IP Perspective: Actual Test And Footstar Approach Govern DIP's Ability To Assume Patent And Technology License
Mondaq Business Briefing › United States Law Articles in English (2007)
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IP Perspective: Actual Test And Footstar Approach Govern DIP's Ability To Assume Patent And Technology License
Lawmakers' efforts to overhaul the nation's bankruptcy laws two years ago as part of the sweeping reforms implemented by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA") failed to resolve a number of important business bankruptcy issues that have been and continue to be the subject of protracted debate among the bankruptcy and appellate courts. One lingering controversy concerns restrictions in the Bankruptcy Code on the ability of a bankruptcy trustee or chapter 11 debtor-in-possession ("DIP") to assume "executory" contracts that cannot be assigned without consent under applicable non-bankruptcy law.
On one side of the divide stand the circuit courts of appeal for the Third, Fourth, Ninth and Eleventh Circuits. These courts, applying the "hypothetical test," have held that section 365(c)...See the full content of this document
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- U.S. Court of Appeals for the Fourth Circuit - in Re: Sunterra Corporation, Debtor. Rci Technology Corporation, Formerly Known as Resort Computer Corporation, Plaintiff-Appellant, v. Sunterra Corporation, Defendant-Appellee., 361 F.3d 257 (4th Cir. 2004)
- U.S. Court of Appeals for the Ninth Circuit - in Re Catapult Entertainment, Inc., a California Corporation, Aka Storm Systems, Debtor. Stephen Perlman, Appellant, v. Catapult Entertainment, Inc., a California Corporation, Aka Storm Systems, Appellee., 165 F.3d 747 (9th Cir. 1999)
- U.S. Code - Title 11: Bankruptcy - 11 USC 365 - Sec. 365. Executory contracts and unexpired leases
- U.S. Court of Appeals for the Fifth Circuit - in the Matter Of: Mirant Corporation, Debtor. Bonneville Power Administration, Appellant, v. Mirant Corporation, Appellee., 440 F.3d 238 (5th Cir. 2006)
- U.S. Court of Appeals for the Eleventh Circuit - in Re James Cable Partners, L.P., Debtor. the City of Jamestown, Tennessee, Plaintiff-Appellant, v. James Cable Partners, L.P., Defendant-Appellee., 27 F.3d 534 (11th Cir. 1994)
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