Insurance coverage issues are of paramount importance to claimants and defendants in many types of litigation and cases involving patent, trademark, trade secrets, and copyright infringement are no exception. Identifying applicable liability policies, distinguishing between covered and non-covered claims, and calculating “covered” damages is exceedingly difficult as evidenced by the volume of insurance coverage litigation surrounding IP claims. One problem is allocating expenses between defense costs and affirmative claims for relief where there are counterclaims asserted. Moreover, there are frequently subtle conflicts of interest between the insurer and insured. Not only must the prudent lawyer identify available coverages, but the lawyer must also be sensitive to the potential liability of agents and brokers who may have failed to procure proper coverage or who failed to undertake a proper analysis of the insured’s business and failed to make appropriate and necessary insurance recommendations. All of these issues require lawyers skilled both in the merits of the particular business dispute and the nuances of insurance coverage law.
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