(A) the content and analysis of patent enforcement insurance
The first patent implementation insurance policy, that is, infringement exclusion insurance, was introduced by intellectual property insurance service company (hereinafter referred to as "IPISC").
1. Contents of patent implementation insurance
Patent execution insurance belongs to "aggressive insurance", which is suitable for the types of insurance insured by the patentee to eliminate obstacles and possible losses in patent litigation cases. Therefore, patent implementation insurance is applicable to individuals or enterprises that are unable to implement their own patents due to lack of financial resources.
Patent implementation insurance covers all patent litigation expenses claiming the defendant's infringement, including attorney's fees, settlement fees, litigation fees, expert appraisal fees and other expenses, but does not include damages for losing the case.
In the patent invalidation counterclaim or patent invalidation confirmation lawsuit, the expenses paid by the insured for defense are also included in the litigation expenses. Patent invalidation counterclaim means that in patent infringement litigation, the defendant brings any legal action to invalidate the insured patent, such as the defendant claims that his product has not been infringed or the insured patent is invalid. Here, the insurer's commitment to the defense fee should confirm that the defense fee of counterclaim only covers the insured patent, excluding any counterclaim defense fee unrelated to patent litigation; In the patent invalidation lawsuit, it should be confirmed that the plaintiff in the patent invalidation lawsuit is the defendant in the patent infringement lawsuit, and the insurer has the insurance obligation.
In the patent implementation insurance, there is a "compensation distribution clause", that is, when the insured gets the compensation for winning the case, the insurance company can get a certain proportion of feedback from it.
According to the current IPISC policy, the insurer may request the distribution of reasonable royalties or damages obtained by the insured in winning the case, and the upper limit is 65438+ 0.25 times the amount of litigation fees paid by the insurer.
2. Comment on the compensation distribution clause in patent implementation insurance
According to the "compensation distribution clause" stipulated in the patent enforcement insurance, even if the insured fails to win the case, but an economic agreement is reached with the infringer, the insurance company can also require the insured to take out a certain proportion of his litigation expenses as the compensation distribution amount according to the "compensation distribution clause", which seems to be suspected of helping the lawsuit.
So, does the "compensation distribution clause" belong to helping litigation? Since the compensation distribution clause is a clause in the insurance contract, it is necessary to analyze its purpose and significance from the perspective of the whole insurance contract; Moreover, the patent insurance contract was signed before the patent infringement. According to the agreement, the insured has the obligation to provide the insurer with corresponding information after the insurance accident. Therefore, the initiative of litigation is still in the hands of the insured, so it can be seen that the "compensation distribution clause" is not suspected of helping the lawsuit.
(B) the content and analysis of patent infringement liability insurance
Swire International Commercial Insurance Co., Ltd. has also launched a similar product-the model insurance policy for patent infringement damages, hereinafter referred to as the "model insurance contract".
1. Contents of patent infringement liability insurance
Patent tort liability insurance is established for no-fault infringers, which provides protection for the expenses of the insured against patent infringement litigation and the risk that the patentee may get reasonable compensation. The subject matter of insurance is the liability of the insured to the third party.
The scope of coverage in the model insurance contract is that during the insurance period, the insured has no-fault tort caused by manufacturing, using, importing, distributing, advertising, offering or selling the insured products, the third party claims rights and demands compensation, and the insurer bears the required expenses. Usually, before the patented product is produced or sold for the first time, the insurance company will require the insured to obtain a legal opinion from the patent lawyer that "other valid patents have not been infringed", so as to make claims when the insurance event occurs.
The coverage of patent tort liability insurance includes the loss of rights and interests that the patentee may obtain. And the expenses incurred in the anti-patent infringement litigation mainly include defense fees, settlement fees and damages, among which defense fees can be divided into attorney fees, expert testimony fees and application for injunction fees. The amount of claims is mostly fixed, and invalid defense will make claims spend on litigation costs, while reducing the amount of claims for other compensation such as damages, so we should pay attention to saving litigation costs.
Exclusion liability includes compensation caused by the patentee himself, such as infringement and malicious infringement caused by the insured's crime or intentional fraud. There are also some acts of government agencies, such as when government agencies compensate their interests, insurers are not liable for compensation. This is to prevent the dual identity of government agencies as "players and referees" from affecting the legitimate rights and interests of insurers, so it is excluded from the insurance coverage.
2. Analysis of insurable interest in patent tort liability insurance
Insurable interest is divided into existing interest and expected interest, and expected interest is divided into positive expected interest and accumulated expected interest. In patent tort liability insurance, when others claim rights and damages due to the insured's infringement, the insurer will pay their litigation costs and damages. Its insurable interest is "the interest relationship between the insured and its legal liability", which belongs to "negative expected interest" in "expected interest". This negative property reduction will only happen if others claim rights and the law bears the liability for compensation. If there is no legal liability, the common property will not change.
In German general theory, it is considered that the subject matter insured in negative property insurance is not specific property, so it is impossible to estimate the value of the subject matter insured in advance, and the existence of "the value of the subject matter insured" in negative insurance is denied. However, some scholars believe that the "value of the subject matter insured" in negative insurance still exists, but the definite time point is postponed until after the insurance accident. Whether negative property insurance includes the concept of insurable value or not, it is certain that in patent liability insurance, the subject matter of insurance cannot be estimated in advance with money.
In practice, the calculation method of claim amount is to compare the insured amount with the actual compensation amount of the insured, and take the lower amount as the claim amount.