Tag Archives: property and liability

Should You Insure Your Intellectual Property?

While industrial companies always insure their physical plants, they rarely insure their intellectual property even though it is often the most valuable thing the company owns.

Core IP, which defines and individualizes the company, is most often the company’s inventions — patented machinery, devices and technology. But it could be something as seemingly simple as the copyrighted graphics and designs on a wildly popular designer handbag or a top-selling toy. Trademarks can be invaluable IP — for instance, Coca-Cola’s trademark is recognized worldwide.

Because IP is intangible, it can be easily stolen — though the proper term, “infringement,” sounds more polite, theft is often what it is. An engineer can walk out the door with knowledge about your patented technology and trade secrets. A counterfeiter can copy your designs and trademarks as fast as a computer or photocopier works. The Web, of course, is paradise for infringers.

On the other hand, your company can stand accused of infringing someone else’s intellectual property. Let’s say it’s a series of patents on complex machinery. You’re convinced the suit is groundless, but you still have to hire an expensive law firm and bring in expert witnesses. In the end, you win. Congratulations. You’re still out a few million dollars in legal fees.

Your general liability policy gives you very limited coverage for your liability for your alleged infringements against others. (It’s generally restricted to infringing copyrighted advertising materials.) And it gives you no coverage to sue infringers. If you want significant coverage, you have to get a special policy. 

Given the amount of litigation — for example, 2,830 patent cases in 2006 — IP insurance is well worth considering.

Because there are two potential money pits — someone ripping off your IP and someone accusing you of ripping off theirs — there are two distinct types of IP insurance.

Defensive IP policies take effect when someone sues you for infringing their intellectual property. Even if your company is scrupulous, inadvertent infringement can happen. These policies are also sometimes called “IP infringement defense insurance” or “IP liability insurance.” They cover both your legal costs and the cost of the judgment if you lose. Judgments can run into the millions, and, besides paying out damages, you’ll be forced to stop making the infringing product.

A defensive policy kicks in when another party demands either money from your company or non-monetary relief, such as an injunction. Only a handful of insurers offer these policies. Depending on the carriers, you can buy coverage limits of anywhere from $5 million to $15 million. Minimum deductibles vary, and some insurers also insist on coinsurance, meaning you would pay larger out-of-pocket expenses.

Offensive IP policies are effective when someone else infringes your intellectual property. That is, the policy will provide money so your company can hire a law firm to sue the company that infringed your patent, trademark or copyright or stole your trade secrets. You will have to get permission from the insurer to hire a law firm and start litigation.

Why would you need an offensive policy? Unlike personal liability lawyers, who get paid by taking a percentage of the settlement if they win, IP law firms generally demand cash on the barrelhead for their services. If your company is a startup or a small organization without a lot of money in the bank, you might not be able to afford to hire a topnotch IP litigator to go after the bad guys. If you have a trademark or copyright case, the legal fees might be manageable, but going after a patent infringer takes millions. Your IP could be stolen by a bigger company, and there’d be little you could do about it. If the infringed patents are your competitive advantage, your company might even be forced out of business eventually. There’s only one known insurer that underwrites offensive IP insurance.

Do you need IP insurance and, if so, how much of what kind? There are no cut-and-dried answers. If your company manufactures generic goods like plywood, you may not need it, unless your manufacturing process is a trade secret. But if your company’s inventions, designs and trademarks are crucial to your company’s success, you may. Start by assessing how important your company’s IP is, and how vulnerable it is to being infringed by someone else or having someone claim that you’re the infringer. Once you have a clearer idea of the risks and potential consequences, you can start to investigate IP insurance systematically and determine if it’s worth it.

Ultimately, you may decide you don’t need IP insurance. But the time to investigate is now. Once you have been sued or your IP has been infringed, it will be too late. 

Minding the Gap: Investment Risk Management in a Low-Yield Environment

A significant component of managing a property/casualty insurance company’s investment portfolio is gap management — ensuring that asset cash flows and returns always exceed claims and expenses by a healthy amount. Because risk-based capital levels, as well as loss and combined ratios, inform various aspects of an insurer’s existence on everything from basic solvency to growth capacity to credit rating, protecting and growing this margin is an imperative. Yet as nearly every insurer is aware today, maintaining portfolio income levels and minding that gap is an adventure fraught with peril.

This article sets forth some reminders about concentration risk management, appropriate duration strategies and suggests possible modes of investment, such as ETFs, to boost yields while maintaining liquidity.

For P/C insurers, while catastrophe-related losses in 2012 were lower than in 2011 (notwithstanding some estimates that Hurricane Sandy could cost upward of $20 billion in the final tally), the liability side of the ledger also remains challenged, with a middling ability to raise premiums in many market segments due in part to slow economic growth.

For life insurers, product guarantees combined with low interest rates on long-dated investment options make for an uncomfortable forecast, though life insurers typically have more time to work through the low rate dilemma than do P/C insurers.

Insurer balance sheets continue to be squeezed from both sides, and, based on the Fed’s last bit of commentary, insurers could still face another two years of policy-suppressed interest rates. In the midst of this yield drought, it is easy to get out over one’s skis by moving into areas of the market with which one is not familiar.

The trends are similar across time and market cycles, although the downturn from 2008 to present has been deeper and lasted longer than many other cycles. According to SNL Financial, the aggregate net investment yield for P/C insurers has declined from 4.20% in 2008 to 3.68% in 2012. When yield is scarce, fixed income investors of all types — not just insurers — tend to begin seeking yield by stretching credit parameters or duration targets, and sometimes both.

For insurers, this has the potential to create exposure to capital volatility, as credit “drift” in a portfolio might lead to heavier weightings in certain lower quality parts of the fixed income market. This might equate to a greater allocation to BBB category securities, or to a particular segment such as financials, which have maintained generally higher credit ratings on their debt, but whose performance may correlate more closely with an insurer’s own performance during another downturn.

There has also been a general trend among insurers toward diversifying into asset classes that many have not historically utilized: REITs, MLPs (master limited partnerships), bank loans, emerging market debt and even gold, which offers no current income but simply the opportunity for capital appreciation.

The foregoing can create a new operating framework for insurers who manage their portfolios in-house, because it requires a more active portfolio management effort than has historically been employed. The effort needs to focus on questions, such as:

What are the proper thresholds for allocation to the lower levels of the investment grade bond universe? How does extending duration play into this decision? Given such changes to an insurer’s portfolio, what is the impact on risk-based capital of market corrections of varying magnitudes? How quickly can the portfolio be repositioned in down-trending markets? What is the liquidity profile of so-called alternative asset classes? What is their exposure to event risk?

Fueling these portfolio management questions is the substantial increase in issuance by those credits that make up the Barclays U.S. Aggregate Bond Index—a proxy that many total-return insurance portfolios benchmark themselves against. There were over 5,000 issues brought to market in 2012, while over the preceding 24 years the average has been approximately 3,300 issues per year.

Further complicating an insurer’s decision-making framework is the fact that since 2005 the trend line in credit quality of the issues in the Agg index has been toward lesser-rated credits. This is especially evident with new issuance: Approximately 47% of issuance in 2012 was BBB, while the average over 25 years was 37%. The glut of issuance in 2012 saw greater nominal numbers of fixed income issues in the AAA, AA and A credit categories, but as a percent of total issuance both the AA and A credit categories were below 25-year averages.

In the context of this data, it may be easier for an insurer to — somewhat unwittingly — let portfolio credit quality drift when the universe of available issues has itself drifted! Compound this with entry into unfamiliar and potentially less liquid asset classes, and it is easy to see that minding the gap never took so much work.

Despite these numerous market challenges, we must be constructive about finding responsive solutions for insurance portfolios. Standing still is not really an option, as inaction and inattentiveness carry their own risk. In some regards, solutions are simple, though that is not to say they are easy. To wit:

Risk management in the portfolio. Keep a close eye on concentration issues, whether by credit rating, industry or issuer.

Understand the specific dynamics that portfolio targets create, such as that a focus on more highly rated credits can lead to an overweight in financials. Conversely, there are many solid BBB names, including many industrials and utilities whose steady performance over time fits well in a portfolio that aims for low volatility.

There are also a host of “new” BBB names resulting from credit downgrades in recent years.

Credit research and selection and an understanding of the liquidity of a given bond are still paramount issues.

Maintain a defensive posture. Inflation does not appear to be looming large at the moment, but fixed income market volatility over the past few years—and even the past few months—has been significant. Extending duration on the core capital portfolio could create undesired downside capital volatility when interest rates rise.

Keeping a defensive posture can mean keeping portfolio duration slightly short of benchmark duration, as it can allow active portfolio managers to seek alpha, i.e., excess return above a market index, through sector and name selection, while subjecting the insurer’s portfolio to less price volatility.

Take risk smartly. This is a principal issue when insurers begin to extend their portfolio into asset classes where they have not historically invested. The modality of the investment can be as important as the asset class.

There are now more than 85 NAIC-rated exchange-traded funds available for insurers, a number of which cover NAIC-3 and NAIC-4 rated investments, such as convertible bonds, preferred stocks and high-yield debt. If an insurer determines that it wishes to seek out additional yield in the high-yield space, is it better to do so via individual bonds or via a single ETF composed of several hundred securities?

Embrace discomfort. This is more of a psychological tactic than a portfolio management tool. But understand that market dislocations, disruptions, downturns and disorder are likely to have a quicker and more widespread impact across economies and industries given global economic connectedness.

The capacity to assimilate market cues and quickly make adjustments to a portfolio can safeguard an insurer’s capital.

For an insurance portfolio, having a risk budget can function akin to a stop-loss policy—if the portfolio or a sub-component erodes by “X” percent over a period of time, the position is reduced or eliminated according to the risk budget parameters. And pursuant to the prior bullet point, the modality of the investment is a component of swiftly executing on a plan. It’s unlikely an insurance portfolio can avoid entirely the pain that down markets can inflict; the key is having a plan to minimize the pain.

For a P/C carrier’s investment portfolio, having a risk budget can function akin to a stop-loss policy on the underwriting portfolio.

These preceding points are not overly complex. Yet they require an active focus and a dexterity that market conditions have not always demanded of insurance portfolio managers. The current environment demands a daily discipline to make sure: that the good risk management practices overlay portfolio construction, that the insurer’s portfolio is positioned with an appropriate duration given market and inflation outlooks, and that any “plus” or return-seeking asset classes complement the rest of the portfolio and remain as liquid as possible.

There are plenty of spots where one can get tripped up and see some erosion in the all-important gap between assets and liabilities, but there are also numerous opportunities for an insurance portfolio to thrive while maintaining low volatility.

Step lively, have a plan and execute on it. The gap shouldn’t be enough to trip us up!

This article first appeared in Carrier Management Magazine.