What IP evidence should a company organise before due diligence by an investor, buyer or potential licensee?

Start with the assets relevant to the transaction

Prepare an inventory of the IP supporting the products, services or technology under review. A potential licensee examining one manufacturing process may need a narrower set of records than a buyer acquiring the whole company.

Give each asset a clear name or reference. Describe what it consists of, where it is used, which legal entity owns it or holds permission to use it, and where the supporting evidence can be found. Include registered rights and applications alongside unregistered work. WIPO’s IP audit guidance provides a useful starting point for identifying assets, their business use and the rights of other parties.

Avoid entries such as “our technology” or “all company know-how” without further identification. For a production process, identify the relevant specifications, operating instructions, test results and versions. See how to identify the exact material under review for a worked example.

Distinguish registered rights from unregistered assets

The evidence needed depends on how the asset is protected. A registration or application gives reviewers an official reference from which to begin. For unregistered assets, the company needs to identify the material under review and assemble the records explaining its development and protection.

One product can involve both. A patented manufacturing process may depend on confidential operating parameters and software that are not fully described in the patent. List those associated assets separately and explain how they fit together, so that examining the patent does not leave important parts of the technology unexamined.

For registered rights, start with the official record

For patents, registered trademarks and registered designs, provide application or registration numbers, the relevant countries, the recorded owner and current status. Include the documents defining the protection, renewal or maintenance records, relevant deadlines and any pending challenges. Distinguish applications from granted or registered rights.

Connect these records to assignments, licences and other agreements affecting ownership or use. Where ownership has changed, keep the transfer documents and evidence of any required recordal. A register entry is a starting point for examining the company’s rights; the underlying agreements and any discrepancies still need review.

For a patent, the central questions concern its claims, legal status, ownership and the rights available for the transaction. The Hong Kong Intellectual Property Department’s due diligence guidance also identifies assessment of claim scope and potential freedom-to-operate obstacles. Timestamped development files are usually peripheral to this review, although they may matter if a specific issue about entitlement or development history arises.

For unregistered assets, identify the material and document its history

For software, unregistered designs and confidential know-how, identify the files, versions or documented information that make up the asset. Preserve source code, drawings, specifications, laboratory notes or operating instructions, together with records of contributors and significant development milestones. Explain which protection the company relies on for each asset, such as copyright, unregistered design rights or trade-secret protection; the requirements differ by right and jurisdiction.

Timestamped records can help reviewers check whether a particular version existed by a particular time and whether the supplied files match the dated record. Link any timestamped milestones or deliveries to the asset in the inventory. Different methods, including blockchain anchoring, can support this evidence; see what a digital timestamp establishes.

Connect the company’s rights to the supporting agreements

For both registered rights and unregistered assets, link the relevant work to founder assignments, employment records, contractor agreements, collaboration agreements, acquisitions and licences, as applicable. Include signed amendments and evidence that any conditions affecting the rights were met.

Identify the company by its legal name. If a founder developed the technology before incorporation, or another company in the group employed the contributors, preserve the documents explaining how the relevant rights reached the company under review.

Ownership and permission to use an asset should be distinguishable in the inventory. WIPO’s guidance for businesses working with investors and buyers emphasises both evidence of ownership and whether key licences can continue following an acquisition.

Show obligations and restrictions affecting the assets

Keep incoming and outgoing licences, customer commitments, research agreements and other arrangements that affect what the company can do with the IP. Identify relevant limits on territory, duration, exclusivity, sublicensing or transfer, and any consent required for the proposed transaction.

For software, include an inventory of third-party components and the applicable licence terms. For jointly developed technology, include the agreements governing each party’s use of the results. Record any security interests, ownership claims or disputes affecting the assets.

The purpose is to let reviewers compare the rights the company holds with the rights the transaction requires. The Hong Kong Intellectual Property Department’s due diligence guidance explains why examining ownership documents and rights already granted is central to that assessment.

Include evidence of confidentiality and business use

For confidential know-how, assemble records showing how the information was identified and handled: confidentiality agreements, access permissions, disclosure records and relevant procedures. Connect those records to the particular information concerned.

Keep evidence showing where the asset is used in the business, such as product releases, manufacturing records, customer agreements or licensing activity. Explain the connection: a customer contract may relate to a product containing several assets, rather than demonstrate the value of one particular invention or design.

Separate the inventory and introductory descriptions from sensitive technical material, and organise access around the agreed scope of review. See how to allow examination while limiting disclosure.

Preserve a history that reviewers can check

Keep original files and signed documents alongside the index used for due diligence. Record where each item came from, which asset and version it concerns, and whether it was created at the time of the events or reconstructed later.

For timestamped records, preserve the exact matching files, certificates and verification data so reviewers can check them. See what to preserve alongside a timestamp certificate.

If you are assembling the records now, distinguish earlier evidence from documents prepared for this review. See how to build useful evidence for work developed in the past.

Keep a short list of missing documents, inconsistent names, unclear contributions and unresolved rights. Assign someone to investigate each point and distinguish completed corrections from matters still awaiting agreement or legal assessment.

A reviewer should be able to move from an asset in the inventory to the records supporting it, understand what those records establish, and see where further investigation is needed.