Question: My Business Is About to Be Acquired – What Happens to My Intellectual Property?”
Whether your business is being sold or acquired, the destiny and value of your Intellectual Property (IP) would have been agreed with the purchaser (or acquirer) of the business at the initial negotiation and due diligence stage and as a precursor to entering into any sale of business (or acquisition) agreement. The sale of business (or acquisition) agreement would then formally record in writing the IP which is essential to the business and which the parties agree will be transferred from the vendor to the purchaser (or acquirer) upon completion. The sale of business or acquisition agreement would likely be augmented by other documents such as agreements for the transfer of patents and assignment of licenses, as an example.
Of course you could refuse to transfer any or all your IP to the purchaser (or acquirer). However, from a commercial perspective the IP may the most valuable asset of the proposed sale or acquisition. For example if the business name of the business was not also being transferred with the sale of the business, and the name of the business constitutes IP, the purchaser (or acquirer) may suspect that you would use that business name to set up another competing business.
That aside, generally, as a vendor you would normally sell or transfer the following IP with your business to the purchaser/acquirer:
- Trade marks, patents, licenses
- Business name
- Customer lists and databases
- Telephone numbers, websites, domain names and e-mail accounts
- Social media accounts.
- Under a sale of business or acquisition agreement, as a vendor or transferee, you
would be obliged to assist with the relevant IP being transferred to the
purchaser/acquirer.
If you are considering the sale or acquisition of a business which will necessarily involve the transfer of IP then you need to ensure that your interests are properly considered and protected. For that purpose you should contact Brydens Lawyers and have one of our expert in our commercial division assist in providing the legal advisory presentation necessary to achieve the desired outcome.