The fifth component of the Hoover Project on Commercializing Innovation studies how the possibility of bankruptcy can influence the way business deals are structured, even at the earliest stages of a venture. For example, bankruptcy proceedings do not compromise fundamentally the value of most tangible assets; tangible assets generally retain their value both during and after bankruptcy proceedings. Intellectual property assets are typically most valuable when they carry a credible threat of injunction. But the delay and coordination problems inherent in the bankruptcy system can leave a debtor’s IP rights under-enforced against infringers, even if the debtor-in-possession or trustee-in-bankruptcy has the proper incentive to pursue actively the enforcement of the debtor’s IP rights in bankruptcy. Further, there is some risk that a major transaction over the debtor’s IP could fail to occur in bankruptcy. Consequently, the bankruptcy process itself potentially can eliminate all, or at least a substantial portion, of the value of IP rights. Our project studies techniques for mitigating these risks, such as through the use of special purpose vehicles to hold title to IP assets, as well as for putting these risks to everyone’s collective advantage, such as through private ordering solutions to the so-called anticommons problems.
Note: Having been nominated by President Barack H. Obama, and confirmed by the Senate, to serve as a Commissioner at the U.S. International Trade Commission, F. Scott Kieff swore into and took up his government post on October 18, 2013, after stopping his work for and resigning all of his roles at Stanford University’s Hoover Institution, which included having served as Ray & Louise Knowles Senior Fellow at Hoover; as Director and Member of the Research Team of the Hoover Project on Commercializing Innovation; as Member of the Steering Committee and Research Team of the Hoover Working Group on Intellectual Property, Innovation, and Prosperity; and as Member of the John and Jean De Nault Task Force on Property Rights, Freedom, and Prosperity; and after also taking a leave of absence from his post as Fred C. Stevenson Research Professor at the George Washington University Law School.
Selected works on Bankruptcy:
- IP Transactions: On the Theory & Practice of Commercializing Innovation, 42 Houston Law Review 727 (2005), F. Scott Kieff.
- An Approach to Intellectual Property, Bankruptcy, and Corporate Control, 82 Washington University Law Quarterly 1313 (2004), F. Scott Kieff and Troy A. Paredes.