintiff in the lawsuit is the defendant in the patent infringement lawsuit, and the insurer has the obligation to underwrite.

In the patent execution insurance, there is a provision of "compensation distribution clause", that is, when the insured obtains the winning compensation, the insurance company can get a certain percentage of feedback from it.

The current IPISC insurance policy stipulates that the insurer shall be able to pay an upper limit of 1.25 times the amount of litigation costs it pays, and request the distribution of a reasonable right or damages for the insured.

2. Analysis of the compensation distribution clause in patent execution insurance

The "compensation distribution clause" stipulated in the patent execution insurance, even if the insured does not win the case, but reached an economically difficult mutual agreement with the infringer, the insurance company can also propose to the insured according to the "compensation distribution clause" The requirement to pay a certain percentage of the costs of litigation as the compensation allocation amount seems to help the suspicion of litigation.

So is the "compensation distribution clause" a help lawsuit? Since the compensation distribution clause is a clause in the insurance contract, its purpose and significance should be analyzed from the perspective of the entire insurance contract; and the patent insurance contract is signed before the patent infringement occurs, and is insured according to the agreement after the occurrence of the insurance accident People are obliged to provide relevant information to the insurer, so the dominance of litigation is still in the hands of the insured. It can be seen that the compensation distribution clause is not helpful to litigation.

(II) Contents and Evaluation of Patent Infringement Liability Insurance

Swiss Re International Business Insurance Co. Ltd. also launched a similar product-a model insurance policy for patent infringement damages, hereinafter referred to as "model insurance contract".

1. Contents of patent infringement liability insurance

Patent infringement liability insurance is established for no-fault infringers. It protects the expenses required by the insured against patent infringement lawsuits and the risk of being liable to recover reasonable compensation from the patentee. The subject matter of the insured is Liability for a third party.

The scope of insurance covered in the model insurance contract is that the insured person claims rights and claims compensation for faultless infringement caused by the manufacture, use, import, distribution, advertising, offer sale or sale of the insured product during the insurance period. At that time, the insurer will bear its required expenses. Generally, before the first production or sale of a patented product, an insurance company will require the insured to obtain legal advice from a patent attorney that "there is no infringement of other valid patents", so that claims will only be awarded when an insurance incident occurs.

The coverage of patent infringement liability insurance includes rights that may be recoverable by patentees and loss of benefits. It also includes the costs incurred to fight against patent infringement litigation. It mainly includes defense costs, settlement costs and damages costs, including defense costs. It can also be divided into attorney fees, expert testimony fees, and application for injunction fees. The amount of claims is mostly fixed. Invalid defenses will consume the costs of litigation costs and reduce the amount of other compensation such as damages. Therefore, attention should be paid to saving litigation costs.

The exclusion clauses include indemnities caused by the patentees themselves, such as infringements and malicious infringements caused by the insured's crimes or deliberate fraud; there are also insurers caused by certain acts of government agencies, such as When the government agency compensates for the damage caused by its interests, the insurer does not need to bear the liability for compensation. This is to prevent the dual status of the player and referee of the government agency and affect the legitimate rights and interests of the insurance industry, so it is excluded from the scope of insurance.

2. Analysis of Insurance Benefits in Patent Infringement Liability Insurance

Insurance benefits are divided into existing benefits and anticipatory benefits, and anticipatory benefits are divided into positive anticipation benefits and accumulated anticipation benefits. In patent infringement liability insurance, when others claim rights and damages caused by the insured's infringement, the insurer will pay its litigation costs and damages costs. Its insurance interest is the "interested relationship between the insured and its legal liability", which is a "negative expectation interest" in the "expected interest". This negative reduction of property occurs only when others claim rights and the law is liable for compensation. If legal liability is not incurred, the total property will not be changed.

In German talk, it is considered that the insured object of negative property insurance is not a specific property, and the value of the insured object cannot be estimated in advance, which denies the existence of the "insured object value" in negative insurance. Existing, only a certain time point is postponed until the insured accident occurs. Regardless of whether negative property insurance includes the concept of insurance value, it can be determined that in patent liability insurance, the subject matter of the insurance cannot be estimated in advance with money.

In practice, the method of calculating the compensation amount is to compare the insurance amount with the actual compensation amount of the insured, and use the lower amount as the compensation amount.