Intellectual Property Management:
IP due diligence
In a knowledge-heavy industry, the utilization of intellectual property is often the core business. The monetization must be preceded by the creation and protection of intellectual property. So the takeover of such a company is driven by due diligence of intellectual property. You have to devote special attention and care to this topic.
In the software industry intellectual property is often the most important asset of a company. Besides employees and intellectual property there often are no other significant assets or means of production. But how is intellectual property generated and leveraged in the software industry?
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Sources of intellectual property rights in the Software Industry
In software companies products are created by own staff and contracted service providers. Own software components, but also third party software components (third party software, open source software, freeware) are used on the basis of usage rights.
In addition, a software company can accumulate intellectual property through acquisitions of companies or by acquiring someone else's intellectual property.
Before you create software, make sure that you own the required intellectual property or that you have rights to use third party intellectual property.
Utilization of intellectual property rights in the Software Industry
The utilization of intellectual property in software companies usually is granting of rights to use intellectual property to customers and granting sublicensing rights to third party resellers.
Comprehensive IP due diligence
So what is important if you acquire a software company regarding intellectual property? In a holistic IP due diligence, the stock of intellectual property rights, relations with all sources and all the relations of exploitation are examined. With the acquisition of a software company the following views on intellectual property are relevant:
Status and review of intellectual property at the target
The current state and future possibilities of utilization of IP
Review of existing intellectual property
Here you examine how intellectual property was created, acquired or licensed in the software company along the following questions:
Has the target sufficiently taken measures that work results of employees and service providers are IP of the target?
Which patents, trademarks, copyrights, title protection, competition law and subsidiary measures exist and have been taken by the target?
Which clauses regarding intellectual property rights are in customer and cooperation agreements to ensure that no intellectual property "is lost"?
Which third party intellectual property was and is used by the target and does the target have the appropriate usage rights?
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For each of its supplier relationships, the software manufacturer must ensure that he
is in possession of intellectual property, which he uses or
Has sufficient rights to use third-party IP.
This applies to results of third party services and OEM/resell software alike. Usage rights of third party intellectual property rights are:
Licenses for foreign patents,
To use their software components from third parties,
Rights to use open source and freeware, which usually in the form of open source and freeware licenses are available and compliance with license conditions must be checked.
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(c) Dr. Karl Popp 2014
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