In Re Qimonda AG, 462 B.R. 165

Qimonda AG is a German debtor in cross-border insolvency; the foreign representative sought recognition and application of §365 under Chapter 15 in the U.S. court.
Qimonda’s assets include about 10,000 patent assets, with ~4,000 U.S. patents, and its major value lies in the patent portfolio.
Dr. Jaffé, the German insolvency administrator, moved to modify the Supplemental Order to remove or limit §365’s applicability to U.S. patents.
Several licensees (Samsung, Infineon, Micron, Nanya, IBM, Hynix, Intel) objected, asserting §365(n) protections should apply; Elpida initially joined but later settled.
The remand record shows a robust patent ecosystem (cross-licenses, RAND licensing, potential hold-up risk) and the court must balance German-law administration with U.S. public policy favoring innovation.
The court ultimately holds that §365(n) applies to Qimonda’s U.S. patents, balancing interests under §1522 and finding public policy supports protection for licensees.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §365(n) should apply to balance interests of debtor and licensees	Objectors argue balancing requires protecting U.S. licenses from cancellation	Jaffé argues German-law treatment should control without §365(n) constraints	§365(n) applies to U.S. patents to balance interests
Whether German insolvency law’s protections are manifestly contrary to U.S. public policy	Licensees contend German law undercuts U.S. policy promoting invention	Germany’s process is procedurally fair; comity should apply unless public policy is harmed	Public policy not violated; applying §365(n) is not manifestly contrary to U.S. policy
Whether licensees are sufficiently protected if §365(n) does not apply	Objectors fear loss of design freedom and hold-up risks	RAND processes and licensing structures provide adequate protection and alternative income to estate	Licensees would be sufficiently protected under RAND/arbitration framework; to the extent not, §365(n) applies to preserve protection

Lubrizol Enters., Inc. v. Richmond Metal Fin., Inc., 756 F.2d 1043 (4th Cir. 1985) (public policy and patent licenses in bankruptcy context informed by Lubrizol)
In re Tri-Continental Exchange, Ltd., 349 B.R. 627 (Bankr. E.D. Cal. 2006) (section 1522 balancing relief to foreign representative and creditors)
In re Metcalfe & Mansfield Alternative Invs., 421 B.R. 685 (Bankr. S.D.N.Y. 2010) (comity and cross-border issues in foreign proceedings)
In re Ernst & Young, Inc., 383 B.R. 773 (Bankr. D. Col. 2008) (recognition of Canadian receivership and related issues)
In re Ephedra Prods. Liability Litig., 349 B.R. 333 (S.D.N.Y. 2006) (comity and resolution procedures in cross-border matters)
In re Gold & Honey, Ltd., 410 B.R. 357 (Bankr. E.D.N.Y. 2009) (recognition of Israeli receivership and related proceedings)