UNCITRAL COLLOQIUM ON FINANCING INTELLECTUAL PROPERTY ASSETS. (by: Kiriakoula Hatzikiriakos, McMillan Binch Mendelsohn)

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1 UNCITRAL COLLOQIUM ON FINANCING INTELLECTUAL PROPERTY ASSETS (by: Kiriakula Hatzikiriaks, McMillan Binch Mendelshn) The purpse f this paper is t highlight sme issues and recmmendatins t be cnsidered during the discussins at the UNCITRAL Wrking Grup VI Cllquium n Financing f Intellectual Prperty t be held in January 2007 in Vienna. This paper fllws the structure f UNCITRAL Wrking Grup VI s Legislative Guide n Secured Transactins ( Guide ). The first part deals with issues invlving the creatin and perfectin f security interests in intellectual prperty ( IP ), the secnd part, with pririty issues and the third, with enfrcement matters. I. Creatin and Perfectin f Security Interests in IP - Applicability f IP Laws t Security Interests in IP: it is imprtant t determine whether a security interest wuld trigger the applicatin f IP law prvisins relating t the transfer f IP rights (i.e. des the term assignment f an IP right include a security interest?). - Types f IP rights that may be used as cllateral: sftware: given that in many cases IP may be integrated in tangible prperty, it shuld be clear whether the security interest in the tangible prperty wuld extend t the IP rights (Article 9-102(44) f the Unifrm Cmmercial Cde (UCC) defines sftware embedded structurally in gds as a gd ); licenses: - Title f IP rights: in sme jurisdictins, it is nt clear whether licenses frm prperty that can be cmmercialized and granted as cllateral t secure lans; fr example, certain licenses riginating frm gvernmental bdies r licenses f a persnal nature may nt be secured; mst licenses cntain restrictins n assignability and security ( antiassignment clauses ); the Guide shuld deal with the effectiveness f the assignment r security interest grant despite the anti-assignment clause and the rights f the parties invlved (i.e. rights f assignr vis-à-vis assignee; rights f accunt debtr vis-à-vis assignr). in the security interest s creatin, the wnership principles fund in intellectual prperty laws must be cnsidered because the secured party cannt have greater

2 - 2 - rights than the debtr-ip wner (fr example, the rules n emplyer-emplyee wnership f inventins, rules n jint wnership f wrks which can lead t IP rights being wned by different parties in different cuntries); the IP prcedural requirements invlved in evidencing wnership f an IP right (i.e. applicatin) shuld be cnsidered in assessing at which stage a security interest can effectively be created: can a security interest be created in an IP applicatin (i.e. cpyright applicatin?). - Evlving nature f IP rights: it shuld be recgnized that IP rights are nt static, they evlve; fr example, determine t what extent a security agreement s after-acquired prperty clause wuld encmpass develpments made n sftware (prtected by patent and cpyright laws), befre r after bankruptcy? IP laws are Asset specific and therefre require that (i) the IP assigned/secured cmplies with specific rules (i.e. registratin number f cpyrighted subjectmatter); (ii) multiple filings be made t secure an evlving IP right, making the perfectin prcess cstly and burdensme vs. Secured Financing laws, which are Debtr specific and ne filing cvering the debtr s after-acquired prperty wuld include an evlving IP right; any centralized system fr recrding r registering security interests shuld deal with this situatin, which if nt dealt with may create an impediment t intellectual prperty financing transactins; clarificatin is required as t whether licensees take the license free f a previusly created and perfected security interest in the license (Article f the UCC prvides that nn-exclusive licensees take free f a security interest their immediate licensr created). - Structure f security instrument: the type f instrument used t secure IP rights may vary frm ne jurisdictin t anther; this situatin may affect the secured creditr s right and respnsibilities. Fr example, where the security agreement takes the frm f a cllateral assignment (where the debtr assigns its IP rights t the creditr, transferring title t the prperty), the creditr will have t cmply with the IP recrdatin/registratin requirements (which prvide fr filings t be made in respect f ne right at a time, creating the need fr multiple filings where the IP evlves, as discussed in the previus sectin), the creditr as hlder f the IP right will have t maintain and explit the right (i.e. maintain a trademark s distinctiveness and participate in infringement prceedings). Nte that under civil law (at least in the Canadian prvince f Québec), cllateral assignments are nt valid. - Perfecting against unregistered IP rights:

3 - 3 - the pssibility f registering a security interest against an unregistered IP right may vary frm ne jurisdictin t anther and frm ne IP law t anther (i.e. assignments f patent applicatins are allwed bth in Canada and in the U.S.; in Canada, a security interest in an unregistered cpyright is pssible). - Effectiveness f security interests against third parties: any centralized registry system must cnsider the pssible applicatin f tw distinct filing regimes fr IP security interests (where the transfer prvisins f IP laws wuld include a security interest): IP registries and Secured Financing registries. Furthermre, cnsidering the pssibility that ne asset may invlve multiple IP rights (i.e. sftware) and that such rights may have been registered in multiple jurisdictins, the registry shuld ensure that security interests in IP rights be filed in a cst-efficient manner and that a third party searching the registry may be able t view whether the IP rights are encumbered. II. Pririty Issues In establishing the secured creditr s pririty in enfrcement prceedings, the fllwing issues shuld be cnsidered: - Applicability f tw r mre sets f pririty rules: where the IP security interest was registered under secured financing and IP laws, which pririty scheme d we lk at t reslve a pririty dispute? pririty dispute rules need t cnsider that intellectual prperty laws may nt establish a cmplete framewrk fr reslving disputes between cmpeting interests and, in such cases, refer t secured financing laws fr the reslutin f the dispute. pririty rules shuld address the reslutin f certain disputes, where secured financing laws fail t d s, fr example: pririty disputes between security interests in the same IP right, but where ne creditr registers under IP laws and the ther, under secured financing laws; pririty disputes between security interests in after-acquired prperty, where a first creditr registers its security interest cvering after-acquired prperty under secured financing law, but the secnd creditr registers its security in the after-acquired IP rights under IP law, after such rights are actually registered at the relevant IP ffice; pririty disputes between the secured creditr and third parties: cnsider that secured financing laws may nt prvide pririty rules reslving disputes between (i) a secured creditr and a subsequent

4 - 4 - purchaser f the debtr s IP wh registers its title under IP laws; (ii) a secured creditr and a subsequent licensee wh registers its license at the relevant IP ffice. - The freging issues assume that the IP right is wned by ne debtr and is registered under the IP laws f ne jurisdictin - t further cmplicate matters, the IP right secured may have multiple wners lcated in different jurisdictins, and thus be registered in multiple jurisdictins. This reality must be cnsidered when crafting reslutin f pririty rules. III. Enfrcement The remedies prvided t the secured creditr when enfrcing its rights upn the debtr s default r in the debtr s bankruptcy shuld cnsider the particularities f intellectual prperty assets, as fllws: - Adapting secured financing enfrcement remedies t intellectual prperty assets: secured financing regimes need t prvide certain remedies fr IP assets and give sme flexibility t the secured creditr t act quickly, due t the rapidity with which the value f IP can depreciate, especially in liquidatin: ntice t debtr and ther creditrs f intentin t sell the cllateral: secured financing regimes may prvide fr circumstances where the ntice is nt required (i.e. where the cllateral is perishable r where the secured party believes that the cllateral s value will rapidly decline); including an exceptin fr IP cllateral shuld be cnsidered. seizing f IP rights: the right t take pssessin f IP rights shuld be clarified: des the seizing f any tangible materials supprting the IP include the IP rights? - Each remedy prvided under secured financing law must be flexible enugh in rder t accmmdate the specific nature f IP rights: Freclsure (acceptance f cllateral in satisfactin f bligatin): cnsidering the imprtance f license agreement revenues generated frm IP, perhaps it wuld be useful t address sme f the issues relating t the rights f licensees vs. rights f secured creditrs, i.e. terminating license agreement granted by the debtr after the security interest was created (as mentined previusly, Article f the UCC des nt extend the security interest t nn-exclusive licenses granted in the rdinary curse f business, s creditrs cannt terminate such licenses and such licenses survive the secured party s freclsure against the licensr). Taking Pssessin f the Cllateral (usually ending with a sale f the cllateral):

5 - 5 - cnsider whether the cncept f cntrl, rather than pssessin wuld be mre apprpriate fr IP rights; utline the scpe f the secured party s bligatins during the perid f pssessin; fr example, establish the parameters f the creditr s reasnable care duty as it wuld relate t IP rights; t ensure that the IP rights are transferred t the purchaser and that the purchaser btains clean title t thse rights, cnsider giving the secured party the right t give clean title t the purchaser (i.e. creditr shuld be able t execute all assignments relating t the IP rights). Sale f Cllateral: cnsider including licensing as a means f dispsing IP rights; clarify what cmmercially reasnably cnduct (which is the general guiding principle fr sales) means in the case f IP rights; prvide sme guidelines t the secured creditr r allw creditr t btain judicial apprval f its sale prcess. - Cnsider the fllwing issues that may arise in a bankruptcy cntext: scpe f the purchaser s rights t use the IP: des the purchase have a right t access materials kept under escrw? treatment f secured after-acquired IP rights (cming int existence after the bankruptcy/rerganizatin), their qualificatin under bankruptcy laws (i.e. prceeds f pre-bankruptcy rights?) and the pssible impact n the secured party s rights; pssible applicatin f preferential treatment/fraudulent transfer/settlement prvisins t a secured party s security interest: in evlving IP rights: secured creditr perfects its security interest in debtr s IP rights utside the preferential perid prvided under bankruptcy laws, but files its security interest in a new IP right f the debtr at the relevant IP registry within the preference perid prvided by bankruptcy laws: can the filing at the IP registry be cnsidered an avidable preference? in license agreements cntaining, fr example, prvisins granting rights in the ther party s imprvements, withut any payment ver and abve the ryalties prvided fr the license. pssible applicatin f bankruptcy prvisins rendering the asset sale free and clear f any interests (i.e. a nnexclusive license was cnsidered an interest which was extinguished by the bankruptcy sale in the 7 th Circuit American case

6 - 6 - FutureSurce LLC v. Reuters Ltd., 312 F3d 281 (7th Cir. 2002)); this principle strips the licensee frm its right t use the IP which in turn may adversely impact the rights f the licensee s secured party ***

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