지적재산권 소유자의 파산과 실시(사용)권자의 보호- 미국과 일본의 입법례를 중심으로 -

Abstract

Technology companies typically own or license essential intellectual property. Through various contracts such as license agreements, cross-license agreements, technology com panies operate their business using valuable patents, copyrights and software. These con tract are generally deemed "executory contracts" in bankruptcy and are often the most valuable assets an e-commerce or dot.com debtor possesses. However, a bankruptcy filing may strip the value of such executory contracts and cripple a company's efforts to recognize. The bursting of the bubble company within the last few years and the landslide of bankruptcy filings by big companies have spot lighted the importance of intellectual property assets in bankruptcy cases, especially the licensee will require assurances that continued use of the intellectual property in that case of licensor's bankruptcy. But bankruptcy can noy be predicted, even by a through analysis of the licensor's financial statutes and since the scope of the protection for intellectual property law is often uncertain, other avenues of protection must be investigated. In 1988, The United States congress amend the federal bankruptcy code for the purpose of intellectual property licensee protection, Congress drafted 11 USC 365(n) to permit a nondebtor licensee to continue using the license notwithstanding its rejection by the debtor/licensor. In 2004, Japanese amend the bankruptcy law following the US model. The writer review the background and effect of such law. The lessons from the US and Japanese legislative history will contribute the future shape of Korea bankruptcy law.