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Intellectual Property in Bankruptcy: A Collier Monograph

Publisher: Matthew Bender

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ISBN: 9780327181330
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Intellectual Property in Bankruptcy, A Collier Monograph examines how IP rights are affected when they have been assigned, transferred, sold or licensed and one of the parties to the transaction files for bankruptcy. The analysis provides an understanding of the interplay between bankruptcy and intellectual property law and discusses the complex questions that arise in bankruptcy when security and licensed interests in intellectual property and infringement and misappropriation suits and awards relating to intellectual property rights are involved.

The monograph was written by Eric E. Bensen and is reprinted from Chapter 10 of Collier Guide to Chapter 11: Key Topics and Selected Industries.

Specifically, Intellectual Property in Bankruptcy examines the following:

•   The definitional aspects of the four major forms of intellectual property--patents, trade secrets, copyrights and trademarks--with a focus on each as a form of transferable property;
•   Security interests in intellectual property and the interplay between state law methods for perfecting such interests and federal recordation statutes;
•   Intellectual property licensing principles and practices, specifically rejection, assumption and assignment of intellectual property licenses with a focus on the nondebtor licensee's right to maintain a license after rejection and the competing doctrines that have emerged concerning the debtor in possession's right to assume an intellectual property license in view of federal common law prohibiting (in most cases) assignment of such licenses;
•   Intellectual property infringement suits and awards, including the jurisdiction of the bankruptcy court to hear such disputes, the impact of the automatic stay and the dischargeability of such awards.

Table of Contents

Section 1     Scope and Use of Monograph


Section 2     Intellectual Property as Property of the Bankruptcy Estate


[1] Patents

[2] Trade Secrets

[3] Copyrights

[4] Trademarks

[5] Ownership of Employee Advances and Works of Authorship

    [a] Employee Advances

    [b] Works of Authorship


Section 3     Security Interests in Intellectual Property

[1] Perfection of Security Interests in Intellectual Property Under the U.C.C.

[2] Federal Recordation Statutes

[3] Interplay Between the U.C.C. and the Federal Recordation Statutes


Section 4     Intellectual Property Licenses in Bankruptcy

[1] Licensed Interests in Intellectual Property

    [a] Preface: "License" v. "License Agreement"

    [b] The Scope of an Intellectual Property License

    [c] Common Provisions of Intellectual Property License Agreements

[2] Rejection, Affirmation and Assignment of Intellectual Property License Agreements by the Debtor in Possession

    [a] Intellectual Property License Agreements as Executory Contracts

    [b] Rejection of Intellectual Property License Agreements

    [c] Assumption & Assignment of Intellectual Property License Agreements

    [d] "Ipso Facto" Clauses


Section 5     Infringement Claims & Bankruptcy

[1] Remedies for Infringement and Misappropriation Generally

    [a] Monetary Recovery

    [b] Enhanced Damages and Attorney's Fees for Willfulness

    [c] Equitable Relief

    [d] Standing to Sue for Infringement or Misappropriation

[2] Jurisdiction

    [a] Proper Forums for Intellectual Property Claims

    [b] Jurisdiction of the Bankruptcy Court

    [c] Appeals

[3] Impact of the Automatic Stay

[4] Dischargeability of Damages Awards for Infringement and Misappropriation


Section 6     Disposition of the Debtor's Intellectual Property