Morten Smedal Nadheim
Intellectual Property Law
2015-2017 The Norwegian Board of Appeal for Industrial Property Rights
2017-2018 The Norwegian Parliamentary Intelligence Oversight Committee (EOS Committee)
How to secure interests in intellectual property, and how far will the protection reach? An analysis of third parties conflicts
The main question of my project is how and to what extent right holders with whole or partial rights in intellectual properties could secure their rights against third parties, according to Norwegian law. The third party conflict occur when an whole or a partial right is in motion from one party to another, and where at least two parties are claiming to have rights that cannot co-exist in the same property. The project requires an analysis of how the purchaser of an IP-right could secure her acquisitions, how a licensee could secure her rights after the license agreement, and how companies could grant creditors a security interest in the companies IP-rights, against third parties, such as other purchasers, licensees and creditors, hereby the bankruptcy estate.
The legal starting points and methods for solving these conflicts, when the conflicting rights is related to real estate or ordinary property assets, is more or less clarified in Norwegian law, case law and legal theory. The main rule in Norwegian law could be summed up as, first come, first served principle. If this principle ought to be follow unconditional, the insolvency administrators would have to respect all of debtor’s earlier transactions, and the right holder, with the oldest right would always overcome younger colliding rights. This principle is however just the basis, and the main question according to Norwegian law is more often whom who secured his transaction first, and not whom who entered into an agreement first. This means in many cases that subsequent third parties, such as the estate, or other creditors, only will have to respect older rights if the older right holders has provided their rights with legal protection. Such legal protection against third parties will be secured by registration for real estate, or by physical transfer for moveable goods. The legal effect or the legal consequences of such protection will be that third parties with conflicting rights must respect the secured right.
However, IP-rights is not considered as a part of the Norwegian property law, and according to legal theory this is not because the rights are intangible, but since the legislation is assumed to be so special that it will be illusive to seen an intellectual property right as a “real” property right. Consequently, it is uncertainty if the same models and legal basis that is used for solve the third party conflicts related to more ordinary goods, applies for the same types of conflict when the conflict is related to whole or partial rights in intellectual property.
There is a conflict of interest between the IP-right holders, such as the licensor or the licensee and the creditors, such as the mortgagee or the bankruptcy estate. In coherence with the uncertainty regarding the legal outcome of the third party-conflict, I hope to establish legal clarity of how to obtain security for whole or partial rights in intellectual property. My hope is that this clarity will do it more preferable to entering into licenses and easier to exploit IP-rights to get financial founding.