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Vol 12, Num 3 l October 2015

Technology and Intellectual Property

► In This Issue:

Nortel: The Courts’ Creative Cross-Border Solution

Kenneth David Kraft
Dentons Canada LLP

"The Court is convinced that where, as here, operating entities in an integrated, multi-national enterprise developed assets in common, there is nothing in the law or facts giving any of those entities certain and calculable claims to the proceeds from the liquidation of those assets in an enterprise-wide insolvency, adopting a pro rata allocation approach, which recognizes inter-company and settlement related claims and cash in hand, yields the most acceptable result.” [Judge Gross, In Re Nortel Networks, p. 64]  

"This is an unprecedented case involving insolvencies of many corporations and bankrupt estates in different jurisdictions. The intangible assets that were sold, being by far the largest type of asset sold, were not separately located in any one jurisdiction or owned separately in different jurisdictions…. Nortel was organized along global product lines … pursuant to a horizontally organized matrix structure and no one entity or region was able to provide the full line of Nortel products and services." [Justice Newbould, Nortel, par. 202.]» Read More

Who Gets Paid? Section 365(n) Royalty Payments Under “Zombie Licenses” After a Sale of IP

Christopher G. Bradley
Taube Summers
Austin, Texas

In today’s corporate bankruptcy world, a debtor’s most important and valuable assets often come in the form of intellectual property (IP). Understanding the effect of bankruptcy on IP licenses is crucial not only for debtors, but also for existing licensees and for potential purchasers of IP assets.

Section 365(n) of the Bankruptcy Code provides special rules for IP licenses where the debtor is licensor — rules that depart from the familiar bankruptcy treatment of executory contracts. This article gives a brief overview of § 365(n), then provides a short analysis of a difficult but important question: When a licensee of a debtor’s IP opts to retain its rights under § 365(n), who receives the stream of licensing payments in the event that the IP is sold: the buyer of the IP, or the debtor?  » Read More

The Impact of Crumbs on Trademark Licenses in Bankruptcy

Beverly A. Berneman
Golan & Christie LLP

This article addresses how the decision in In re Crumbs Bake Shop Inc. continues the evolution of trademark licensing in bankruptcy and contributes to an understanding of the fate of Intellectual Property (IP) during a § 363 asset sale.

In bankruptcy, IP assets can be hypothecated in ways that tangible assets cannot. Likewise, IP can be licensed, in whole or in part, exclusively and nonexclusively, worldwide or by territory, with or without license fees or royalties. Thus, when dealing with IP assets in a bankruptcy, all facets of the IP should be taken into account. » Read More

Committee Activities at Winter Leadership Conference

The Technology & Intellectual Property and Financial Advisors & Investment Banking committees will be joining forces to present the session titled You Are Selling My What? Valuation and Sale of Intellectual Property and Customer Information by a Distressed Company, on Friday from 11:00 am – 12:45 pm. The session’s crew of speakers includes Seth Van Aalten (Cooley LLP; New York), J. Scott Victor (SSG Capital Advisors, LLC; Conshohocken, PA), and Hon. Brenda Moody Whinery (U.S. Bankruptcy Court for the District of Arizona, Tucson Division).

Also join Hon. Bruce A. Harwood (U.S. Bankruptcy Court D.N.H.; Manchester) and ABI’s Chief Information Officer, Karim Guirguis, as they discuss ways to maximize the value of your tablet for your practice and the latest apps that are being used by other bankruptcy professionals. This session, iPad II: Essential Tools & Tricks for Insolvency Professionals, will be held on Friday, December 4th, from 2:00 – 3:45 pm.

Visit our snazzy new website for more information and to register -

7th Annual Mid-Level Professional Developement Program 10/28/15


Delaware Views from the Bench Nov. 23, 2015

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