IP issues to consider in asset purchase contracts

The following IP practice note provides comprehensive and up to date legal information covering:

  • IP issues to consider in asset purchase contracts
  • Asset purchase or share purchase?
  • Liabilities
  • Key contracts/licences
  • Key stages in an asset purchase
  • Due diligence
  • Shared IP
  • Warranties, indemnities and disclosure
  • Warranties
  • Indemnities
  • More...

IP issues to consider in asset purchase contracts

This Practice Note focuses on the intellectual property (IP) rights aspects of asset purchase transactions, alongside some more general issues that commonly arise in the context of an asset purchase. This has been approached mainly from the buyer's perspective, but also flags some concerns for the seller where relevant. For a detailed checklist of issues, see: Asset purchase transactions—IP issues—checklist.

This Practice Note raises issues that are pertinent to the purchase of assets in a business that has some valuable IP assets, rather than the acquisition of a technology, software or web-based business (for which IP is at the core of its business, and would require a more comprehensive series of IP-specific enquiries and protections). . For specific guidance on buying a software business, see Practice Note: Buying a software business—key considerations and for further discussion of the issues relevant to the IT aspects of corporate transactions, see Practice Note: Corporate transactions for IT lawyers.

Asset purchase or share purchase?

In many respects the process and issues to consider will be the same no matter whether shares or assets are being acquired. There are some important differences, which are flagged, where relevant, below.

In basic terms, in an asset purchase, particular assets are bought from ‘the company’ itself as owner of those assets. In contrast, a share purchase involves the

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