14. Is your IP exit-ready?

When preparing for an upcoming exit, you need to review many of the topics discussed above.  Make sure you have sought registration for your key IP assets, and look to accelerate the registration process where possible and for the most important rights in the hope that you will have nice shiny registrations to highlight in your investment prospectus.  Make sure you have any ownership loose ends tied up and make sure that official IP registers, most of which will be publicly available, record the owner correctly.  Even if the chain of title is correct in a legal sense, it will be at the least embarrassing if this is not correctly reported in the registers.  Look to finalise any licensing deals, in or out, ahead of the exit, and consider also registering these on the official registers where this is possible (both practically and commercially).

As you will almost certainly be required to report on the company’s IP, e.g. in a listing prospectus, it might be helpful to create a draft at an early stage, adding to it over time.  This will help to maintain a focus on the value being generated by the company’s IP and will help you stay on track to achieve your objectives.  It can also be a resource to evidence the IP that you bring to the table (so-called “background IP”) when entering into joint venture agreements.

Your report will need to cover the relevance of your IP to your products and services. Hopefully, your IP assets will be aligned with your current and likely future products and services.  This should have been an ongoing consideration.  But check again; it is all too easy for them to diverge.  If this has happened, for any applications that remain pending, consider making amendments to alter the scope and cover the products and services.  Consider also filing divisional applications seeking different scopes of protection if this is possible and advantageous.

You will also need to disclose to a potential investor or buyer all the contracts you have entered into to develop and commercialise your IP so, if they were not carefully considered when they were entered into, this will come back to haunt you. Missing, ambiguous or onerous contracts will deter investors and buyers or give them an excuse to drive the price down. When assessing the due diligence requirements of company exit, picture all the hoops you have to jump through to sell your house and multiply that by ten.

For that reason, this mind set of good house-keeping should be adopted from day one so that, if you ever need to sell the company or attract investors, you can hit the ground running and not end up trying to get everything together in a mad panic at the last minute. Even if you never sell the company, such an organised approach will make running it so much easier and more profitable. Also, remember that, although patent and trade mark attorneys and IP lawyers cost money, if you use them properly from day one it will in the long term save you money. Cutting corners at the beginning can in the long run result in a mess which is very expensive (and sometimes impossible) to sort out further down the line.