The Data Room in IP Due Diligence

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Here’s a good perspective on the Data Room in IP Due Diligence – for both buyers and sellers. From Fish & Richardson.
In brief:

“A data room is an essential fixture in every IP due diligence process. A data room is the virtual space that holds confidential information that may need to be shared… generally by the seller to the buyer. In biotech or biopharma patent due diligence, the information can be very sensitive, such as details related to drug structure, function, formulations, clinical data, etc. What does and does not go inside can have critical implications for both sellers and buyers.”

As well as deciding what to put online, the seller needs to make sure its chain of title to the IP are clear. Could others claim rights? Are timelines clearly documented.
As with all data rooms, sellers need to make a plan before creating the data room, and make sure that the small details that can de-rail negotiations are dealt with.
The questions Fish & Richardsons highlight for sellers:

  • Who gets access
  • Is the level of content included phased (share more as the deal progresses)
  • What level of access (view-only? or full download)
  • Should the seller provide specific structures or sequences?
  • Should the seller provide FTO (Freedom to operate) or patentability reports?
  • Should the seller include unpublished applications?
  • What confidentiality issues are there?

Read the full article here. This due diligence checklist from upcounsel is also relevant.

If you want to read more about the due diligence data room process, such as how to send Excel files securely, and 3 reasons to take your due diligence Q&A online, check out our blog.

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