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not be implied from the silence of the non-objecting licensors. The Court denied the motion to assume and assign with respect to all of the licenses.
A patent licensor filed a motion seeking to force the debtor to reject the license on the grounds that the license was not assumable. The Court followed the applicable precedent provided by Catapult in holding that the license could not be assumed.
The Court also addressed the question of whether the licensor was deemed to have consented to assumption, when the license itself contains consents to assignment. The Court held that it was not, because when the consent is built into the contract, the consent required to allow assumption is not consent to the particular transaction contemplated but a consent to "accepting performance from or rendering performance to an entity other than the debtor."
Having held in Hernandez I that the patent license was not assumable, the Court turned its attention to whether that result dictated rejection. The Court held that it did not. Instead, the chapter 11 debtor could decide to neither assume nor reject the license. If the debtor took that middle ground, the license would "ride-through" the bankruptcy unaffected by the bankruptcy case: The license would remain enforceable against both the debtor and the non-debtor party, but the debtor would not receive any of the benefits Section 365 provides.
