Opinion
This case presents the question of whether a liability insurer providing coverage for “advertising injury” is required to defend its *861 insured in an action charging the insured with inducement of patent infringement. When the respondent, Pacific National Insurance Company (Pacific) refused to provide such a defense to the appellant, Mez Industries, Inc. (Mez), Mez filed this action for declaratory relief and breach of contract. The trial court sustained Pacific’s demurrer without leave to amend and thereafter entered a judgment of dismissal. 1
Because we conclude that the advertising injury provisions of Pacific’s policy did not provide coverage to Mez for inducement of patent infringement and, in any event, such coverage would have been precluded by Insurance Code section 533, 2 we conclude that no potential for coverage existed as a matter of law and thus no duty to defend ever arose. The trial court ruled correctly and we therefore affirm.
Factual and Procedural Background 3
Mez is engaged in the business of manufacturing, distributing and selling components used for the connection of joints in airflow conduction systems (such as central heating and air conditioning systems). It manufactures these components and advertises them for sale through wholesalers to mechanical and sheet metal construction contractors who use the components to create duct systems in various building projects throughout the United States.
On April 10, 1995, Ductmate Industries, Inc. (Ductmate) filed a complaint against Mez in the United States District Court for the Northern District of Ohio in an action styled as Ductmate Industries, Inc. v. Mez Industries, Inc., No. 4:95CV00815 (hereinafter, the Ductmate action). Stripped to its relevant essentials, the complaint in that action alleged that Mez had induced its customers to infringe at least four of Ductmate’s patents for certain “flange-type duct joint assemblies] and seal arrangement[s] [therefor].” 4
*862 Ductmate’s alleged claims of inducement of patent infringement pursuant to 35 United States Code section 271(b) were not based upon Mez’s manufacture of the individual component parts for a duct system joint assembly, but rather upon those activities of Mez that caused or encouraged others to take those component parts and put them together in a way which infringed Ductmate’s patents. Those activities by Mez necessarily involved its advertising activities, which encouraged and solicited others to buy Mez’s products and assemble them in a particular manner. For example, Ductmate featured in its own advertising its “Slide-On Connectors” for use in putting together a conduction system and provided step-by-step instructions for assembly and installation. Mez has distributed a variety of advertising brochures, mailers, and promotional booklets depicting HVAC duct joint assemblies which graphically illustrated how Mez’s comers, flanges and seals could work as substitutes for Ductmate’s Slide-On-Connectors corner units and related products. In addition, Mez’s assembly and installation instructions produced the same HVAC ducts as depicted in Ductmate’s advertising materials.
At least for our purposes, there is no contention that Mez’s products themselves infringed upon any of Ductmate’s patents. (See fn. 4, ante.) Rather, the relevant essence of the Ductmate action is that Mez’s advertising, marketing and sales promotion activities solicited, encouraged and induced engineers, contractors, distributors and builders to purchase Mez’s products and to combine and assemble them in a manner which did infringe Ductmate’s patents.
Mez tendered defense of the Ductmate action to Pacific on or about July 6, 1995. Mez asserted that it was entitled to coverage and a defense of the action under the “Advertising Injury” section of Pacific’s liability policy. As relevant to the issues before us, that policy promised both indemnity and a defense for an injury caused by one or both of the following two “offenses” committed in the course of advertising goods, products or services in the coverage territory during the policy period;
(1) “Misappropriation of advertising ideas or style of doing business,” and
(2) “Infringement of copyright, title or slogan.” 5
On or about November 22, 1995, after a review of the matter, Pacific denied coverage and refused to provide a defense. On June 4, 1997, Mez *863 filed this action alleging essentially the forgoing facts and asserting that Pacific had wrongfully denied coverage. Mez alleged that it was entitled to a defense and sought a declaratory judgment for Pacific’s breach of its contractual obligations under the policy. 6
Pacific attacked this complaint by demurrer, asserting that, as a matter of law, there could be no potential for coverage and thus no duty to defend. Pacific argued that the claim of inducing patent infringement is simply not a covered offense under the advertising provisions of the policy and, in any event, coverage for such an act would be precluded under section 533. The trial court agreed and, on January 9, 1998, sustained Pacific’s demurrer without leave to amend. 7 A judgment of dismissal was thereafter entered on January 27, 1998. Mez has filed this timely appeal.
*864 Contentions of the Parties
Mez contends that there is at least a potential for coverage under the Pacific policy. It argues that the offenses of (1) “misappropriation of advertising ideas or style of doing business” and (2) “infringement of copyright, title or slogan” are both ambiguous and each could reasonably include the alleged inducement of patent infringement. Therefore, Mez concludes, Pacific had a duty to provide Mez with a defense to the Ductmate action and the trial court erred when it sustained Pacific’s demurrer and entered a judgment of dismissal.
Pacific rejects these contentions and reasserts the same basic arguments which the trial court accepted and upon which it based its ruling.
Discussion
1. Standard of Review
A demurrer tests the sufficiency of the allegations in a complaint as a matter of law.
(Pacifica Homeowners’ Assn.
v.
Wesley Palms Retirement Community
(1986)
*865 2. Advertising Injury Coverage Cannot Be Established in This Case
Advertising injury liability has become part of the coverage offered in commercial general liability (CGL) policies only recently. Prior to 1986, this coverage was offered by a separate broad form endorsement for which an additional premium was charged. It is important to understand that this coverage is entirely distinct from the bodily injury and property damage coverage which has long been the standard fare of CGL policies.
Bodily injury and property damage coverage is dependent upon an “accident” or “occurrence” and coverage is not triggered until an injury or damage results. (Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 1999) *|fll 7:1001 to 7:1003, pp. 7C-1 to 7C-3.) Advertising injury, on the other hand, applies to injury resulting from the commission of certain specified offenses. (Ibid.) It does not depend upon an accident, but may be based (and often is) on the intentional acts of the insured. Thus, even certain intentional torts may be covered (subject, of course, to the statutory exclusion under section 533, which we discuss below). (Croskey et al., at 7:1002.1 to 7:1002.2, 7:1004 to 7:1004.2, pp. 7C-2, 7C-4.) The event triggering coverage is the commission of the specified offense during the policy period, provided that it is committed in the course of advertising goods, products or services. (Id. at 7:1008 to 7:1009, p. 7C-5.)
a. There Is No Coverage for a Patent Infringement Claim
The specified “offenses” with which we are concerned here are the (1) “misappropriation of an advertising idea or style of doing business” and (2) “infringement of copyright, title or slogan.” If Mez’s alleged inducement of the infringement of Ductmate’s patents fits either of these two offenses, and was committed in the course of Mez’s advertisement of its own products, then coverage would be available. It is doubtless because of this latter requirement that Mez does not argue on appeal that coverage is provided for the direct patent infringement which is also alleged in the Ductmate action. Under
relevant
applicable federal law (i.e., prior to the 1996 effective date of the 1994 amendment), patent infringement occurs when a party makes, uses or sells a product incorporating a patented invention. (35 U.S.C. § 271(a).)
8
Where the claim in the underlying action is that an insured directly infringed
*866
the patents of another by the
sale
of its products, rather than by the form of the insured’s advertisements, then the patent infringing act did not occur in the course of the insured’s advertising activities within the meaning of the relevant policy language.
(Bank of the West
v.
Superior Court
(1992)
b. There Is No Coverage for an Inducement of Patent Infringement Claim
Federal law also proscribes
inducing
patent infringement. (35 U.S.C. 271(b).) This section provides that “[w]hoever actively induces infringement of a patent shall be liable as an infringer.” However, the alleged infringer must be shown to have
knowingly
induced infringement.
(Water Technologies Corp.
v.
Calco, Ltd.
(Fed. Cir. 1988)
Unlike direct infringement, it is possible for inducement to infringe to occur during the course of advertising activities; indeed, advertising has
*867
been found to be a sufficient basis for a claim of inducement.
9
(U.S. Fidelity & Guar.
v.
Star Technologies
(D.Ore. 1996)
Having in mind these general principles, we address the two questions which are raised by the parties’ briefs as to whether coverage was provided for such conduct under Pacific’s policy: (1) is the inducement of patent infringement an advertising offense within the meaning of the policy and, in any event, (2) is coverage under the policy for such an act barred by section 533? 10
(1) Inducing Patent Infringement Does Not Constitute an Advertising Injury Offense
Pacific argues that neither direct patent infringement nor the inducement thereof is included within either the (1) “misappropriation of an advertising idea or style of doing business” or (2) “infringement of copyright, title or slogan.” Mez responds that those terms are ambiguous, as they are subject to at least one reasonable interpretation which would include patent infringement or at least its inducement.
It is now settled that the interpretation of an insurance policy is no different than the interpretation of contracts generally.
(AIU Ins. Co.
v.
Superior Court
(1990)
On the other hand, “ ‘[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.’ . . . This rule, as applied to a promise of coverage in an insurance policy, protects not the subjective beliefs of the insurer but, rather, ‘the objectively reasonable expectations of the insured.’ . . . Only if this rule does not resolve the ambiguity do we then resolve it against the insurer. ... [^0 In summary, a court that is faced with an argument for coverage based on assertedly ambiguous policy language must first attempt to determine whether coverage is consistent with the insured’s objectively reasonable expectations. In so doing, the court must interpret the language in context, with regard to its intended function in the policy. . . . This is because ‘language in a contract must be construed in the context of that instrument as a whole, and in the circumstances of that case, and cannot be found to be ambiguous in the abstract.’ ” (Bank of the West v. Superior Court, supra, 2 Cal.4th at pp. 1264-1265, italics in original, citations onmted.)
The
Bank of the West
court made it clear that it was no longer enough to find an abstract ambiguity or a meaning for a disputed word or phrase which was simply ’’semantically permissible.”
11
In order to conclude that an ambiguity exists which will be construed against an insurer, it is necessary first to determine whether the coverage under the policy, which would result from such a construction, is consistent with the insured’s
objectively reasonable expectations. (Cooper Companies
v.
Transcontinental Ins. Co.
(1995)
We recently had occasion to apply these principles in the context of a
trademark
infringement dispute. In
Lebas Fashion Imports of USA, Inc.
v.
ITT Harford Ins. Group
(1996)
Understandably, Mez asks us to apply the same reasoning in this case and to find the policy’s misappropriation offense ambiguous. However, we cannot go that far. In
Lebas,
we did not find that clause to be ambiguous in the abstract. We only reached the conclusion we did in the
context
of (1) the language of the policy, (2) the general circumstances of that particular case and (3) “common sense.” (See
Old Republic Ins. Co.
v.
Superior Court
(1998)
While we are aware of at least two cases which have concluded that the language in pre-1986 policies which described the offense of “piracy” was ambiguous enough to embrace patent infringement (see
New Hampshire Ins.
v.
R.L. Chaides Const., supra,
On the other hand, there are a number of cases which have concluded that the new language is not ambiguous,
at least in the context of a coverage claim for patent infringement,
and that no coverage is provided. Obviously, if patent infringement cannot properly be characterized as an advertising injury offense, then neither could its inducement. In
Owens-Brockway Glass
v.
International Ins. Co.
(E.D. Cal. 1995)
When the insured sued its insurer to recover the judgment, the court concluded that patent infringement simply was not covered. The
OwensBrockway
court applied the same principles of policy construction discussed above and then stated: “Plaintiff argues that patent infringement is included within the policy language insuring advertising injury as ‘infringement of title’ or ‘misappropriation of style of doing business.’[
16
] Plaintiff consults the dictionary to find that the word ‘title’ can refer to ownership of property such as a patent. Under this argument, the phrase ‘infringement of. . . title’ could refer to infringement of a patent. Similarly, plaintiff argues that ‘misappropriation of style of doing business’ could refer to patent infringement. Neither claim is reasonable, however, when the words ‘title’ and ‘style of doing business’ are examined in the context of their use and in the light of common sense. ftO First, and perhaps most significantly, there is the glaring absence of the word ‘patent’ anywhere in the policy language defining advertising injury. The language defining ‘advertising injury’ includes ‘slander [,]’ ‘libel,’ ‘right of privacy,’ ‘advertising ideas,’ ‘style of doing business,’ and ‘copyright.’ These are specific terms connected to well known legal categories, just as a claim of patent infringement is a distinct legal claim. But there is not a mention of ‘patent’ anywhere in the definition or elsewhere in the policy. Surely if coverage for patent infringement were anticipated there would be some mention of the term itself just as ‘copyright’ is explicitly listed. Several courts have commented vigorously on the significance of the omission of any reference to patent in the definition of advertising injury: ‘[I]t is nonsense to suppose that if the parties had
*872
intended the insurance policy in question to cover patent infringement claims, the policy would explicitly cover infringements of “copyright, title or slogan,” but then include patent infringement,
sub silentio,
in a different provision, by reference to ‘unauthorized taking of . . . [the] style of doing business.’ [Citation.] ... ‘It is even more absurd to suggest that the phrase “infringement of . . . title,” as used in the clause “infringement of copyright, title or slogan”, encompasses patent infringement or inducement to infringe. Basic common sense dictates that if these policies covered any form of patent infringement, the word ‘patent’ would appear in the quoted ‘infringement’ clauses.’ [Citation.] Moreover, as noted above, the policy language at issue here does not include the terms ‘piracy’ or ‘unfair competition’; it lists well recognized and narrow categories of legal claims among which patent infringement is notably absent. HO Second, neither the term ‘infringement of title’ nor ‘misappropriation of style of doing business’ suggests coverage of patent claims when these terms are viewed in the context of their use. One of the most significant parts of that context is that both terms are part of the definition of ‘advertising injury.’ There is nothing about the term ‘advertising injury’ itself that remotely suggests coverage of patent infringement.” (
In
Gencor Industries
v.
Wausau Underwriters Ins. Co.
(M.D.Fla. 1994)
We think the analysis of these federal decisions is persuasive and we adopt their reasoning here. In the context of the facts and circumstances of this case, the policy terms “misappropriation of an advertising idea or style of doing business” and “infringement of copyright, title or slogan” simply could not be reasonably read by a layperson to include either patent infringement or the inducement thereof. This conclusion is consistent with the principles of contextual reasonableness which we have already summarized. Clearly, the Ductmate patents did not involve any process or invention which could reasonably be considered an “advertising idea” or a “style of doing business.”
With respect to Mez’s argument that there is coverage under the “infringement of . . . title . . .” provision in the policy, we reach the same conclusion. Our construction of that phrase is informed by the doctrine of
ejusdem generis
under which a term is interpreted by reference to the surrounding language. (See, e.g.,
American Motorists Ins. Co.
v.
Allied-Sysco Food Services, Inc.
(1993)
A number of courts agree with this conclusion.
(Owens-Brockway Glass
v.
International Ins. Co., supra,
Recently, another court had occasion to construe this same policy language in a case where coverage was sought for a claim of patent infringement asserted in the underlying lawsuit. That court, as do we, placed emphasis on the absence of any reference to “patent infringement” in the policy language. The court then stated, “The drafters of this policy placed ‘title’ between ‘copyright’ and ‘slogan.’ A slogan is a brief, attention-getting phrase used in advertising or promotion. A copyright is the exclusive right, granted by statute to an author or original creator to reproduce, publish and sell the matter and form of a literary, musical or artistic work or production. Neither of these terms has any apparent connection to the concept of ownership interests in property, let alone the legal right to make use, sell or offer to sell a patented invention. Hence, while dictionaries attribute several meanings to the word
title,
including the legal ownership of property (Black’s Law Diet. (5th ed. 1979) p. 1331, col. 1), when read in the context of the CGL policy, ‘title’ can only mean a distinctive name, designation or other appellation.”
(Maxconn Inc.
v.
Truck Ins. Exchange
(1999)
Thus, when read in the context of the entire policy, the general circumstances of this case and simple common sense, the advertising injury provisions simply do not extend to patent infringement. Moreover, even if the policy language is not totally free from some ambiguity, Mez could not, in light of such contextual considerations, have had an objectively reasonable expectation of coverage for a claim of inducing wilful patent infringement. Therefore, such a claim would not be covered as an advertising injury offense.
(2) Coverage for Inducement of Patent Infringement Is Barred by Section 533
As our brief initial discussion of inducing patent infringement demonstrated, in order to be found liable, a party must have the specific intent to induce another to infringe the patent holder’s prior right.
(Manville Sales Corp.
v.
Paramount Systems, Inc., supra,
In
Dynamis, Inc.
v.
Leepoxy Plastics, Inc.
(N.D.Ind. 1993)
A “wilful act” under section 533 will include either “an act deliberately done for the
express purpose
of causing damage or intentionally
*876
performed
with knowledge
that damage is highly probable or
substantially certain
to result.”
(Shell Oil Co.
v.
Winterthur Swiss Ins. Co.
(1993) 12 CaI.App.4th 715, 742 [
Although it was speaking in the context of an environmental pollution case, the Shell Oil court properly summarized the rule which governs the scope and application of section 533: “We conclude that section 533 prohibits indemnification of more than just intentional acts that are subjectively desired to cause harm and acts that are intentional, wrongful, and necessarily harmful regardless of subjective intent. A ‘wiljul act’ under section 533 must also include a deliberate, liability-producing act that the individual, before acting, expected to cause harm. Conduct for which the law imposes liability, and which is expected or intended to result in damage, must be considered wrongful and willful. Therefore, section 533 precludes indemnification for liability arising from deliberate conduct that the insured expected or intended to cause damage.” (12 Cal.App.4th at pp. 742-743, italics added.)
We believe that the circumstances presented here clearly come within this analysis of the proper application of section 533. An inducement *877 to patent infringement under 35 United States Code section 271(b), as alleged in the underlying Ductmate action, could not be committed except as a knowing, intentional and purposeful act that is clearly wrongful 19 and necessarily harmful. A defendant would have to intend the act, that is, to intend that the induced party infringe the patent. Such an impermissible motivation is necessary to liability for the act of inducement and it thus involves wilful and intentional misconduct. Obviously, damage would flow in the form of a loss to Ductmate and a gain to Mez through the sale of its products. Plainly, such a result would necessarily have to be'within Mez’s knowledge. Indeed, it would be Mez’s presumed purpose. This is enough to satisfy the requirements of section 533.
Thus, even if the post-1986 policy language embraced patent infringement, its inducement would be excluded under section 533. Two recent cases which have directly considered this question have expressly so held.
(Aetna Casualty & Surety Co.
v.
Superior Court
(1993)
3. Pacific Had No Duty to Defend Mez in the Ductmate Action
What Mez seeks to accomplish in this action is the vindication of its contention that Pacific owed it a duty to defend it in the Ductmate action. It is well settled that where there is no potential for coverage under a liability policy, the insurer owes no duty to defend.
(Montrose Chemical Corp.
v.
Superior Court
(1993)
*878
However, where a denial of indemnification is based on the application of section 533, it does not necessarily follow that no duty to defend exists. As we stated in
B & E Convalescent Center,
“ ‘[S]ection 533 precludes only
indemnification
of wilful conduct and not the
defense
of an action in which such conduct is alleged. [Citation.] . . . [1Q . . . [E]ven though public policy or section 533 precludes an insurer from indemnifying an insured in an underlying action the duty to defend still exists so long as the “insured reasonably expect[s] the policy to cover the types of acts involved in the underlying suit[.]” [Citation.]’ [Citation]. Put another way, ‘if the reasonable expectations of an insured are that a defense will be provided for a claim, then the insurer cannot escape that obligation merely because public policy precludes it from indemnifying that claim.’ [Citation.]”
(B & E Convalescent Centers. State Compensation Ins. Fund, supra,
As we have explained, however, no potential for coverage exists in this case and Mez could not have had any objectively reasonable expectation of such coverage. Similarly, to the extent that section 533 alone is relied upon to preclude coverage, we see nothing in this record or in the arguments of Mez which would prompt us to conclude that Mez had any reasonable expectation of a defense even though indemnification was excluded. (See generally, B & E Convalescent Center v. State Compensation Ins. Fund, supra, 8 Cal.App.4th at pp. 99-102.) 21 Therefore, for the reasons discussed above, Pacific owed no duty to defend Mez in the Ductmate action and the trial court correctly sustained Pacific’s demurrer to Mez’s complaint.
Disposition
The judgment is affirmed. Pacific shall recover its costs on appeal.
Klein, P. J., and Kitching, J., concurred.
On December 21, 1999, the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied March 22, 2000.
Notes
Following oral argument, we invited a number of amicus curiae briefs from interested parties (selected by the parties and ourselves). These briefs have been gratefully received and fully considered.
Insurance Code section 533 (hereinafter section 533) provides: “An insurer is not liable for a loss caused by the wilful act of the insured; but he is not exonerated by the negligence of the insured, or of the insured’s agents or others.”
As Pacific’s demurrer to Mez’s complaint was sustained without leave to amend, we accept the facts alleged in that pleading as true. The facts we recite are based on those allegations and, for our purposes, are not in dispute.
Ductmate also alleged other misconduct by Mez including active direct infringement of Ductmate’s patents. However, on appeal, the only alleged conduct which Mez claims justifies a defense of the Ductmate action by Pacific are the allegations that Mez induced others to infringe Ductmate’s patents. Mez made this clear in the initial paragraph of its opening brief: “Mez seeks a determination that Pacific owes it a duty of defense for claims of inducing *862 patent infringement under its ‘advertising injury’ coverage for [1] ‘misappropriation of advertising ideas or style of doing business’ or [2] ‘infringement of title.’ ” (Italics added.) As will become apparent, such a limitation on its scope of coverage argument was necessary to satisfy the requirement that the alleged misconduct for which a defense was sought had an advertising nexus.
The specific provisions of Pacific’s policy here at issue are as follows:
*863 “Coverage B - Personal and Advertising Injury Liability
“1. Insuring Agreement
“a. We will pay those sums that the insured becomes legally obligated to pay as damages because of . . . ‘advertising injury’ to which this coverage part applies. We will have the right and duty to defend any ‘suit’ seeking those damages.
“b. This insurance applies to:
“(1)...............................................
“(2) ‘Advertising injury’ caused by an offense committed in the course of advertising your goods, products, or services; but only if the offense was committed in the ‘coverage territory’ during the policy period.”
Section 5 of the Primary Policy provides in pertinent part:
“1. ‘Advertising Injury’ means injury arising out of one or more of the following offenses:
“(a) Oral or written publication of material that slanders or libels the person or organization or disparages a person’s or organization’s goods, products or services;
“(b) Oral or written publication of material that violates a person’s right of privacy;
“(c) Misappropriation of advertising ideas or style of doing business; or
“(d) Infringement of copyright, title or slogan.” (Italics added.)
Mez filed a first amended complaint on September 2, 1997. That is the pleading that is before us.
The trial court’s detailed order was very clear as to its reasoning process: “Mez contends that Pacific breached its contract by failing to provide it with a defense against Ductmate’s claims of patent infringement and inducement of patent infringement. Mez contends that it is covered under the advertising injury provision of its policy with respect to two enumerated offenses: ‘misappropriation of advertising ideas or style of doing business’ and ‘infringement of title.’ The Court concludes that Mez is not covered. flO Pursuant to
Aetna Casualty & Surety Co.
v.
Superior Court
(1993)
We note that in 1994, Congress amended the Patent Act to include “offers to sell” (e.g., advertising) as conduct which could constitute patent infringement, and this amendment became effective in 1996. (35 U.S.C. § 271(a), see also Historical and Statutory Notes re 1994 Amendments and “Effective Date of 1994 Amendments, 35 U.S.C.A. (1999 supp.) foil. § 271, pp. 89-90).) At least one court has concluded that this amendment “indicates that the insured could have an objectively reasonable expectation that it could be prosecuted for advertising injury in a claim for patent infringement.”
(Everett Associates
v.
Transcontinental Ins. Co.
*866
(N.D.Cal. 1999)
As it seems clear, at least from Mez’s complaint, that the alleged acts of inducement were committed in the course of Mez’s advertising and marketing of its products, we assume, for purposes of our decision, that Mez has satisfied the “in the course of advertising” element required under Pacific’s policy.
As indicated in footnote 1, ante, we have also received and considered the views of a number of amici curiae on these issues.
Prior to the decision in
AIU Ins. Co.
v.
Superior Court, supra,
It seems clear that the direct infringement of a patent, at least prior to the “offers to sell” amendment to the Patent Act (35 U.S.C. § 271(a)), could not result from advertising, and thus the required causal nexus between the insured’s advertising activity and the claimant’s injury could not be established. (See, e.g.,
Gitano Group, Inc.
v.
Kemper Group, supra,
In
Lebas,
we did not reach or consider the question of whether the second definitional element of advertising injury offenses (“infringement of copyright, title or slogan”) was similarly ambiguous.
(Lebas, supra,
Mez also cites us to the decision of the Nebraska Supreme Court
(Union Ins. Co.
v.
Land and Sky, Inc.
(1995)
Mez asks us to give weight to the cases construing the pre-1986 language based on evidence of the
drafting history
of the post-1986 policies which reflect the drafters’ view that the new advertising injury did not change “the scope” of the coverage previously available. Apart from the impression and vagueness of such comment, we decline that invitation for all of the reasons articulated by the court in
ACL Technologies, Inc.
v.
Northbrook Property & Casualty Ins. Co.
(1993)
Mez makes the same arguments here as were expressly considered and rejected by the Owens-Brockway court.
This conclusion is consistent with our Supreme Court’s recent decision in
Palmer
v.
Truck Ins. Exchange
(1999)
A number of other cases have reached the exact same conclusions. (See
Young Dental Mfg. Co.
v.
Q3 Special Products, Inc.
(E.D.Mo. 1995)
Even cases decided
prior
to
Manville Sales Corp.
expressed the same view. (See
Water Technologies Corp.
v.
Calco, Ltd., supra,
The wrongful nature of the act of inducing a patent infringement is expressly and unequivocally established by federal statute. (35 U.S.C. § 271(b).)
Counsel for Mez was also counsel for the insured parties in both the Aetna and Intex Plastics cases.
Unlike the insured in
Downey Venture
v.
LMI Ins. Co., supra,