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Tech Bankruptcy
October 28, 2006
  Is Everex Dead?
First published December 22, 2004

Its been a while since I have posted anything. Sorry about that. Turns out the Westlaw searches I set up to monitor the subject all died a couple of months ago. But I am getting back on track now.

Pretty much everyone who might read this blog knows about the Everex case. Its a 9th Circuit decision that limits a debtor's ability to assign an interest in a patent license due to Federal common law restricting patent license assignability.

Superbrace, Inc. v. Tidwell, 21 Cal. Reporter 3d 404 (Nov. 23, 2004) might just change all that. Relying on a 1957 California Supreme Court decision, the Superbrace decision states that under California state law, patent licenses are assignable, and it's this state law, not the Federal law doctrine espoused by Everex, that controls patent license assignment. The Superbrace decision analyzes Everex at great length and, in the end, disagrees with its results.

Could we have a regime where California state courts hold that patent licenses are assignable under state law and the Federal courts hold they are non-assignable under Federal law? How do you possibly resolve the conflict without taking the matter to the Supreme Court? I don't have the answers.
 
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A blog discussing the impact of technology on bankruptcy law and practice.

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Warren E. Agin is a partner in Swiggart & Agin, LLC, a boutique law firm in Boston, Massachusetts focusing on the needs of technology companies. Mr. Agin heads its bankruptcy department. The author of the book Bankruptcy and Secured Lending in Cyberspace (3rd Ed. West 2005), Mr. Agin also chaired the ABA's E-commerce and Insolvency Subcommittee from 1999 to 2005, co-chaired the Boston Bar Association's Internet and Computer Law Committee (2003-2005), and served on the American Bar Association's Standing Committee on Technology and Information Services (2008-2011). Mr. Agin currently co-chairs the Editorial Board of Business Law Today. A contributing editor to Norton Bankruptcy Law and Practice, 3d, and co-author of its chapter on intellectual property for the past fifteen years, he is author of numerous legal articles and addresses on topics of technology, internet and bankruptcy law.

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