intellectual property

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I have written a number of times on the blog about the impact of bankruptcy on trademark licenses, in particular what happens to trademark licensees whose licensors file bankruptcy. Trademark licensees face a real risk of losing their license rights in bankruptcy since they have no protection under Section 365(n) of the Bankruptcy Code. However, recent decisions, including…

It’s been a long wait, but we finally have a published decision from a U.S. Court of Appeals answering whether a trademark license is assignable in bankruptcy without the licensor’s consent. On July 26, 2011, the U.S. Court of Appeals for the Seventh Circuit issued an opinion in In re: XMH Corp., written by Circuit Judge Richard…

Trademark licensees have long faced the serious risk of losing all license rights to a trademark if the licensor files bankruptcy and rejects the trademark license as an executory contract. However, a recent decision from the U.S. Court of Appeals for the Third Circuit in the In re: Exide Technologies case may give some trademark licensees…

Section 365(n) And Licensee Rights. I have discussed in the past how Section 365(n) was added to the Bankruptcy Code to protect licensees of intellectual property in the event the licensor files bankruptcy.

  • Under Section 365(n), if the debtor or trustee rejects a license, a licensee can elect to retain its rights to the licensed intellectual

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In a post last year entitled "North Of The Border: Reorganization Under Canada’s Companies’ Creditors Arrangement Act," I discussed the various types of bankruptcy and insolvency proceedings available under Canadian law. Included in the discussion was the Companies’ Creditors Arrangement Act, known as the CCAA, used by many Canadian companies to reorganize. At that…

Many companies rely on in-bound licenses of intellectual property, especially those involving patents or trade secrets, and spend millions of dollars on research, development, and ultimately commercialization of drugs or products incorporating the licensed IP. With so much at stake, licensees frequently ask a critical question: Can our license rights be terminated if the licensor…

It looks like the U.S. Supreme Court, or at least two of the Justices, is interested in deciding whether the "hypothetical test" or the "actual test" should be used in determining whether an intellectual property license can be assumed by a debtor in possession under Section 365(c)(1) of the Bankruptcy Code. That was the clear message from the somewhat…