IP Risk Management: Protection, Protection, Protection
When I was practicing, I'd tell my clients that litigators and trial lawyers were the profession's surgeons. We were the people they wanted to avoid because surgery is costly and potentially life-threatening.
Transactional lawyers, I stressed, were the Internists of the profession and they should be consulted early and often.
Because we can't prevent litigation any more than we can prevent strokes and heart attacks, we have INSURANCE. If your business has protectable trade secrets, a patent portfolio, valuable copyrights, coveted trademarks/names or any other type of intellectual property (and all businesses do) mosey on over to the Gauntlett on Insurance Blog's recent post Restoring Balance to the IP/Insurance Interface.
Most major corporations have procedures, either through existing personnel or through the aid of consultants, that:
• Identify and evaluate the full range of IP;
• Determine the level of patent, copyright or trademark infringement by the company or others;
• Reduce exposure to legal action by managing risk;
• Protect residual risk through insurance.
The challenge comes in the last component through identifying products in the marketplace that can create similar opportunities for reimbursement and designing protocols to assure that the maximum policy benefits available to the company are properly secured.
How challenging is it to "assure that the maximum policy benefits available to the company are properly secured"? Allow me to share my experience.
Though I have pursued coverage claims and bad faith actions against insurance carriers, by far the vast percentage of my coverage litigation practice was on behalf of insurance carriers providing excess CGL or D&O insurance to Fortune 50 companies. Occasionally (not often) I'd also take a look at smaller claims to determine in the first instance whether coverage was available. Some of those claims were from companies seeking coverage for patent or copyright infringement litigation.
Here's my advice. If you believe yourself vulnerable to suit, don't rely solely on your risk management department. Get an annual insurance check-up by a specialist in IP insurance coverage issues. Then get a second opinion from an insurance litigator. I know that sounds expensive. But it's a drop in the bucket compared to the first six months of IP litigation. Think:
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electronic discovery
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complex procedural manuevering
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depositions of your key personnel
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media coverage
Get the picture? Not only do you not want to hire insurance coverage litigators, you never ever want to see a mediator or settlement officer with insurance company experience. Why not? Because by the time you're willing to sit down with the opposition to settle a case with the aid of a third-party neutral, you've already lost no matter how great a deal you cut to terminate the litigation.
So if you can't save yourself from having a coronary, at least buy yourself a policy of insurance that will cover the likely (and unlikely) claims that put your company's life at risk.
(and, yes, insurance companies do look for ways to deny you coverage; make it improbable or very very risky for a carrier to do so)
