1 (a). What are the general principles of the treatment of IP license agreements in insolvency proceedings? Is there a difference depending on the type of proceeding (e.g., a court-appointed receivership, a bankruptcy, a restructuring, etc.)?
Intellectual property rights are considered important intangible assets that can be monetized to meet the legitimate expectations of creditors. In principle, all those rights enter the insolvency estate except for moral rights. Thus, IP licenses are also subject to insolvency proceedings.
Under Italian law, there are different types of insolvency proceedings, depending on (i) the purpose they intend to achieve (preservation of the company or liquidation of its assets), (ii) the manner in which they intend to achieve these purposes (by an agreement with creditors or by a procedure imposed on the debtor) and (iii) the size or nature of the business in crisis. One common feature in all of these proceedings is the deprivation of some of the autonomy of the debtor, such as the insolvent's temporary inability to dispose of assets and the temporary appointment of a person in charge of managing the debtor's business. This common feature fully extends its effects to IP license agreements.1 (b). What are the laws governing the treatment of IP license agreements in insolvency proceedings?
The treatment of IP license agreements in insolvency proceedings is not explicitly regulated by Italian law. Therefore, reference is made more generally to the Italian Insolvency Law, mainly consisting of Royal Decree No. 267 dating back to 1942 and significant amendments in recent years, with a combined reading of the Italian Industrial Property Code (Legislative Decree No. 30 of 10 February 2005), the Italian Copyright Law (Law No. 633 of 22 April 1941) and the Italian Civil Code, depending on the intellectual property right involved.