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The Treatment of Intellectual Property Under Bankruptcy Law
As the worldwide economy expanded over the past decade, intellectual property (“IP”) assets have increased greatly in value and become an ever increasing share of a company's balance sheet. Now, as the economy contracts and many companies are facing bankruptcy, a key question concerns the status of the IP that may have been assigned, transferred, sold or licensed if one of the parties to the transaction declares bankruptcy. The answer may depend on whether the IP in question can be classified as a patent, copyright or trademark and the outcome of this inquiry may be critically important to any company that is in danger of losing its rights to manufacture a licensed product because the licensor declared bankruptcy, as well as to any licensor who may be faced with a totally new competitive landscape because the debtor-licensee sold its rights to the licensor's primary competitor. Accordingly, it is important for attorneys who specialize in bankruptcy law to be able to spot whether a particular type of intellectual property is a patent, copyright or trademark.
Overview of Federal and State Intellectual Property Rights
The United States Constitution authorizes Congress “[t]o promote the progress of Science and useful Arts, by securing for limiting Times to Authors and Inventors the exclusive right to their respective Writing and Discoveries.” U.S. Const. art. I, ' 8, cl. 7. The framers of the Constitution believed that in order to promote the creation and dissemination of knowledge, authors and inventors must be compensated for their efforts. Without being compensated authors and innovators would not willing to devote their time and effort to develop new works if others can simply copy or infringe their works for free. Thus, the framers of the Constitution gave Congress the authority to enact laws to protect patents and copyrights for limited times.
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