Tenth Circuit Finds Potential Insurance Coverage for Patent Infringement Claims Under "Advertising Injury" Provisions


On October 17, the U.S. Court of Appeals for the Tenth Circuit, applying Colorado law, reversed a district court decision and held that a patent infringement claim may constitute an "advertising injury," thereby triggering, at a minimum, defense coverage under a variety of provisions in commercial general liability policies providing coverage for "misappropriation of advertising ideas." DISH Network Corp. v. Arch Specialty Ins. Co., ___ F.3d ___, 2011 WL 4908108 (10th Cir. Oct. 17, 2011). In reaching its decision, the Tenth Circuit reviewed and analyzed an array of insurance coverage cases that had addressed the nature and scope of coverage under the "advertising injury" provisions, which highlight the nuanced issues that arise in coverage disputes in underlying intellectual property lawsuits.

Underlying Patent Infringement Suit and Tender of Claims

This coverage action arose out of an underlying patent infringement suit filed by Ronald A. Katz Technology Licensing, L.P. (the underlying plaintiff) against DISH Network (DISH) in California federal district court. The underlying plaintiff alleged that DISH infringed one or more claims in each of 23 patents by

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