1. The issues associated with the initiative
Intellectual property (hereafter referred to as IP) is the branch of law governing the protection of intangible assets through titles granting exclusive rights:
- patents (technical inventions);
- distinctive signs: trademarks (names, logos etc.);
- industrial models or designs (the form or appearance of an industrial product);
- semi-conductor topographies;
- plant breeders' rights;
- geographical indications and appellations of origin.
In a broad sense, this branch of law also covers industrial secrets and unfair competition.
In principle, it is difficult to determine the direct effectiveness of a patent, at least until the right is infringed. In addition to providing the right holder with an exclusive right to a technical invention, a patent also constitutes a powerful deterrent as regards competitors. Nonetheless, obtaining a patent does not absolutely guarantee a monopoly over the exploitation of the invention. The patent right holder must always be vigilant and monitor new patent applications filed, the commercialisation of new technical developments, etc. in order to detect any infringements and protect his rights.
The position of a company holding a large and homogenous patent portfolio in a given technological sector will be stronger and as such the associated investments will result more profitable. Even the "weakest" patents within such a portfolio will have the same deterrent effect as regards competitors, who will refrain from investing time, energy and money in finding a way to enter the technological sector dominated by the company which is the patent portfolio right holder.
A patent represents a medium-term investment, which is why there is an implicit incertitude as regards its economic valuation from a ten to twenty-year perspective. A patent is like "heavy industry": it requires consistency and patience. However, as yet no effective insurance policy exists covering intellectual property rights.
Nevertheless, there are insurance policies which are aimed at providing the insured party with effective economic security, both in cases where third parties infringe his intellectual property rights ("offensive" insurance) and where the insured party is accused of having infringed third party rights ("defensive" insurance).
2. The intellectual property right insurance policy
We propose an insurance policy for intellectual property rights which fulfils both offensive and defensive functions. Under specific conditions, this insurance policy covers the following items:
- Consultation fees for specialised IP lawyers, legal representatives or agents;
- Domain name registration fees;
- The deposits required by court for the confiscation of works infringing IP rights;
- Procedural fees before the INPI, EPO, OHIM, ECJ, a judicial authority or a national, community or international conciliation authrity.
This insurance policy is liable to exclude the following points:
- Disputes associated with authors' rights or literary and artistic property;
- Rights which have been obtained without the assistance of a qualified representative or authorised lawyer;
- Rights for which the lawyer or representative has not paid annual or renewal fees within the deadline;
- Acts of negligence which are the responsibility of the lawyer, legal counsel, or representative (for example, failing to respond to a request from the INPI/EPO/WIPO, lapse of trademark rights for tolerating unauthorised use).
The insured party should ask its IP lawyer or representative to report incidents by filling out a form in which the counsel indicates its capacity and authorisation to act as an IP specialist, in order to prevent abuse of the insurance claim procedure.
For further information on this intellectual property right insurance policy, please contact Mr Jean-Bernard Condat at condat@chrystol.com.
|
