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In an insurance coverage dispute, it is crucial to gain access to the insurance company's claim files that reflect the insurer's investigation and handling of the claim. These materials are often the best source of information for determining whether an insurer fulfilled its contractual obligation to investigate and handle the claim in good faith. Because the ultimate success of a policyholder's claim may depend on how much of this information the policyholder is able to obtain, insurers often attempt to shield their investigations and claims handling behind the wall of the attorney-client privilege and/or the work product doctrine. However, courts largely have rejected efforts by insurance companies to use privilege as a shield to deny discovery of investigation and claims handling material or information.
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As directors' and officers' insurance is intended to provide coverage for claims by third parties, most, if not all, D&O policies contain an exclusion commonly referred to as an "insured v. insured exclusion." The exclusion bars coverage for claims brought by one insured against another insured. Historically, the exclusion was drafted in response to "friendly" and collusive lawsuits arising out of the savings and loan bank crisis in the early to mid-1980s. Essentially, friendly lawsuits were being filed by the failed banks against their directors and officers in an effort to recoup loan losses from the proceeds of D&O policies. Thus, the primary purpose in drafting the insured v. insured exclusion was — and continues to be — to prevent a corporation from suing its own directors and officers to obtain the benefits of coverage for itself, rather than third parties.
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Since 2001, numerous insurance companies have sought to impose on asbestos liability claims so-called "Documentation Requirements" ("DRs"), seeking to limit coverage provided by its policies to those claims that meet certain criteria. Those insurance companies assert that the DRs are necessary to counter the growing number of unsubstantiated asbestos-related bodily injury claims brought against policyholders. Generally, the DRs require a policyholder to provide medical documentation and data to show each asbestos injury for each claimant, as well as provide product identification and exposure history. <i>See</i> Scott Moser, Mealey's Seminar, 16 <i>Mealey's Litig. Rep.</i> 12 (Dec. 11, 2001) (an attorney for Equitas speaking about the documentation requirements). The policyholders, on the other hand, see the DRs as unreasonable conditions to coverage that are not found anywhere in the policy language. They argue that in many cases it may be reasonable for them or for their primary carriers to settle or to have settled claims for which there is not yet fully developed information, to avoid, <i>inter alia</i>, increased defense costs and the possibility of a much higher judgment if the information developed is unfavorable.
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The Federal Circuit piqued the interest of the patent bar when it issued its decision granting Edward H. Phillips' petition for rehearing <i>en banc</i>. <i>Edward H. Phillips v. AWH Corp. et al.</i>, 376 F.3d 1382 (Fed. Cir. 2004) ("<i>Phillips I</i>"). Patent practitioners expected that the court would finally provide the bar with a clear understanding of how claims should be interpreted and construed. The court's guidance would help not only patent prosecutors so that claims could be crafted with appropriate scope to provide maximum coverage for a client's invention, but also aid patent litigators so that efforts could be focused on specific disputed claim terms and their construction rather than scatter shot attacks on every possible claim term in the hope that one of the shots would hit home. Whether the Federal Circuit provided any guidance to the bar has yet to be determined. However, it is clear that despite the fervent hope of the patent bar, no new law was made with the <i>Phillips en banc</i> decision.
You have a brilliant idea and decide to engage a patent attorney to draft a patent application on it. In a matter of months, you will have an issued patent that you can take to the bank, license to others, or use to stop rival companies from competing with you. Right? Not so fast, says the U.S. Patent and Trademark Office.
Features
Monetizing non-core IP is rational, practical, and increasingly common. The IP literature is now rich with examples of accelerated monetization of cash-generating IP through the transfer of assets and risks, usually assisted through some form of structured finance. The literature is even richer with countless examples of painstakingly slow monetizations of non-cash-generating IP usually through joint ventures or venture capital-backed transactions. We describe a case in which non-core IP was monetized rapidly after which the bulk of the reward potential remained in the hands of the original IP owners. We suggest that when non-core IP is generated consequent to market demand in the course of the Parent's operations, and merely happens to reside outside the Parent's core business, a rapidly structured Parent-financed spin off can create accelerated financial and strategic benefits.
Compliance -- dotting all the i's and crossing all the t's in a regulated business -- has always been difficult. The slightest error can lead to fines, a business shutdown or even jail time for executives.
Let me say one word: Internet. Now, how about a couple more: Broadband Access. It's my contention that the security problems we face today in the forms of unsolicited e-mail, virus infection, phishing scams and the dreaded identity-theft issues are the direct result of giving access to powerful computers attached to the Internet via broadband access to users who are unqualified to own, use and operate such technology.
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The attorney's own realm is no different from any other revenue-generating quarter -- e-commerce or good old-fashioned bricks and cement -- in one truism of the Technology Age: Document management is the most daunting challenge for today's law office. Regardless of the size of the law firm, mountains of file folders and forests of paper are piling up daily in every law office as quickly, and as momentously, as in the offices of their clients. Traditionally, the answer to this challenge has been to hire more clerical staff, more paralegals, and more attorneys and then to scramble to assess and assign outsourcing contracts to help erode some of the paper mountains popping up all around the legal-office landscape.