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THE MOTHER of INVENTION by Tom Bakos & Mark Nowotarski

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THE MOTHER of INVENTION by Tom Bakos & Mark Nowotarski On The Risk, vol. 19, n. 3 (2003) THE MOTHER OF INVENTION By Tom Bakos & Mark Nowotarski Executive Summary: It is now possible to patent an improved underwriting or risk selection process. Recent court decisions have stated unambiguously that new, innova- tive methods of doing business, which include improvements or new invention in under- writing processes, can be protected by a U.S. patent. Removing or mitigating the negative effect of the underwriting hurdle on the insurance sales process is a necessity that has long been addressed by many in the underwriting community. Historically, improvements or new invention in the insurance industry have either been freely shared, thus limiting competitive advantage to a head start, or main- tained as trade secrets, thus depriving the industry as a whole of the nature of the im- provements. Now that underwriting improvements can be patented, however, competi- tive advantage can be sustained for the 20 year life of a patent and the industry can bene- fit from the timely disclosure of important new advances. Whether you are an inventor or competing with an inventor, you need to understand the impact that the use of patents in the insurance industry can have on you or your company. Intellectual Property bookkeeping techniques, pricing formulas, or risk An invention is the result of creative thought and selection processes could not be patented. How- ingenuity applied to solving a problem with no ever, with the advent of the general purpose com- obvious or otherwise available solution. An in- puter, the internet, and the consequent develop- vention is intellectual property (IP). If the problem ment of software patents, it became more difficult solved needs a solution, that is, if there is market for the USPTO to determine if an invention was demand for the solution, then the invention is valu- solely a “business method” and not also included able intellectual property. The private ownership in an acceptable category. Beginning in the 1980’s of intellectual property is provided for in the U. S. more and more patents were being applied for and Constitution (Article 1, Section 8, Clause 8). issued that looked only like “business methods”. Similar laws exist in almost every other country in The situation came to a head when Signature Fi- the world. Per the Constitution, Congress has the nancial Group tried to enforce a patent which power to grant inventors the right to exclusive use claimed an improved means for calculating the of their discoveries for a limited period of time. price of a financial instrument. The alleged in- Congress has exercised this authority by creating fringer, State Street Bank, counter sued to have the the United States Patent and Trademark Office (the patent declared invalid. State Street’s argument USPTO or patent office) which grants patents to was that the patent was invalid since calculating a inventors provided that they disclose the exact na- price was a method of doing business. ture of their inventions in sufficient detail so that The district court agreed with State Street. Signa- another person “skilled in the art” can reproduce ture Financial appealed to the Court of Appeals for them. the Federal Circuit. On July 23, 1998, in one of Historically, improved insurance products and pro- the most significant and dramatic decisions ever cesses could not be patented in the U.S. due to the handed down on patents, the Federal Circuit ruled “business method exception”. It was commonly that not only were improved methods of doing believed, and even written into the rules of the pat- business patentable but that they had always been ent office, that applications that solely addressed patentable – at least since the patent laws were re- methods of doing business, such as improved vised in 1952. This decision obliterated the as- sumption everyone had been making, never before Page 1 of 6 On The Risk, vol. 19, n. 3 (2003) tested in court, that business methods were not pat- most other products that are offered for sale in a entable. The U.S. Supreme Court made the deci- general market are sold to the first person with the sion final when they refused to review it (i.e. de- required purchase price, life insurance sold in a nied certiorari) and the business method “land voluntary insurance market, typically must be ap- rush” was on. plied for from a providing company and is issued only if accepted by the provider. In addition, the There has been a huge surge in business method premium is only finally determined by the provid- patents issued since the State Street Bank decision. ing company following its underwriting process. It In 1997 the USPTO created Class 705 to include is no wonder that insurance is not bought. It has to data processing, financial, business practice, man- be sold. A salesman selling in this environment agement, or cost/price determination. Subclass 4 is will encounter well recognized difficulties. reserved for insurance business methods which includes new risk selection and underwriting proc- In a sense, life insurance is not available (or, only esses. Between the State Street Bank decision in available at a very high price) to those who should 1998 and June 2003 over 130 patents on improved want it most. insurance business methods (Class 705/4) have been issued. Only 47 were issued prior to 1998. When individuals are offered an opportunity to Even more telling is the fact that, currently, there purchase any type of product, those who would are over 200 insurance patent applications pending benefit most from it’s purchase are usually the first – most filed within the last two to three years. in line. With respect to insurance products, from Clearly, there is a lot of problem solving going on. the insurance company’s perspective, this is known as anti-selection and is what the underwriting pro- Figure 1: Surge in insurance patents after cess is intended to offset. Underwriting provides State Street Bank Decision for equity in the individual life in- surance market by charging for in- 40 surance in proportion to risk. It is 35 an essential part of any voluntary life insurance market and cannot 30 just be eliminated – the easiest so- State Street Bank lution to the underwriting “prob- 25 Decision lem”. 20 The existing underwriting process (or business method) is designed to 15 gather information about the risk entity applying insurance, evaluate 10 Number of Patents the collected information to prop- erly categorize the applicant with 5 respect to insurability, and establish 0 the premium payment required by the insurer to cover the risk. It 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 seems simple, straight forward, and Year reasonable to those of us familiar with the process. However, to those on the buying side it seems intrusive, inconvenient, The Problem with Underwriting time consuming, and unpredictable in the sense The underwriting or risk selection process has al- that the ultimate underwriting result can be sur- ways been a “problem” affecting the sale of insur- prising. In addition, the fact that the underwriting ance products in a voluntary insurance market. Of process used by each company is “stand alone” in course, we mean “problem” in the kindest possible nature means that insurance shopping among com- way. In place of “problem” you can read “hurdle” panies is multiply intrusive, inconvenient, time or “stumbling block” or “necessary evil”. Whereas consuming, and surprising. Page 2 of 6 On The Risk, vol. 19, n. 3 (2003) Solving the Underwriting Problem patent to protect it. For example, Lincoln National Creative people in the underwriting community filed its patent on an expert underwriting system in have addressed and continue to address ways to 1988 (eventually issued in 1990 as patent # solve these underwriting problems or mitigate their 4,975,840). Their invention recognized relation- impact on the insurance buyer without diminishing ships (based on their proprietary research) between the value of the underwriting process to the insur- different underwriting elements which are used by ance provider. There are solutions focused on each a system they created in order to evaluate the in- of the problem areas associated with underwriting. surability of an applicant. Presumably the greater The intrusiveness of exams has been addressed by accuracy and speed of such a new underwriting the use of non-medical underwriting which uses business method would give an advantage to any underwriting expense savings to offset the addi- company that used it. tional non-med morality. This also partially solves More recently, some of the inventions in the un- the problem of inconvenience. Inconvenience has derwriting area for which patents are being sought been addressed by simplified and guaranteed issue include: programs at the sacrifice of some additional pre- mium cost or an agent compensation reduction. Jet ¨ An Insurability Documentation File issue units have addressed the time issue for the (#20020029158). This centralized file is cre- policy sizes that qualify. The internet has been ated from information provided by service pro- used to illustrate and even issue insurance relying viders and maintained in a secure fashion. This on applicant provided data and quick electronic file can be accessed as the result of a Universal searches of information in readily available exter- Bid Request by multiple insures who can bid on nal data bases (such as prescription drug records). the insurance requested. The bids are binding But, the usefulness of these data bases for the issu- allowing the applicant a speedier way to get ance of insurance has been questioned due to cor- competitive insurance quotes and eliminating ruption, ambiguity, or poorly categorized data.
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