Case law in the area of patent infringement has held that patent infringement cannot occur in the course of an insured's advertising activities as a matter of law. In 1996, the United States added “offer to sell” as one of the enumerated offenses of direct patent infringement to 35 U.S.C. §271(a). Since that time, there has been little deviation or fluctuation from the above mentioned principle, especially in litigation where a patentee’s search for insurance coverage from their CGL policies “Adverting Injury” provision. This Comment discusses the necessity of the court system to reexamine the modification to 35 U.S.C. §271(a), specifically, the impact of the addition of “offer to sell” as an enumerated offense of patent infringement. Additionally, this Comment proposes that courts should acknowledge that when offering for sale a potentially infringing device is the act of patent infringement, alleged infringers should be entitled to secure financial assistance from their CGL policy issuers for the costs associated with the duty to defend their infringement claims.
Willard L. Hemsworth III, The Nexus Requirement and the Fatal Injury: Does an Offer to Sell an Infringing Product Give Rise to a Duty to Defend Under a CGL?, 1 J. Marshall Rev. Intell. Prop. L. 344 (2002)