*  Of Counsel,Finnegan, Henderson, Farabow, Garrett & Dunner, LLP resident in the firm’s Reston Virginia office. He is past president of the International Technology Law Association (formerly known as the Computer Law Association); Life Fellow, American Bar Foundation; 2001 Burton Award for Legal Achievement; and member or former member of the advisory boards forE-Commerce Law & Strategy, Computer Law Reporter, BNA’s Computer Technology Law, BNA’s Electronic Commerce & Law, The Commercial Law Advisor, Intellectual Property Counselor, Internet Law and Business, and Information Strategy: The Executives Journal. He is listed in Intellectual Asset Management magazine’s “IAM250-The World’s Leading IP Strategists” (2009); The International Who’s Who of Internet and e-Commerce Lawyers (2009); Best Attorneys in America (Information Technology; 2003-2010); Virginia Super Lawyers (Intellectual Property; 2006-2009); Washington, D.C., Super Lawyers (Intellectual Property; 2007-2009); Super Lawyers Corporate Edition of Top Attorneys in Business Services (Intellectual Property; 2009), and many other honorary lists of distinction.

This paper, which was presented by Mr. Westermeier at a conference sponsored by the International Technology Law Association in Brussels, Belgium, is reprinted with the kind permission of the author.

1  In the Lubrizol case the bankruptcy court had approved, under the business judgment rule, the rejection of a non-exclusive license for a debtor licensor’s patented metal coating process.

2   In re: TWA, 261 B.R. 103 (Bankr. D. Del. 2001).

3  “Intellectual Property” is defined in 11 U.S.C. § 101 (35A).

4   See DDB Techs., L.L.C. v. MLB Advanced Media, L.P., 2008 US App. LEXIS 11180 (Fed Cir. Apr. 14, 2008) (discussing licensing of future interests before the future interest occurs).

5  It is noted that this strategy does not run afoul of the rule that a debtor cannot unilaterally contract away its authority to assume or reject an executory contract. See In re: TWA, 261 B.R. 103 (Bankr. D. Del. 2001).

6   See In re Computer Communs., 824 F.2d 725 (9th Cir. 1987).

7  In a technology transfer agreement related to a source code license, it is fairly common to include a consulting services component to familiarize the licensee with the source code. The video tutorial may serve that purpose.

8   Everex Sys. v. Cadtrak Corp. (In re CFLC, Inc.), 89 F.3d 673 (9th Cir. 1996).

9   Id.

10   See Gardner v. Nike, Inc., 279 F.3d 774 (9th Cir. 2002).

11   See In re Golden Books Family Entm’t, 269 B.R. 300 (Bankr. D. Del. 2001).

12   See N.C.P. Mktg. Group v. Blanks (In re N.C.P. Mktg. Group ), 337 B.R. 230 (D. Nev. 2005), aff’d without op., 279 Fed. Appx. 561 (9th Cir. May 23, 2008), cert. denied , N.C.P. Mktg. Group, Inc. v. BG Star Prods., 129 S.Ct. 1577, 173 L. Ed. 2d 1028 (2009).

13   See TSJ, Inc. v. Wang Lab. (In re Wang Lab.), 1996 U.S. Dist. LEXIS 879 (D. Mass. Jan. 4, 1996).

14  http://en.wikipedia.org/wiki/automaticstay (last visited October 9, 2009).

15   Id.

16  “Are ‘Termination On Bankruptcy’ Contract Clauses Enforceable?” (Posted on September 16, 2007). http://bankruptcy.cooley.com/2007/09/articles/business_bankruptcy_issues/are_termination_on_bankruptcy_contract_clauses_enfordeable? (“Bankruptcy Article”).

17   Id .

18  K. Turner, “The Licensing of Intellectual Property in Bankruptcy,” http://www.ipfrontline.com/depts/article.asp?id=6317dept.d=3&page=2.

19  Bankruptcy Article.