The licensee’s position during bankruptcy


Michiel Rijsdijk

A bankruptcy is generally in no-one’s best interest, and worsens everyone’s position.

The creditors will usually not see their claim fully awarded, and naturally the bankrupt is not happy with the situation either. This raises the question of what happens to the position of a licensee.

A licensee (of a patent, for example) is not a creditor in the normal sense. He does not have a claim upon the bankrupt, but his licence is dependent on the bankrupt’s assets (in this case, the patent). This results in an uncertain position for the licensee, at least in the Netherlands. A July 2014 decision of the Dutch Supreme Court may have changed this.

In the Netherlands, before the recent decision, the licensee’s fate was determined by the outcome of the so-called Nebula decision. In the Nebula decision, given on November 3, 2006, the court was presented with a case where the economic owner of a property rented out this property after the legal owner went bankrupt. In Dutch bankruptcy law, the bankruptcy trustee has to abide by existing agreements. But, the Supreme Court considered, this does not mean that a creditor (in whatever form) can exercise his agreement as if no bankruptcy ever occurred.