High-Stakes IP in Bankruptcy: Identifying, Valuing, and Protecting Assets Before They’re Lost

This session explores why intellectual property has become the dominant asset class, representing over 90% of S&P 500 market value. Attendees will learn how IP provides value preservation, revenue generation, and negotiation leverage during insolvency proceedings.

This session examines key statutory provisions including Sections 101(35A), 365(a), 365(n), and 365(c) that govern IP treatment in bankruptcy. Particular attention is given to why trademarks are excluded from the Bankruptcy Code’s IP definition due to quality control obligations.

Participants will review traditional IP categories including patents, copyrights, trademarks, and trade secrets, along with their distinct characteristics. The session also covers emerging IP forms such as NFTs, AI-generated works, database rights, and data assets.

This session covers pre-bankruptcy planning, IP identification challenges, and the three primary valuation methodologies: income, market, and cost approaches. Attendees will understand how valuations differ between Chapter 11 reorganization and Chapter 7 liquidation scenarios.

This session addresses essential license provisions for bankruptcy planning, including survival of rights, anti-assignment clauses, and 365(n) election procedures. The treatment of exclusive versus non-exclusive licenses and trademark-specific considerations will be examined.

A ten-minute intermission allowing participants to refresh before the second half of the program. Use this time to review materials and prepare questions for upcoming sessions.

This session explains how Section 363 sales allow debtors to sell assets free and clear of liens and encumbrances. The Nortel Networks case study demonstrates how competitive bidding can dramatically increase IP asset values from $3.6 billion to over $4.5 billion.

Attendees will learn how 365(n) protects licensees when the licensor files bankruptcy, ensuring continued use of licensed IP. The session contrasts treatment when the debtor is the licensee versus licensor, and addresses the distinct challenges with trademark licenses.

This session examines centralized IP holdco models versus opco ownership structures and their implications in bankruptcy. Participants will learn about fraudulent transfer risks, third-party license impacts, and critical documentation requirements.

The session analyzes how IP license treatment depends on whether the IP qualifies under the Bankruptcy Code and whether the debtor is licensor or licensee. Key considerations for each scenario are summarized to guide strategic decision-making.

This session reviews landmark cases including Mission Product Holdings v. Tempnology, which addressed trademark license treatment at the Supreme Court level. Participants will understand how these precedents resolved circuit inconsistencies and established binding standards.

The final session covers monetization options from outright sales to IP enforcement, ranked by accessibility and difficulty. Attendees will learn the four-step preparation process: asset mapping, technical review, valuation, and strategic packaging for sale.