The Law Applicable to Security Interests in Intellectual Property Rights

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Abstract:

The creation of security interests in IP rights raises important questions from the standpoint of conflict of laws since the needs and the goals of the protecting State and those of secured transactions law diverge. Several initiatives have been undertaken at various levels, such as by Working Group VI of UNCITRAL, ALI and the CLIP Group.

As concerns national IP rights, specific rules concerning the creation of security interests in IP rights and related matters are scarce. A large majority of states still apply the traditional rule of lex loci protectionis, under which the security interest is denied any autonomy from the encumbered asset and each security interest over each IP right is governed by a different law, thus increasing costs and risks for secured creditors.

The situation of European patents, whose registration is centralised, and of EU IP rights is then analysed. In particular, it is assumed that the centralised registration of EU patents reduces the costs and risks related to the possible existence of conflicting rights. As concerns EU IP rights, for which it is not possible to identify a State of protection, the relevant EU regulations provide for a choice-of-law rule that localises the right as an object of property at the seat or domicile of the proprietor. Thus, a single law applies to the proprietary aspects of the security interest and to issues that are not covered by the applicable regulation.
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