Appeals Court says Dish Network Corp. insurers must provide legal defense for patent infringement

Between 2001 and 2004 Dish Networks purchased a series of general liability and excess liability policies from five insurance companies, all of which were to defend and indemnify Dish against claims alleging “advertising injury.” The decision hinged on the definition. The policies used this language:

-Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services;

-Oral or written publication of material that violates a person’s right to privacy;

-Misappropriation of advertising ideas or style of doing business; or

-Infringement of copyright, title or slogan.

Chief Judge of the 10th Circuit in Denver, Mary Beck Briscoe, wrote: “we disagree with [the district court’s] ruling that the patented means of conveying advertising content at issue here could not be ‘advertising ideas’ within the meaning of Dish’s commercial general liability policies.”

IP managers should work closely with risk managers and monitor insurance policy addenda that now might try to re-define “advertising injury.”