WHEN WORLDS COLLIDE: Intellectual Property and Arbitration Rights in Bankruptcy Cases
Hanessian, Grant, Stoker, Michael A., Samet, Joseph, Dispute Resolution Journal
The interplay between arbitration and bankruptcy law when an intellectual property licensee has a dispute with a licensor that has files or is about to file a bankruptcy petition.
The decline of some technology businesses, and the widespread use of arbitration clauses in technology license agreements-particularly between parties in different countries-has required many licensees of "intellectual property"1 to focus on whether they retain their license and arbitration rights if a licensor files for bankruptcy relief in the United States. This article examines the interplay between arbitration and bankruptcy law with respect to certain intellectual propepty-rights, and explores options available to a licensee engaged in an arbitrable dispute with a licensor that is, or may soon be, insolvent.
Arbitration and Bankruptcy
Many intellectual property agreements contain arbitration clauses. Particularly in international transactions, arbitration is widely viewed as a more efficient and equitable process than litigation in many national courts. A bankruptcy filing in the United States automatically stays substantially all actions, including pending arbitration proceedings, against the debtor. Creditors may not continue to pursue such actions unless a bankruptcy court terminates or modifies the automatic stay.
Pursuant to § 362(d)(1) of the Bankruptcy Code, an automatic stay may be terminated or modified "for cause." As part of the "cause," the moving party needs to demonstrate the existence of a valid arbitration agreement.2 The burden then shifts to the debtor to demonstrate that the purpose of the Bankruptcy Code would be significantly impaired or violated by enforcing the arbitration clause at that time.3 If the showing of cause has not been adequately rebutted, bankruptcy courts are likely to enforce the strong federal policy favoring enforcement of arbitration agreements.
This policy is rooted in the Federal Arbitration Act (FAA), which provides that arbitration agreements are "valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract."4 The U.S. Supreme Court has stated in Shearson/American Express v. McMahon that the FAA establishes a federal policy favoring arbitration, which requires courts to rigorously enforce agreements to arbitrate.5
Federal courts have repeatedly emphasized the preeminence of arbitration as a national policy and limited the discretion of bankruptcy courts to withhold recourse to arbitration.6 Indeed, this policy is so strong that there is case law holding that bankruptcy courts have no discretion to decline to enforce an arbitration agreement in a "noncore" adversary proceeding.7 However, for the most part, the law requires bankruptcy courts to carefully determine whether any underlying purpose of the Bankruptcy Code would be adversely affected by enforcing an arbitration clause, and then enforce the clause unless the objectives of the Code would be seriously jeopardized.8
Since the claims in arbitration are based on agreements to arbitrate entered into before a bankruptcy petition has been filed, and not on any right created by federal bankruptcy law, arbitration may be the most efficient forum in which to resolve them. For this reason, debtors often cannot demonstrate that the purposes of the Bankruptcy Code would be violated by enforcing an arbitration agreement. Thus, bankruptcy courts would be correct in terminating or modifying an automatic stay to permit a pending arbitration to continue. The same would be true even with respect to a "core" proceeding,9 since the proper inquiry for a bankruptcy court would be to determine whether enforcing an arbitration clause would so significantly violate the Code that Congress would not have intended the FAA to override it.10
The Intellectual Property Bankruptcy Act
Recognizing that the licensing of technology plays a substantial role in the process of technological development and innovation in the United States, Congress passed the Intellectual Property Bankruptcy Protection Act of 1988 (IPBPA), which added § 365(n) to the Bankruptcy Code. The purpose of this addition was to protect the rights of intellectual property licensees when the licensor files a bankruptcy petition.11 The enactment of § 365(n) was specifically intended to overrule the result in Lubrizol Enterprises v. Richmond Metal Finishers.12
Generally, § 365 of the Bankruptcy Code governs the trustee, or debtor-in-possession's, treatment of executory contracts in bankruptcy.13 Subsection (a) allows the trustee to evaluate executory contracts of the debtor and assume the ones that would be beneficial and reject the ones that would be detrimental to the estate.14
However, not all executory contracts are treated identically under the Bankruptcy Code, and such is the case with intellectual property licenses. Generally, both exclusive and non-exclusive intellectual property licenses are treated as executory contracts. When a debtor rejects an executory contract in which it is the licensor of intellectual property, § 365(n) allows the licensee to elect pursuant to § 365(a) either to treat the license as terminated or to assume the license, subject to certain limitations. Prior to the enactment of § 365(n), a licensee could lose its rights in the intellectual property if the licensor filed a bankruptcy petition and subsequently rejected the license as an executory contract.
Under § 365(n), prior to any election on the part of a debtor/licensor to assume or reject the license agreement, the licensee can specifically request in writing that either (1) the debtor provide the licensee with the licensed intellectual property to the extent permitted by applicable non-bankruptcy law, or (2) perform under the license agreement and refrain from interfering with the licensee's rights under the contract.15
If the debtor/licensor assumes the license agreement, it must assume the whole agreement; it cannot cherry-pick the portions it deems beneficial and reject the others.16 If the debtor then defaults, it must cure all defaults or provide adequate assurance that they will be cured.17 The debtor must also compensate the licensee for actual pecuniary loss arising from the default18 and provide adequate assurance of future performance.19 If the debtor assumes the license agreement but later rejects it, any subsequent liability will generally become an administrative expense under the Bankruptcy Coder.20
If the debtor/licensor rejects the license agreement, under § 365(n) the licensee is entitled to cither terminate its rights in that agreement or retain those rights (subject to certain limitations).21 If the licensee elects to terminate its rights, it may assert a claim for breach of contract damages as an unsecured, pre-petition creditor, except to the extent of unpaid post-petition obligations, which would be treated as an administrative expense claim.
If the licensee elects to retain its rights in the license agreement, it may continue to do so for the duration of the license, including extensions "as of right under applicable non-bankruptcy law."22 However, the licensee may not seek specific performance of any other obligations of the debtor/licensor that are not explicitly provided by the Bankruptcy Code. For instance, if a software license agreement required the licensor to periodically revise the licensed software, the licensee may not seek specific performance requiring the debtor make such revisions .
Moreover, under § 365(n), on written request of the licensee, the debtor is obligated to provide the licensee with the intellectual property. Then, for the term of the license and any potential extensions, the licensee has the right to use the intellectual property "in the state that it existed on the day of the bankruptcy filing."23 The licensee would then be obligated to make all royalty payments due under the contract24 and would be deemed to waive any right of setoff.25 Additionally, the licensee would be deemed to have waived any right to an administrative claim that might otherwise flow from the debtor's failure to perform obligations under the license agreement.26
Case Law: In re Qual Systems Corp.
There have been no reported decisions addressing the application of § 365(n) where the licensor of intellectual property files a bankruptcy petition while the parties are engaged in an arbitration to resolve certain rights related to the parties' intellectual property licenses. One unreportcd decision is In re Quad Systems Corp.27
In this case, Chief Judge Bruce Fox of the Bankruptcy Court for the Eastern District of Pennsylvania granted a motion filed by Samsung Tcchwin Corp.28 to lift an automatic bankruptcy stay in order to permit a pending arbitration with the debtor (Quad Systems Corp.) to continue. In 1997, Samsung and Quad had entered into a joint development and sales agreement to develop a new chip assembler machine, given the model name "QSA-60." On the same day, the parties entered into a software license agreement whereby Quad agreed to license certain software to Samsung, which was be incorporated into the QSA-60. A dispute arose between the parties and in April 2000 Samsung initiated arbitration proceedings against Quad. It alleged that Quad abandoned the project before its completion, failed to furnish Samsung with technical assistance, failed to complete required performance tests and wrongfully entered into an agreement with a competitor to develop a competing machine. Samsung sought lost profits in excess of $25 million and specific performance, including an interim award of an irrevocable, non-transferable, non-exclusive, perpetual, paid-up license in the software.
On Dec. 13, 2000, after 11 days of evidentiary hearings and closing arguments from both parties, the arbitrator stated preliminarily that "Quad had improperly abandoned [the joint development project]." Then the arbitrator asked the parties to submit memoranda of law on Samsung's request for interim relief and the effect of a possible Quad bankruptcy on the arbitrator's decision. Five days later, before such submissions were due, Quad filed a Chapter 11 bankruptcy petition, thereby triggering the automatic stay provisions of the Bankruptcy Code. Shortly thereafter, Samsung filed a motion seeking to lift the stay so that the arbitration could continue.
After several hearings, Judge Fox granted the requested relief and lifted the automatic stay, but he placed certain restrictions on the arbitrator's determination of Samsung's rights under the software license. In reaching this decision, Judge Fox found that it was "appropriate" to allow the arbitration to continue "unless to do so would conflict with certain rights or policies established by federal bankruptcy law." He stated he would not deny relief because of "an inherent conflict with federal bankruptcy law or the jurisdictional classification of the claims [of the] creditor." But he found that Samsung-showed some cause for relief from the automatic stay because its "pre-bankruptcy claim needed to be fixed or liquidated" in order for the Chapter 11 case to be appropriately administered. Moreover, the issues involved in determining those claims required an interpretation of contracts in the information technology field (i.e., not bankruptcy law), and Quad had spent a substantial amount of money litigating these very issues. Accordingly, Judge Fox found that it made "eminent sense for the arbitrator, who had heard weeks of testimony and had a background in evaluating these types of disputes," to fix Samsung's claim and Quad's counterclaim.
Quad and the Creditors' Committee, however, asked the court to limit the arbitrator's role to fixing the amount of Samsung's claim. They argued that allowing the arbitrator to do more would conflict with § 365(n) of the Bankruptcy Code, which calls for software licensing disputes involving the debtor to be adjudicated in the bankruptcy court. In the meantime, Samsung requested that the arbitrator also determine its software licensing rights, since, as noted above, it had requested an arbitration award of an irrevocable, non-transferable, non-exclusive, perpetual, paid-up license in the software.
After a review of § 365(n) and its purposes, Judge Fox decided that Samsung should be granted relief from the automatic stay so that the arbitrator could fix the amount of its pre-petition claims. He also ruled that Samsung could request the arbitrator to liquidate its claim under two scenarios: What would be due Samsung if Quad were to reject the license agreement and Samsung were to elect to terminate its rights as licensee under § 36$(n); and what would be due if Quad were to reject the license agreement and Samsung were to elect to retain its rights as licensee under that provision. Judge Fox also concluded that Samsung could ask the arbitrator to determine the amount of royalties it would owe to Quad under § 365(n) if it elected to retain its license rights to Quad's software.
Because Quad was likely to reject the license agreements, Judge Fox also found that Samsung could ask the arbitrator to determine the scope of its license rights in Quad's software as of the date of Quad's Chapter 11 petition. However, Judge Fox ruled that these rights could not be increased to mitigate Samsung's damages claim because that could adversely affect the value of the debtor's estate.
Later in the Chapter 11 case, the parties reached a settlement agreement that was approved by the bankruptcy court. Samsung became the largest administrative and unsecured creditor in the case.
Impact of § 365 on Arbitration Rights
In determining whether an automatic stay should be modified to allow an arbitration concerning intellectual property rights to continue, the bankruptcy court may consider the impact the arbitration will have on the debtor's rights under § 365(n): for example, how the arbitration would affect the value of the debtor/licensor's estate.
In some instances the licensee will prefer to have the dispute resolved in arbitration, while the debtor/licensor may argue that the bankruptcy court should determine the rights of parties under the license agreement. Arbitration may be desired because of its relative efficiency and finality, although some may argue that bankruptcy courts resolve matters expeditiously too. Unlike a judicial proceeding, however, review of arbitration awards is very limited in order to settle disputes efficiently.29 Additionally, it is well recognized that arbitrators have wide latitude in deciding cases and that an "arbitrator's award need not correspond to those benefits the injured party would have received had the contract been fully performed."30
The debtor/licensor or some of its other creditors may believe that a better result would be obtained in the Bankruptcy court. But unlike bankruptcy proceedings, arbitration is usually a two-party process. The creditors, particularly the creditors' committee, may argue that, as a party in interest, they have a right to participate in any dispute over a license agreement between the debtor and the licensee.
Depending on the scope of the arbitration clause, the debtor and/or other creditors may argue that the determination of the parties' licensing rights under the license agreement is outside the scope of the arbitration clause. If the intellectual property license is separate from the agreement containing the arbitration clause, the clause should explicitly cover the license, so that there can be no argument that the arbitrator does not have the authority to define the rights of the parties under the license. However, if the parties to the license agreement specifically agreed that the arbitrator has the authority to decide issues of "arbitrability," i.e., questions about the matters the parties agreed to submit to arbitration, it is well established that the court should give considerable leeway to the arbitrator and allow him or her to decide whether the scope of the arbitration clause includes determinations affecting the license agreement.31
Arbitrators generally have a great deal of flexibility concerning the remedy. This is exemplified in Advanced Micro Devices v. Intel Corp.32 In this case, the arbitrator found that Intel extensively breached its obligations under a technology transfer agreement by failing to act in good faith and deal fairly with the licensee, citing his finding that Intel misled AMD into believing that Intel would license to AMD the right to make and sell Intel's 80386 microprocessor, when Intel actually had no intention of doing so.33 As a part of the remedy, the arbitrator awarded AMD "a permanent, royalty-free, non-exclusive, non-transferable, worldwide right" to any Intel intellectual property embodied in the Am386, the microprocessor AMD reverse engineered from Intel's 80386, in addition to a two-year extension to certain other Intel intellectual property. In affirming the arbitrator's award, the Supreme Court of California noted:
The choice of remedy ... may at times call on any decision maker's flexibility, creativity and sense of fairness. In private arbitrations, the parties have bargained for the relatively free exercise of those faculties.... Were courts to reevaluate independently the merits of a particular remedy, the parties' contractual expectation of a decision according to the arbitrator's best judgment would be defeated.34
Additionally, the New York Court of Appeals has noted: "'Arbitrators may do justice' and the award may well reflect the spirit rather than the letter of the agreement.... Those who have chosen arbitration as their forum should recognize that arbitration procedures and awards often differ from what may be expected in courts of law."35
Because of the flexibility of arbitration and the finality of the process, debtors and certain creditors may fear that an arbitrator would give a licensee who elects to retain the license under § 365(n) rights that are broader than what is explicitly stated in the agreement.36 As a result, they are likely to argue in bankruptcy court, in opposing a petition to lift an automatic stay, that the judge should interpret the license according to traditional contract law principles, or at the very least, limit the arbitrator's powers from going beyond "applicable non-bankruptcy law."
Accordingly, if an arbitrator fashions an award that does not correspond to the benefits a licensee would have received had the contract been fully performed, the debtor/licensee or its other creditors are likely to challenge the award, arguing that the policy behind § 365(n) has been violated and that the award should not be confirmed.
Drafting Considerations When Licensing IP from an Insolvent Company
An intellectual property license agreement should be negotiated and drafted with § 365(n) of the Bankruptcy Code in mind so that the licensee can take advantage of the protections that this section bestows. The licensee may seek to add language stating that the license covers "intellectual property," as defined by § 101(35A) of the Bankruptcy Code. Although this definition is not all encompassing and does not cover trademarks, it could help the licensee obtain protection under § 365(n) in an otherwise close interpretation.
The licensee should ensure that it will be able to treat the contract as terminated if the debtor/licensor rejects it. Section § 365(n)(1)(A) provides that the licensee could treat the contract as terminated if the debtor's rejection would constitute a breach that would entitle the licensee to treat such contract as terminated by virtue of its own terms or applicable non-bankruptcy law. Thus, the licensee should include provisions in the contract providing that an event of default includes the filing of a petition under the Bankruptcy Code, as well as the licensor's rejection of the contract pursuant to § 365(n). Because damages could be difficult to ascertain, the parties should consider including a liquidated damages clause in the agreement. Such a clause would aid the licensee in determining damages and possibly deter the licensor from rejecting the license agreement. To the extent practical, licensees should consider obtaining non-avoidable security interests to protect their claims and rights, and limit the adverse effects of rejection of the license.
Section 365(n) has a number of purposes. One is to prevent a debtor/licensor of intellectual property from stripping the licensee of its prepetition rights in order to increase the value of the debtor's estate. Another purpose is to permit intellectual property licensees to enjoy many of the benefits of their pre-petition license rights. Section 365(n) primarily protects the licensee, not the debtor, or the estate.
When an intellectual property licensee has commenced an arbitration against the licensor prior to the licensor's filing of a bankruptcy petition, it would be a waste of resources for a bankruptcy court to re-litigate matters already presented in arbitration, especially if the parties have spent large amounts of money and time arbitrating their claims. It would hardly further the interests of judicial efficiency, or the purposes of the Bankruptcy Code, or the Federal Arbitration Act, to allow the re-litigation of license rights already submitted to arbitration solely because a debtor believes that it may result in a significant delay of judgment or a better result for the debtor in the bankruptcy court.
"In determining whether an automatic stay should be modified to allow an arbitration ... to continue, the bankruptcy court may consider the impact the arbitration will have on the debtor's rights under § 365(n)."
"An intellectual property license agreement should be negotiated and drafted with § 365(n) of the Bankruptcy Code in mind so that the licensee can take advantage of the protections that this section bestows."
1 See 11 U.S.C. § 101(35A) (defining intellectual property).
2 Hays & Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 885 F.2d 1149, 1157 (3d Cir. 1989); American Freight Sys. v. Consumer Prods. Assoc., 164 B.R. 341, 345 (D. Kan. 1994).
3 See cases cited supra n. 2. See also 11 U.S.C. § 362(g).
4 9 U.S.C. § 2.
5 482 U.S. 220, 225 (1987) (quoting Muses H. Cone Memorial Hosp. v. Mercury Construction Corp., 460 U.S. 1, 24 (1983)).
6 Crysen/Montenay Energy Co. v. Shell Oil Co., 226 F.3d 160 (2d Cir. 2000); Antol v. Esposto, 100 F.3d 1111 (3d Cir. 1996); Insurance Co. of N. Am. v. NGC Settlement Trust (In re National Gypsum Co.), 118 F.3d 1056 (5th Cir. 1997).
7 Hays & Co., supra n. 2, 885 F.2d at 1161; Crysen/Montenay Energy Co., supra n. 6, 226 F.3d at 166; Kittay v. Landegger, 277 B.R. 181, 202 (Bankr. S.D.N.Y. 2002).
8 Hays & Co., supra n. 2, 885 F.2d at 1161; Porter-Hayden Co. v. First State Mgmt. Group, 304 B.R. 725 (Bankr. D. Md. 2004).
9 A "core" proceeding is one that primarily attects the debtor-creditor relationship, such as the allowance or disallowance of claims against the estate, and counterclaims asserted by the estate against persons filing claims against the estate. See U.S.C. § 157(b)(2)(B), (C).
10 See In re National Gypsum Co., 118 F.3d 1056, 1067 (5th Cir. 1997); In re U.S. Suites Lines, 197 F.3d 631, 640-41 (2d Cir. 1999), cert. denied sub nom, American S.S. Owners Mut. Protection & Indemnity Ass'n v. U.S. Lines, 529 U.S. 1038 (2000); In re After Six, Inc., 167 B.R. 35, 41 (Bankr. E.D. Pa. 1994).
11 S.R. Rep. No. 100-505, at 2, 3 (1988), reprinted in 1988 U.S.C.C.A.N. 3200, 3202. Section 365(n)(1) states, in pertinent part, as follows:
If the trustee rejects an executory contract under which the debtor is a licensor of a right to intellectual property, the licensee under such contract may elect
(B) to retain its rights (including a right to enforce any exclusivity provision of such contract, but excluding any other right under applicable nonbankruptcy law to specific performance of such contract) under such contract and under any agreement supplementary to such contract, to such intellectual property (including any embodiment of such intellectual property to the extent protected by applicable non-bankruptcy law), as such rights existed immediately before the case commenced, for
(i) the duration of such contract; and
(ii) any period for which such contract may be extended by the licensee as of right under applicable non-bankruptcy law.
12 756 F.2d 1043 (4th Cir. 1985). In Lubrizol, Richmond granted Lubrizol a nonexclusive license to use a certain metal coating process technology. Richmond then filed a petition under Chapter 11 and sought to reject the license to facilitate sale of its technology in the bankruptcy case. The 4th Circuit held that the license was an executory contract that could be rejected like any other executory contract under the Code, notwithstanding the obvious adverse consequences for the licensee.
The Lubrizol decision had a chilling effect on licensees of intellectual property because businesses were reluctant to rely on licensed technology knowing that they might lose their license if the licensor filed for bankruptcy. The Lubrizol result threatened to end the system of licensing of technology in the United States that had fostered economic and technological growth by providing a mechanism for inventors to use intellectual property for a "specific application" or geographic market without an outright sale or assignment of the desired technology. S.R. Rep. No. 100-505, supra n. 11, at 3 (1988), reprinted in 1988 U.S.C.C.A.N. 3200, 3202. The 1988 amendment was intended to "correct the perception of some courts that § 365 was ever intended to be a mechanism for stripping innocent licensce[s] of rights central to the operations of their ongoing business...." S.R. REP. NO. 100-505, supra, n. 11, at 4.
13 One highly recognized view of an executory contract is one in which both parties have unperformed obligations, such that a failure to perform by either party would constitute a material breach of the contract.
14 Novon Int'l v. Novamont S.P.A., No. 98-CV-0677E(F), 2000 U.S. Dist. LEXIS $169, 2000 WL 432848, *4 (W.D.N.Y. March 31, 2000). The business judgment of the trustee, or debtor in possession, controls the decision. See Collier on Bankruptcy ¶ 365.03 (Lawrence P. King ed., 15th rev. ed. 2004).
15 See § 365(n)(4).
16 See Collier on Bankruptcy, supra, n. 14, at ¶ 365.03.
17 See § 365(b)(1)(A).
18 See § 365(b)(1)(B).
19 See § 365(b)(1)(C).
20 See Collier on Bankruptcy, supra n. 14, at ¶ 365.09; Nostas Assoc. v. Costich (In re Klein Sleep Prods.), 78 F.3d 18 (2d Cir. 1996).
21 See § 365(n)(1); See Encino Bus. Mgmt. Inc. v. Prize Frize Inc., 32 F.3d 426, 428 (9th Cir. 1994).
22 See § 365(n)(1)(B)(i), (ii).
23 S.R. Rep. No. 100-505, supra, n. 11, at 9.
24 See § 365(n)(2)(B).
25 See § 365(n)(2)(C)(i).
26 See Collier on Bankruptcy, supra n. 14, at ¶ 365.14[d].
27 No. 0035667F (Bankr. E.D. Pa. Mar. 20, 2001). To download the decision, go to the U. S. Bankruptcy Court, Eastern District of Pennsylvania, Web site at www.paeb.uscourts.gov/.
28 The authors represented Samsung Techwin Corp. in the described case.
29 See Alghanim & Sons v. Toys "R" Us., 126 F.3d 15, 23 (2d Cir. 1997).
30 M. Domke, Domke on Commercial Arbitration § 33.06 (G.M. Wilner ed., 1999).
31 First Options of Chicago v. Kaplan 514 U.S. 938, 943 (1995).
32 Advanced Micro Devices v. Intel , 9 Cal. 4th 362, 885 P.2d 994 (Cal. 1994).
33 Id., 9 Cal. 4th at 371, n. 6.
34 Id., 9 Cal. 4th at 374-75.
35 Rochester City School Dist. v. Rochester Teachers Ass'n, 41 N.Y.2d 578 (1977).
36 See § 365(n)(1)(B).
The authors are attorneys at Baker & McKenzte's New York office. Grant Hanessian, a partner, chairs the firm's Litigation Department in New York. He is the co-author of two books, Gulf War Claims Reporter and International Arbitration Checklists.
Joseph Samet, also a partner, co-chairs the firm's North American Financial Restructuring, Creditors' Rights and Bankruptcy Practice Group. In addition, he chairs the Creditors' Rights/Bankruptcy Practice in New York. Mr. Samet is a contributing author for Collier on Bankruptcy and the Collier Bankruptcy Practice Guide. He also co-authors Herzog's Bankruptcy Forms and Practice.
Michael A. Stoker, an associate at the firm, specializes in international arbitration and intellectual property disputes.…
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: WHEN WORLDS COLLIDE: Intellectual Property and Arbitration Rights in Bankruptcy Cases. Contributors: Hanessian, Grant - Author, Stoker, Michael A. - Author, Samet, Joseph - Author. Magazine title: Dispute Resolution Journal. Volume: 59. Issue: 3 Publication date: August-October 2004. Page number: 26+. © American Arbitration Association Nov 2008-Jan 2009. Provided by ProQuest LLC. All Rights Reserved.
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