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David A. Gauntlett is the principal of Gauntlett & Associates.  Mr. Gauntlett is lead counsel in intellectual property antitrust coverage disputes pending in over 30 states throughout the United States and is also responsible for many precedent-making insurance coverage cases involving patent, trademark, and copyright infringement, as well as trade secret misappropriation and unfair competition claims.

Mr. Gauntlett is a nationally recognized speaker and has spoken for C.L.E. credit to organizations which include the American Bar Association, Section of Business Law, Section of Intellectual Property; Section of Litigation, and Section of Tort and Insurance Practice; American Conference Institute; American Electronics Association of California and Arizona; California Bar Association, Intellectual Property Division; Eastern New York Patent Law Association; New York Patent Trademark and Copyright Association; Oregon Patent Law Association; Practicing Law Institute; University of Houston; University of Texas; Washington Patent Law Association; Washington D.C. Patent Law Association; and Wisconsin Intellectual Property Association.

Mr. Gauntlett has also served as an adjunct professor at the University of California, Berkeley, School of Law, Boalt Hall, where he taught a class entitled Insurance Coverage for Intellectual Property, Antitrust and E Commerce.

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I have been smitten with insurance coverage law for over two decades. I recognized early on that insurance coverage could benefit clients through funding litigation which was substantively meritorious but otherwise beyond their economic means. In 1997 I discovered a fascinating interconnection between patent infringement lawsuits and opportunities for insurance coverage under a 1976 ISO CGL policy covering “piracy” as an “advertising injury” offense. I learned that this policy form – which itself was never underwritten but was a marketing response to even broader forms of coverage – offered a broad scope to encompass one of the most challenging areas of legal practice: patent litigation.

After procuring an agreement to defend under a reservation of rights to litigate the defense of a patent infringement suit funded by an insurer, and securing with the assistance of co-defense counsel a favorable result, I obtained a favorable resolution of the right to a defense before the same federal court handling the underlying lawsuit. The principle established, that “piracy” coverage might encompass claims for inducement of patent infringement lawsuits, subsequently led to victories in a number of cases, including a published decision before the Nebraska Supreme Court in 1995.

Subsequent cases addressing coverage for other intellectual property torts such as trademark infringement, copyright infringement and trade secret misappropriation yielded further favorable coverage decisions. As insurers narrowed or modified their policies, new opportunities to explore the intersection between insurance and IP law presented themselves. Antitrust counterclaims asserted in such lawsuits presented exciting opportunities to explore coverage thereunder which could in many instances fund the actual affirmative pursuit of intellectual property claims to the extent that they were defensive of the asserted antitrust allegations.

The intellectual challenges posed by this intersection of IP, antitrust and insurance law, as well as the dynamic character of the contract language that supports coverage therein, became a quest leading to a number of speeches and articles. These in turn were reassembled, reformatted and reconfigured into a treatise in 1999, Insurance Coverage of Intellectual Property Assets (Aspen Law and Business).

Since then, assisting companies in purchasing the broadest forms of coverage available, evaluating potential coverage under a variety of policy forms for a number of business tort claims beyond the core IP and antitrust litigation, and creatively seeking opportunities for insurance in a number of different forums under distinct and variant legal approaches led me to opine on insurance issues under the law of a number of states, as well as to discuss the applicability of United States law abroad in Europe.

The journey continues as opportunities to explore this nexus include a range of multi-media/cybernet policies that a number of major corporations have procured and benefitted from in broadening the scope of their coverage against a range of often unpredictable and expensive business tort risks.

Supported by a number of attorneys, Gauntlett & Associates has continued to be a trailblazer in making new law in these areas of practice. Founded on April 1, 1995 – coincidentally the date my only daughter, Berkeley, was born in 2001 – the firm continues to be at the forefront of this intriguing intersection in which new legal arguments and approaches are required to maximize the possible insurance benefits to corporations throughout their worldwide operations. This blog is the next step in the evolution of the journey and will offer an ongoing dialogue on these intriguing issues. 

David A. Gauntlett

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