Jason Kilborn’s paper focuses upon Technology and Regulatory Black Holes: Issues in Protecting IP Rights in Insolvency for Both Licensors and Licensees.  He contends that a ‘more careful consideration of laws that preserve intellectual property license rights in insolvency cases to maximize value not only for the parties involved, but for modern societies who increasingly depend on innovation and entrepreneurship.’  Kilborn focuses upon United States law. He makes the strong argument: ‘Congress can be forgiven for drafting an insolvency law designed for the problems of its day in the late 1970s, but with the explosion in volume, value, and economic importance of IP rights forty years later, when we now speak of an “internet of things” and virtually every business relies on copyrighted software code, patented products or processes, or trademarked goods, the twentieth-century Bankruptcy Code deals at best awkwardly with key twenty-first century problems.’ 

His paper highlights the need for greater inter-disciplinary work between intellectual property scholars and corporations law specialists. Questions about intellectual property arise across the life cycle of companies – through the stages of start-ups to mergers and acquisitions and to insolvency and bankruptcy. There have been a number of issues, which have arisen across a number of fields of technology and innovation (particularly in market cycles of boom and bust).

In the field of the creative industries, there has been concern about the corporatization of copyright law, and some of the problems arising from long copyright terms and orphan works. Insolvency and bankruptcy can create problems in terms of the identification of copyright owners. 

In the area of trade mark law, there can be variable comparative impacts of bankruptcy upon trade marks.  Bankruptcy of famous companies can often lead to competition in respect of the sale for the ownership of well-known and famous trade marks. The Toys R Us bankruptcy has certainly raised that issue and question. Sometimes market crashes can have a big impact upon trademark registrations. The dotcom crash of 2000 led to a number of information technology trade marks lapsing.

In the area of patent law and information technology, there has been worry about the rise of so-called ‘patent trolls’ – patent assertion entities. Some of these entities have hidden behind complex corporate groups. There has been concern that patent trolls have relied upon bankruptcy and insolvency in the face of losses. In the area of patent law and biotechnology, there was a gold rush mentality in the 1990s, and the filing of gene patents. There has been a significant market correction, particularly as the promises made by the biotechnology industry have been slow to come to fruition. I wrote a paper in 2006 entitled, ‘After the Gold Rush.’ In the field of patent law and clean technologies, the Obama administration was concerned that China was buying up intellectual property cheaply during fire-sales of intellectual property assets.

This week myself, Dr Kylie Pappalardo, and MPhil researcher Stephanie Parkin appeared before the Federal inquiry into Indigenous intellectual property and fake art. There has been a problem in prosecuting companies for breaches of Indigenous intellectual property. Some companies have sought the sanctuary of bankruptcy (notably, this happened in the Bulun Bulun case). The ACCC has taken action against companies, which then phoenixed. Some companies have denied that they have authorized copyright infringement (the King case).

Introduction

My paper today will focus upon a case study of TechShop and its bankruptcy – as part of our Australian Research Council Discovery Project on Intellectual Property and 3D printing. This paper will explore the history of TechShop and its role in the Maker Movement; TechShop’s bankruptcy in 2017; and the dispute over trademarks relating to TechShop, with the rise of new makerspaces. It will also consider the larger restructuring of the 3D printing industry – with a wave of mergers, acquisitions, and bankruptcies. This paper deploys the methodology of a corporate case study in order to consider larger questions about intellectual property, 3D printing, and insolvency.