Reinsurance Law Blog : Oklahoma Insurance Lawyer & Attorney : Stauffer & Nathan Law Firm

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In DISH Network Corporation, et. al. v. Arch Specialty Insurance et. al., Dish filed a lawsuit against Arch (insurers) for failure to defend and indemnify against a patent infringement claim.  DISH reasoned that the patent infringement suit was equivalent to an “advertising injury” which the insurers had a duty to defend and indemnify. The district court granted summary judgment to the insurers because the underlying complaint did not allege an “advertising injury” under the policies issued to DISH.

 The insurers disputed whether a claim for patent infringement can ever constitute “advertising injury” within the relevant policy language.  The Court of Appeals concluded that it can.  The Court also considered whether the specific allegations in this case brought the underlying suit within the policy language.  The Court relied on several courts decisions that held where an advertising technique itself is patented, its infringement may constitute advertising injury.  See, Hyundai Motor Am. v Nat. Union Fire Ins. Co. of Pittsburgh, Pa., 600 F.3d 1092, 1102 (9th Cir. 2010); Amazon.com Int’l, Inc. v. Am. Dynasty Surplus Lines Ins. Co., 85 P.3d 974, 977 (Wash. Ct. App. 2044).

The Court used a causation analysis to identify the alleged injury and its origin. The Court determined that the infringement occurred in the advertising itself and reversed and remanded the grant of summary judgment.