此前我们在《从“License-in”转型“License-out”——你的“自主知识产权”成色几何？》中对企业在开展License-out过程中涉及的知识产权侵权问题进行了梳理，并提出了实操建议供企业参考。此外，在技术许可交易中，还有一个此前常被中国企业在技术交易中忽略的问题，即技术许可方破产对技术许可的影响。随着中国技术类企业正逐步从技术引进（“License-in”）转向技术输出（“License-out”），中国企业也时常碰到境外被许可方提出的“破产保护”诉求。我们将在本文中对该问题进行探讨，并对国外常见的应对方案“技术托管”进行较为详细的介绍。

一、许可方破产对技术许可合同的影响

On December 5, 2022, in In re Global Cord Blood Corp., 2022 WL 17478530 (Bankr. S.D.N.Y. Dec. 5, 2022) (“Global Cord”), the U.S. Bankruptcy Court for the Southern District of New York (the “Court”) denied recognition of a proceeding pending in the Grand Court of the Cayman Islands (the “Cayman Proceeding” and the court, the “Cayman Court”) because it was more like a corporate governance and fraud remediation effort than a collective proceeding for the purpose of dealing with reorganization or liquidation, as Chapter 15 of the Bankruptcy Code requires.

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On August 5, 2021, the Eighth Circuit reversed a district court’s decision to dismiss a confirmation order appeal as equitably moot.[1] The doctrine of equitable mootness can require dismissal of an appeal of a bankruptcy court decision – typically, an order confirming a chapter 11 plan – on equitable grounds when third parties have engaged in significant irreversible transactions

On October 5, 2021, the Tenth Circuit joined the Second Circuit in concluding statutory fee increases that applied only to debtors filing for bankruptcy in judicial districts administered by the United States Trustee Program (the “US Trustee” or the “UST Program”) violated the U.S.

As a matter of practice, chapter 11 plans and confirmation orders routinely discharge administrative expense claims, including those that arise after confirmation of a plan but before its effective date. The Court of Appeals for the Third Circuit (the “Third Circuit”) recently affirmed the bankruptcy court’s statutory authority to do so in Ellis v. Westinghouse Electric Co., LLC, 2021 WL 3852612 (3d Cir. Aug. 30, 2021).

On July 26, 2021, the United States District Court for the District of Delaware (the “District Court”) affirmed the Delaware bankruptcy court’s order (the “Confirmation Order”) confirming the chapter 11 liquidation plan (the “Plan”) of Exide Holdings, Inc.

On May 24, 2021, the U.S.

On June 28, 2021, in the chapter 11 cases of Paragon Offshore plc and certain of its affiliates (“Paragon” or the “Debtors”), the United States Bankruptcy Court for the District of Delaware denied the U.S. Trustee’s motion[1] to compel payment of $250,000 in statutory fees assessed against litigation trust distributions.

On June 10, 2021, Bankruptcy Judge Mary Walrath of the District of Delaware confirmed the chapter 11 plan filed by The Hertz Corporation debtors. In the days just prior to confirmation, the debtors filed a revised plan that proposed to pay unimpaired unsecured creditors postpetition interest at the federal judgment rate. However, the plan reserved to those unsecured creditors the right to later assert entitlement to postpetition interest at higher contractual rates, while also reserving to the debtors the right to argue that no postpetition interest is payable at all.