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Opinion Casts Doubt on Licensees' Ability to Protect Licenses
Ever since '365(n) was added to the U.S. Bankruptcy Code in 1988, a party with a license to use intellectual property ' defined to include patents and copyrights but not trademarks ' could rest assured that a bankruptcy filing by the licensor would not divest them of their right to use the property. Section 365(n) expressly provides that the rejection of an intellectual property license allows the licensee to retain its rights under the license, including the right to enforce any exclusivity provision. But a 2003 decision by the Seventh U.S. Circuit Court of Appeals, Precision Industries Inc. v. Qualitech Steel SBQ, LLC, casts serious doubt on the ability of licensees to protect their licenses under '365(n).
Section 365(n) was Congress' response to an earlier decision, Lubrizol Enterprises Inc. v. Richmond Metal Finishers Inc. (In re Richmond Metal Finishers Inc.), decided by the Fourth U.S. Circuit Court of Appeals in 1985. In Lubrizol, the Fourth Circuit allowed a debtor to reject a metal coating technology license as an executory contract that was burdensome to the estate.
The motivation for the debtor's rejection of the license agreement was to 'facilitate sale or licensing of the technology unhindered by restrictive covenants in the ' agreement,' according to the court's opinion in Lubrizol. Congress responded with the Intellectual Property Bankruptcy Protection Act of 1988. Through the enactment of '365(n), Congress intended 'to make clear that the rights of an intellectual-property licensee to use licensed property cannot be unilaterally cut off as a result of the rejection of the license pursuant to '365 in the event of the licensor's bankruptcy.'
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.