Biotech Values

[zipjet]

This is a bit complex. Not sure I can explain it well given the time I am willing to devote to it.

Patent law allowing treble damages embodies a public policy, one that says you should not violate patents and if that violation is such as to invoke treble damages, we are doing that to punish you as a wrong doer. So there is a question as to whether insurance should/may be purchased to transfer the risk to another so that you can feel more liberty to violate patents and threaten the property rights of others. Asking that question seems to fit the facts you suggest may exist.

At the first level there is the question whether the insurance policy is found to exist, is honored or is enforceable. IF it is, then one could argue that the purpose of the treble damage statute has been unlawfully/improperly subverted. That could lead an aggrieved party to seek additional punitive damages as a substitute for the punishment (treble damages) that was transferred to the counterparty. At least to me, the thought given to transferring the risk to insurance, suggests malice - intent to injure - even a reckless disregard of the injury violating the patent may cause.

As I said before, I am not familiar with the law in this area. I do not know what would happen if this theory was raised. Nor do I suggest that there are not many arguments against this approach. However, there are lots of considerations appropriate to the underlying decision.

ij