1. Registration: the proposed creation of a Security Rights Register, which will increase the searching required to check the title to IP rights, will cause significant problems in identifying the parties against whom a search is made. It will also cause problems in that it is unlikely to identify the rights actually covered by the security documentation.
2. Integrity of licence terms: the possibility that a lender to a licensee may be able to obtain greater rights over the licensed IP than the rights licensed to the licensee remains a problem. There is concern that the Guide will overrule the written terms of a licence agreement, particularly in the event of insolvency and regarding termination terms.
3. Ordinary course of business: the concept of granting/taking a licence in the “ordinary course of business” referred to in the Annex is not known under IP law. There is an expectation that a buyer purchasing tangible goods in “ordinary commerce” under an authorised transaction takes the goods’ title free of any prior claims. For IP assets however, there usually is a common understanding that the use of the IP may be subject to some other, pre-existing rights.
For those who want to spot more issues, the Annex is available on the UNCITRAL website.
