회사 도산에 의한 지적재산권 이전에 관한 소고

A Study on the Transfer of Intellectual Property Rights in Bankruptcy of the Corporation

Intellectual property rights, ie, patent, utility model, copyright including trademark have increasingly become the most valuable assets of the companies. Moreover, the recent explosive growth of the Internet and resultant worldwide access to information have made it ever important to examine and manage intellectual property rights in commerce. However, since free competition is allowed under the capitalist economic system, when one company have financial problems, the impact on the other company to a license can be very serious. Especially a poorly positioned licensee will contain pitfalls when a licensor goes bankruptcy. As a result of the decision in Lubrizol case, U.S. Congress enacted section 365(n) of the U.S. Bankruptcy Code. Section 365(n) provides that if the debtor-licensor rejects an "license agreement" which is decided as an executory contract, the licensee may elect to retain its rights to use the intellectual property as such rights existed immediately before the commencement of the bankruptcy case for the remaining term of the contract. Also, providing lim- itation of the trustee's power, it makes relationship of both parties' right clear. Korea Assembly enacted Consolidated Insolvency Act in Mar. 2005, which the current three insolvency related acts are to be consolidated into one unified code. However, this act doesn't effectively protect licensee when licensor files bankruptcy under this act and trustee(same concept of DIP in U.S) rejects license agree- ment. On the ground that licensee may prefer to use intellectual property continuously instead of getting right to claim damages, it is recommended that licensee be protected when licensor files a bankruptcy without limiting licensor's right.