De-risking disruption in intellectual property insurance

As a technology lawyer, I have the privilege of seeing the passion, vision and genius behind the innovation that drives some of the most disruptive technology companies around.

By definition, disruption means interrupting the normal course, and disruptors usually have a new and innovative take on a new product, design or brand.

In general, emerging companies do a good job managing some of the risks associated with being a disruptive business, but I rarely see an appreciation for de-risking the impact of intellectual property litigation on a business from trademark, patent and copyright trolling by market incumbents.

Don’t think errant troll litigation can happen to you? Well, listen to this.

During a recent trip to Washington, D.C., I happened to run into celebrity chef Robert Irvine (known for Food Network’s “Dinner: Impossible”) at baggage claim in the airport. So what do I do? I start chatting him up about intellectual property of course. I shared with him why I was in town and was curious whether intellectual property played a substantial role in his businesses. In response to my curiosity, he shared with me a brief episode in the history of one of his brands as sold through one of his companies. He shared with me that in the not-too-distant past, a large snack manufacturer sued him. The manufacturer alleged that a brand sold by Irvine’s company infringed the trademark and trade dress of the manufacturer.

Irvine went on to share that not only did he develop a respect and appreciation for his trademark attorney during this time, he also developed a keen appreciation for the value of intellectual property insurance. His intellectual property insurance supported his legal action, making it possible to hire a great legal team that went against the snack behemoth to protect his business. In the end, Irvine continues to sell his products under the same brand name and has even extended his line of product offerings.

So here’s what you need to know about de-risking disruption. There are numerous IP insurance products that exist in the marketplace. Here are a few.
• Patent defense insurance covers the cost of a company defending a patent infringement suit.
• Patent enforcement insurance covers the cost of a company suing on the company’s patents.
• Commercial general liability insurance covers the cost of a company defending against copyright, trade dress or slogan infringement allegations.

Whether and when to invest in a specific intellectual property insurance product is a decision made on a case-by-case basis with the help of a qualified insurance professional. Keep in mind there are numerous caveats, and policies vary.

However, in most cases, a carrier will want to understand whether an intellectual property attorney regularly advises a business on IP risk. Whether a company routinely obtains copyright, trademark and patent legal counsel and opinions can be a crucial factor in whether a carrier chooses to write a policy.
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Editor’s note: Angela Grayson is the principal and founder of Precipice IP, a legal firm in Bentonville. She is a registered patent attorney and is admitted to the U.S. Supreme Court Bar. The opinions expressed are those of the author.