Where Bankruptcy Law and Intellectual Property Law Intersect
Lane Powell Counsel to the Firm Priya Sinha Cloutier authored an article in the Fall 2014 issue of Community Bankers of Washington’s Community Banker magazine titled “Where Bankruptcy Law and Intellectual Property Law Intersect.” In the article, Cloutier discussed how property license agreements are affected if one party to the agreement becomes insolvent. She also provided tips to aid parties in drafting license agreements that will pass through the intersection of intellectual property law and bankruptcy law relatively safely.
Bankruptcy Code Section 101(35A) defines trade secrets, patents and patent applications, copyrights and mask works as intellectual property. It is important to note that trademarks do not fall within the definition of intellectual property under Section 101(35A). An executory contract, a bankruptcy law term of art, is a contract whereby the parties’ obligations are so underperformed that the failure of one party to complete performance would be considered a material breach, thus excusing performance by the other party.