IP Due Diligence Operational Guidelines

All China Lawyers Association

Operation Guidelines for Intellectual Property Due Diligence

Contents

Chapter 1General Provisions

.1 The Concept of Intellectual Property Due Diligence

.2 The Meaning of Intellectual Property Due Diligence

.3 The Purpose of Intellectual Property Due Diligence

.3 The Purpose of Intellectual Property Due Diligence32

3 Basic Principles of Intellectual Property Due Diligence

.5 Methods of Intellectual Property Due Diligence

.6 Scope of Intellectual Property Due Diligence

.7 Specific Contents of Intellectual Property Due Diligence

Chapter II Operational Process of Intellectual Property Due Diligence

2.1 Operational Process概述

2.2 确定委托

2.3 立项组队

2.4 制定计划

2.5 前期调查

2.6 资料搜集

2.7 访谈走访

2.8 信息核查

2.9 与第三方机构沟通交流

2.10 报告Write

2.11 Feedback and revision

2.12 Report completed

2.13 Documents for reference

Appendix 1: IP Due Diligence Flowchart

Appendix II: IP Due Diligence Report Sample

Appendix III: IP Due Diligence Archive Checklist

Appendix IV: Common Websites for IP Due Diligence

Appendix V: IP Due Diligence Summary of common regulations for investigationIt cannot be used as a basis for judging whether lawyers are practicing due diligence and compliance, nor can it be used as a basis for investigating lawyers' responsibilities.

1.1 The concept of intellectual property due diligence

Intellectual property due diligence refers to entrusting a third-party professional organization or personnel to conduct a comprehensive investigation and systematic review of the intellectual property rights of the target company based on specific commercial needs, and provide investment for the entrusting party or expected investment. Non-litigation legal service activities that provide the target company with intellectual property information that may affect the expected business plan or other key factors, and ultimately form a professional summary report.

1.2 The significance of intellectual property due diligence

1.2.1 Solving the problem of information asymmetry , to obtain a comprehensive and systematic factual basis, so as to help make an objective and scientific assessment of the accurate value of the target company, facilitate business negotiations and facilitate the conclusion of transactions.

1.2.2 Discovering value and revealing risks

The entrusting party can conduct comprehensive value mining and risk assessment of the target company's intellectual property assets based on the results and reports of intellectual property due diligence, so as to better understand the actual value of the target company's intellectual property, And it is helpful to discover the potential legal risks that may hinder future commercial activities or transactions and the possible hidden costs, so as to avoid the increase of business plan or transaction risks and costs.

1.2.3 Adjust and improve the commercial plan Adjustment and improvement of business plan and transaction structure.

1.3 Purpose of intellectual property due diligence

From a macro perspective,The purpose of intellectual property due diligence is basically the same. There are two main reasons. One is to sort out the intellectual property status of the target company, including the content of rights, ownership of rights, source of rights, burden of rights, and value of rights, etc.; the second is to analyze the existence of intellectual property rights of the target company. Risk, including implementation risk, transaction risk, management risk, etc.

From a micro perspective, the purpose of intellectual property due diligence will vary with the business needs of the client. There are various business needs for conducting due diligence, and different target settings may affect the preparation of due diligence. and analysis focus. For example, if the purpose of the entrusting party's business plan is to obtain the technical employees and technical secrets of the target company, the intellectual property due diligence target setting should focus on the investigation of the employee's situation, and should investigate the target company's service invention achievements, technical personnel's Proportion and incentive methods, whereabouts of technical personnel after the commercial plan or transaction, etc.; if the reason for the entrusting party to conduct due diligence is to obtain the well-known or emerging brand of the target company, the objectives and content of intellectual property due diligence should be based on the objectives Whether the company's brand has been granted full rights protection is determined. Therefore, intellectual property due diligence personnel should fully communicate with the client to understand its expectations and objectives, so as to formulate scientific, reasonable and practical intellectual property due diligence objectives that are consistent with their business plans or transactions.

1.4 Basic principles of intellectual property due diligence Inconsistent, attempts to influence the judgment of the entrusting party. When accepting the entrustment of the entrusting party to carry out intellectual property due diligence on the target company, the entrusted party shall follow the principle of reasonableness and prudence, always maintain a prudent and cautious attitude, and be diligent and responsible.Have reasonable doubts about any data, information and oral statements made by relevant personnel and documents provided, carefully check and verify whether there are major differences or inconsistencies between the obtained information and the actual situation, and avoid excessive trust in the target company. Ignoring potential risks and affecting the authenticity of due diligence findings.

1.4.2 Confidentiality principle

In order to ensure the accuracy of intellectual property due diligence results, the trustee often needs the target company to disclose a large amount of information to it when conducting intellectual property due diligence, many of which involve the target company's operating secrets and technical secrets. , once the leakage will have a significant impact on its business activities. In order to reduce the concerns of the target company and reduce the obstruction of intellectual property due diligence, the entrusted party should always abide by the principle of confidentiality when conducting due diligence, and the information and documents obtained from the entrusting party, the target company and other relevant subjects due to due diligence, The relevant information and other content that you have learned must abide by the confidentiality obligation to prevent the leakage of information.

1.4.3 Principles of professionalism

Intellectual property itself is a professional field that integrates knowledge of law, technology, management, economy, etc. Therefore, intellectual property due diligence requires very high professionalism, requiring investigators to make full use of their own work experience , professional ability, professional sense of smell, etc. to scientifically and objectively judge the intellectual property situation of the target company. Therefore, the intellectual property due diligence team members should not only have a deep understanding of professional knowledge, but also select compound talents with inter-professional background as much as possible, rationally divide labor, complement each other's advantages, and strive to make informed decisions on the target company's intellectual property status and risks. Accurate scientific investigation.

1.4.4 Principle of Objectivity

The trustee generally conducts intellectual property due diligence on the target company based on the trustee's entrustment.However, this does not mean that the entrusted party should be subject to the position and requirements of the entrusting party or the target company when conducting intellectual property due diligence and make false or unrealistic due diligence results. The trustee shall adhere to the principle of objectivity in due diligence, take facts as the basis, conduct investigation and judgment in strict accordance with the provisions of relevant laws and regulations, and issue corresponding legal opinions, and shall not arbitrarily guess or make judgments without sufficient evidence.

1.5 Methods of intellectual property due diligence

1.5.1 Review of documents

Intellectual property due diligence often involves a large number of documents, and review and audit of documents is one of the most commonly used methods in due diligence. After obtaining the corresponding documents, the entrusted party should carefully check and compare the relevant documents to ensure the authenticity, integrity and authority of the documents, and conduct in-depth analysis of the documents to fully explore the real information hidden behind the documents. . Generally speaking, the documents mainly come from the following sources:

1, provided by the entrusting party or the target company voluntarily. In order to complete due diligence, the target company usually provides relevant intellectual property information on its own initiative or at the request of the entrusted party, such as intellectual property ownership certificates, intellectual property-related agreements, etc. The entrusting party should also disclose the relevant information to the entrusting party if it is aware of it.

2. Obtain publicly disclosed intellectual property information related to the target company through third-party channels such as public media and the Internet. For example, inquire about the legal status of intellectual property on the official intellectual property website and professional database, inquire about the litigation situation of intellectual property on the relevant court website, or learn about the latest operating trends of the target company's intellectual property through media reports, etc.

1.5.2 Interview

For some information or problems that are difficult to obtain from written materials, the trustee can obtain information in the form of interviews. The trustee should pay attention,The statements or explanations made by the interviewees in the interviews should not be trusted. The interview contents of the interviewees should be verified with each other and with other materials, and proof materials should be provided, and false statements should be excluded to ensure the authenticity of the interview contents. believable.

1. The content of the interview should not be the same or generalized. Instead, targeted interview content should be designed for interviewees at different levels and positions. At the same time, attention should be paid to designing questions that can confirm each other in the interview content of different objects.

2. Communicate face-to-face with relevant persons in charge of various levels and departments within the target company and employees in specific positions, and conduct interviews on certain specific issues to obtain a more comprehensive and in-depth understanding of the target company. At the same time, interviews can also be conducted with relevant customers, partners and even competitors of the target company when necessary.

1.5.3 Visit

In order to verify the integrity of the target company and the authenticity and credibility of the information provided by the trustee, the trustee can visit the industry association or government department where the target company is located, and learn about the current situation, development trend and goals of the industry by The company's actual competitiveness in the industry, the implementation and application of the target company's intellectual property rights in the industry, etc., to understand the actual value of the target company's intellectual property rights from the side.

1.5.4 On-site field investigation

On-site field investigation means that the entrusted party obtains an intuitive understanding of the target enterprise through on-site inspection and investigation of the R&D, production, sales and other links of the target enterprise. A memorandum should be prepared for reference after the on-site investigation. For target companies with different orientations, the location of their on-site field investigations should be focused. For example, for a research-oriented target company, investigators can focus on visiting its technology R&D department to learn about the technology R&D situation; a brand-oriented target company can focus on visiting its product sales site,Understand the competitiveness of the brand in the market, customer recognition and dependence on the brand, etc.

1.5.5 Correspondence

Correspondence means that the target company cannot submit the original or relevant materials for verification, or the relevant issues are important and it is necessary to ensure the authenticity, and the specific situation can be verified by sending a letter to the relevant unit for verification. A due diligence method.

At the same time, when the relevant information cannot be collected or the real situation cannot be fully understood for some issues, in order to reduce the risk of errors in due diligence, the target company can be required to submit all the materials and documents provided by the target company. Significant omission of declaration or letter of guarantee.

1.5.6 Non-public investigation

When necessary, the entrusted party may also adopt non-public investigation methods to obtain information about the target company's intellectual property rights without the target company's knowledge, such as by contacting the target company's affiliates, competition Opponents and business partners can obtain the required relevant information within the legal scope by asking people in the industry about the target company's situation, etc., and make a memorandum for future reference, so as to reduce the risk of being deceived by the target company's false information.

1.6 Scope of intellectual property due diligence

Different types of intellectual property require different contents to be investigated. The entrusted party can refer to the following general contents of intellectual property due diligence to carry out investigation work.And then combined with the actual situation and rights characteristics to conduct specific investigations.

1.6.1 Ownership status

The target company can acquire intellectual property rights or obtain intellectual property related rights and interests through original acquisition, subsequent acquisition, licensing, etc.

1. When the target company obtains the copyright of the work through independent creation, independent research and development of related technologies and improvement plans, etc., and applies for a patent to obtain the patent right, or obtains the trademark right through the independent design and the application for the exclusive right to register the industrial and commercial logo Under such circumstances, the trustee shall conduct a detailed review of the ownership of the target company’s intellectual property, including:

(1) the registration status on the intellectual property right certificate; Involving work/invention, commissioned work/invention, cooperative work/invention, whether there is a co-owner, etc;

2. When the target company acquires intellectual property rights through transfer, etc., it needs to pay attention to review:

(1) Whether the transfer contract signed between the intellectual property transferor and the transferee is true and legal;

(2) Intellectual property transfer procedures Whether it is legal and complete, and whether the transfer has been registered;

(3) whether the transferred intellectual property is valid;

(4) whether there is a situation in which the transfer of rights is prohibited in the intellectual property;

(5) whether the intellectual property has been licensed to others , in what way to allow others to use it, etc.

3. When the target company obtains the right to use intellectual property through licensing or licenses its intellectual property to others,When conducting due diligence, you need to pay attention to review the following:

(1) intellectual property is licensed or licensed by which way of exclusive license, exclusive license, or general license;

(2) intellectual property license or license How the scope of use is agreed, including the geographical scope, the scope of goods or services, and the scope of authority; ;

(5) Whether the license or the licensed intellectual property has expired or is about to expire;

(6) The license fee of the intellectual property;

(7) Whether the intellectual property license implementation contract has been registered in the relevant department;

(8) Whether there are clauses in the intellectual property license contract that may cause its termination due to changes in the target company, or any clauses that may have a significant impact on the expected business plan or transaction value, etc.

1.6.2 Legal status

's review of the legal status of intellectual property mainly includes:

(1) relevant information on the application, announcement, authorization, and invalidation of intellectual property rights;

(2) the valid status of intellectual property rights, the remaining protection period , payment status.

For trademarks or patents, in order to expand the scope of protection, the target company may also apply for a series of trademarks or patents.for an accurate assessment of the status of entitlements.

1.6.3 Rights content

Different intellectual property rights content is different:

1, copyright content includes publication, modification, signature, etc. personal rights and reproduction, distribution, rental, performance, broadcasting, adaptation, information network dissemination and other property rights;

2, patent rights include manufacturing, use, sales, promises to sell , import, etc.;

3, trademark rights include exclusive use rights, prohibition rights, license rights and other content.

When examining the intellectual property rights of the target company, the entrusted party should not only examine its actual control over the intellectual property rights, but also examine the rights content of its intellectual property rights, especially when the reason for the entrusting party to carry out intellectual property due diligence is to use the target company In the case of intellectual property rights, the entrusted party should focus on examining whether the content of its rights meets the business needs of the entrusting party, such as whether the scope of goods or services approved and registered by the target company’s trademark covers the scope of the entrusting party’s business activities.

1.6.4 Legal risk

The legal risk of intellectual property includes investigation of general litigation, litigation risk analysis and legal risk analysis when no litigation occurs.

1. Investigation of litigation situation: Investigate the litigation situation of the target company, understand the situation and progress of the case, and report the litigation risk according to the analysis opinions of the attorney and the target company. Does the operation have an impact and to what extent.

2. Litigation risk analysis: under the special request of the entrusting party, according to the stipulations of the entrustment contract , further analyze the litigation of the target company, and analyze the risks of the target company in the litigation based on the evidence of the case. To confirm the analysis opinions of the target company and its attorneys,Report truthfully.

3. Risk analysis of not involved in litigation: If the target company is not involved in litigation, if the entrusting party is more concerned about whether there are legal risks in its key intellectual property content, whether the target company will become the accused infringer, the intellectual property rights it enjoys Whether it will be claimed by others has an important impact on the implementation of the entrusting party's expected business plan or transaction. Then, according to the agreement of the entrustment contract, it is necessary to conduct a more in-depth investigation and analysis on whether the target company has the risk of ownership or infringement. Specifically, we can start from the following:

(1) Whether the intellectual property rights such as patents and copyrights enjoyed by the target company may be claimed by others, such as whether there is a competition restriction between the employed employees and the previous employer or the use of others’ trade secrets , technical secrets, etc; There is a conflict between the rights or the legal rights of others, such as whether there will be a conflict between the target company's trademark and others' trade names and domain names;

(4) Whether the target company's intellectual property rights may be revoked or invalid, such as trademarks, domain names Whether it is invalid or revoked due to squatting or other reasons, the patent is invalid because it does not meet the legal requirements for granting patent rights, etc.; How high is the possibility of property rights, what is the risk of infringement, what is the amount of compensation for infringement, whether there is a plan to avoid infringement, etc.

1.7 Specific content of intellectual property due diligence

Intellectual property covers a wide range of content,Including but not limited to: patents, trademarks, copyrights, trade secrets, know-how, network domain names related to enterprises/commodities, protection of appellations of origin, integrated circuit layout design exclusive rights , new plant variety rights and other rights related to intellectual property. However, general intellectual property due diligence is mainly aimed at: patents, trademarks, copyrights, trade secrets, etc.

1.7.1 Copyright due diligence

Copyright due diligence mainly combines relevant materials and information, and conducts due diligence on the following specific content in terms of copyright ownership, legal status, operation, litigation and legal risks enjoyed by the target company :

1. List of copyrighted works of the target company, which should include the certificate number, type of work, author, source of rights, attribution of rights, and restrictions on rights.

2, the completion date of each work of the target company, the date of publication, the remaining rights period, and whether the copyright registration has been handled .

3. If the target company has handled the copyright registration, it will mainly check the copyright registration certificate, verify it in combination with the website of the National Copyright Registration Center, and verify its copyright ownership through interviews and other methods.

4. If the target company has not handled the copyright registration, but claims to have the copyright of the work, it needs to check the relevant agreement, work creation manuscript, software code and related certification documents:

(1) If the target company obtains the copyright by hosting the creation, it needs to check the creation The draft, the minutes and resolutions of the meeting presided over the creation, the time certificate for the completion of the creation, the certificate for the first publication, etc. shall be reviewed; Content review;

(3) If the target company obtains copyright by cooperating with others,It is necessary to review the cooperation agreement, the right attribution agreement, etc.;

(4) If the target company obtains the copyright through personal job creation, it is necessary to review the content of the job work ownership agreement and the company's internal job creation incentive measures;

( 5) If the target company obtains the copyright through the transfer, it needs to review the copyright transfer agreement, the transfer fee payment certificate, the copyright registration change certificate, etc.; The time of publication and whether the country is a member state of the Berne Convention shall be reviewed.

5. If the target company obtains the right to use the copyright by means of a license, the copyright ownership certificate, the copyright license using the protocol, the license fee payment certificate, the scope and limitation of the licensed use, the license type and Review the terms of use and the remaining period.

6. If the target company invests the copyright as a price, it is necessary to review the conditions of the investment object, the relationship between the investment object and the target company, and the reasonableness of the copyright price in the investment agreement.

7. If the target company licenses or sublicenses the copyright to others, it is necessary to review the license agreement, license term, license type, license scope and restrictions, and license fee payment certificate.

8. If the target company pledges the copyright,It is necessary to review the copyright pledge agreement, pledge purpose, duration, and copyright pledge register.

9, the litigation and arbitration of the target company related to copyright or copyright agreement.

10, the non-disclosure agreement between the target company and the core R&D creators, the content stipulated in the non-compete agreement, and the distribution of non-compete compensation.

11. The target company's internal rules and regulations for copyright management and protection, as well as relevant confidentiality measures for core copyrights.

12. The work history of the core R&D and creative personnel of the target company and the labor contract , the non-disclosure agreement, the content of the non-compete agreement and the distribution of non-compete compensation.

13. The specific content of each work of the target company, whether there is a risk of infringing others' prior copyrights (including adjacent rights ) or other prior rights such as the right to name and portrait, or the risk of unfair competition.

The aforementioned items 10-13 depend on the specific needs of the project and the service content agreed with the client, whether due diligence is required.

1.7.2 Trademark due diligence

Trademark due diligence mainly combines relevant materials and information, aiming at the registration application, trademark ownership status, legal status, operation status, litigation situation and legal risks of the registered trademark of the target company. We will conduct due diligence on the following specific content:

1, list of target company’s trademarks, which should include registration type, trademark number, trademark style, application date, authorization date, renewal status, content of goods or services approved for registration, transfer status, Licensing, etc.

2. If the target company's trademark has been approved for registration,It is necessary to check the registration category, trademark number, trademark style, application date, authorization date, renewal status, and the content of goods or services approved for registration for each trademark certificate and notification of changes and renewals. Check the trademark status.

3. If the target company's trademark has not been approved for registration, then:

(1) If the target company's trademark has been submitted for registration but has not been approved for registration, the notice of acceptance of the trademark registration application, the payment certificate for the registration application fee, and the official statement during the application process are required. Approval documents and other contents shall be reviewed in combination with China Trademark Network. , the actual use of the trademark, the well-known situation, etc.

4. If the target company applies for registration of an international trademark, it needs to review the international trademark ownership certificate, application documents, registration application category, and legal provisions of the application country for trademark registration application.

5. If the target company obtains trademark application rights or trademark rights through entrusted design or cooperative design, it is necessary to review the entrustment agreement, cooperation agreement and the content of the ownership of rights.

6. If the target company obtains the trademark application right or trademark right through transfer, it needs to review the transfer agreement, transfer registration certificate, trademark change certificate, transfer fee payment certificate, etc.

7. If the target company obtains the right to use the copyright by means of license, it needs to agree on the trademark ownership certificate, license agreement, license fee payment certificate, the scope and restrictions of the licensed use, the type of license and the term of use and the remaining period, the registration certificate of the license contract, the agreement on the common use of the trademark, etc.

8. If the target company invests the trademark rights as a price,It is necessary to review the situation of the investment object, the relationship between the investment object and the target company, and the reasonableness of the price of the trademark right in the investment agreement.

9. If the target company licenses or sublicenses the trademark rights to others, it needs to review the license agreement, license term, license type, license scope and restrictions, license fee payment certificate, and contract filing status.

10. If the target company pledges the trademark right, it needs to review the copyright pledge agreement, pledge purpose, time limit, and trademark pledge register.

11. The litigation and arbitration of the target company related to trademark rights or trademark rights agreements.

12, whether the target company's trademark is still distinctive, whether there is a risk of being weakened or a generic name called an approved registration category, etc.

13. Review whether the target company has the risk of revoking its registered trademark if it is not used for 3 consecutive years.

14. Examining whether there is a risk of infringing the lawful prior rights of others for the trademarks that have been used by the target company but have not been approved for registration.

The aforementioned items 12-14 depend on the specific needs of the project and the service content agreed with the entrusting party, whether due diligence is required.

1.7.3 Patent due diligence

Patent due diligence mainly combines relevant materials and information to review the target company's relevant patent application authorization, patent ownership status, legal status, operation, litigation and legal risks. Carry out due diligence on the following specific content:

1, list of patents of the target company, the content should include the type, name, application number, application date, publication (吿) number, public (吿) date, authorization date, and validity period of the patent and patent application. , legal status, assignment, licensing, etc.

2, the target company has authorized patents,The patent certificate , the copy of the patent register, the authorization text, the validity period, the annual fee payment certificate, etc. need to be examined.

3. For patents that have been submitted by the target company but have not yet been authorized, it is necessary to review the official documents such as the receipt of application documents, the notice of acceptance of patent application, the notice of entry into substantive examination, and the notice of examination opinion, as well as payment vouchers.

4. If the target company obtains the patent application right or patent right through its own research and development, it is necessary to investigate the sources of materials and technologies used in the research and development, and examine the content of the patent right certificate and technical research and development record documents.

5. If the target company obtains the patent application right or patent right through entrusted development or cooperative development, it is necessary to review the entrusted development agreement, cooperative development agreement, relevant clauses or agreements on the ownership of rights, etc.

6. If the target company obtains a patent right through a personal service invention, it is necessary to review the service invention ownership agreement, the work experience of the inventor or designer, and the company's internal service invention management regulations.

7. If the target company obtains the patent application right or patent right through transfer, it is necessary to review the transfer agreement, transfer registration certificate, patent bibliographic change certificate, change announcement, and transfer fee payment certificate.

8. If the target company obtains the right to use the patent by means of license, it needs to verify the patent ownership certificate, license agreement, license contract record registration certificate, license fee payment certificate, license scope, license type and Review the terms of use, etc.

9. If the target company invests the patent application rights or patent rights as a price, it is necessary to review the patent ownership certificate, the patent right evaluation report , and the investment agreement.

10. If the target company licenses or sublicenses the patent rights to others,It is necessary to review the patent ownership certificate, license agreement, license fee payment certificate, license period, license type, license scope, contract record and other contents.

11. If the target company pledges the patent right, it needs to examine the patent ownership certificate, pledge agreement, patent pledge registration certificate, payment of annual fee, etc.

12. The litigation and arbitration of the target company related to patent rights or patent rights agreements.

13. The non-disclosure agreement between the target company and the core R&D personnel, the content of the non-compete agreement and the distribution of non-compete compensation.

14, the internal rules and regulations of the target company's patent management and protection, and the relevant confidentiality measures for the core technology in the process of research and development.

15. The work history of the core R&D personnel of the target company and the content stipulated in the labor contract, non-disclosure agreement, non-compete agreement and the payment of non-compete compensation with their original units.

16. The stability of the target company's patents, including but not limited to whether the granted patent is subject to reexamination or invalidation procedures, whether the patent (application) belongs to common knowledge and free technology in the technical field, and whether it may be previously disclosed.

17. The target company's competitors' products and patents, and analyze whether the competitor's products have the possibility of infringing the target company's patent rights, or whether the target company's products (especially core products) have the possibility of infringing the competitors' patent rights.

The above-mentioned items 13-17 depend on the specific needs of the project and the service content agreed with the client, whether due diligence is required.

1.7.4 Due diligence on trade secrets

Trade secrets include business secrets and technical secrets.Investigate including but not limited to the following:

1, the target company's commercial secret ownership certification materials, such as technical information or business information formation records, etc.

2. The expression and usage of the target company's trade secrets.

3. The implementation of the company's internal trade secret management system and the implementation of trade secret confidentiality measures, such as whether it has signed confidentiality agreements with employees, non-compete agreements Scope of secrecy, confidentiality obligations, etc.

4. The target company's labor contract involving trade secret R&D personnel, the agreement and incentive measures for job creation or job invention, etc.

5. The work history of the core R&D personnel of the target company and the contents stipulated in the labor contract, non-disclosure agreement, non-compete agreement and the payment of non-compete compensation with their original units.

6. If the target company licenses its proprietary technology to the outside world, it needs to review the license agreement, license term, license type, license scope and restrictions, license fee payment certificate, etc.

1.7.5 Domain name due diligence

In view of the fact that most companies have their own websites, and domain names are the basis for holding websites, and disputes over domain names and trademark rights are frequent, it is necessary to conduct due diligence on domain names to detect and prevent risk.

domain name due diligence should be combined with relevant materials and information, including but not limited to the following:

1, target company domain name and list of corresponding websites,It should include the domain name registration time, website opening time, website name, website filing subject, and the relationship between the filing subject and the target company, etc.

2, target company domain name registration application documents, domain name registration certificate, record information and other ownership certification materials.

3. Time, protection period, remaining period and renewal of the target company's domain name application for registration.

4. The use and transfer of the target company's domain name, including proof of use, transfer agreement, proof of rights change, etc.

5. Litigation, arbitration, etc. of the target company related to the domain name or the domain name agreement.

6. Whether the domain name of the target company has been squatted.

7. Whether the target company's domain name conflicts with other people's legal prior rights such as prior trademark rights, well-known service unique names, etc., and whether there are reasonable reasons for using such domain names and proof materials, etc.

The aforementioned items 6-7 depend on the specific needs of the project and the service content agreed with the client, whether due diligence is required.

Chapter II Operational Process of Intellectual Property Due Diligence

2.1 Operational Process Overview

The necessity and importance of intellectual property due diligence are becoming more and more prominent, and the breadth and depth of due diligence are gradually expanding. Therefore, the knowledge corresponding to specific projects The scope of title due diligence varies. However, in general, intellectual property due diligence is generally carried out according to the following operating procedures:

2.1.1 Sending a demand: the entrusting party will solicit the entrusted party through targeted inquiry or open bidding due to the need for intellectual property due diligence in the relevant project;

2.1.2 Submit quotation: Whether it is in the form of directional inquiry or open bidding, interested intellectual property due diligence units should submit a written quotation or service plan to the entrusting party; actual needs,Select an intellectual property due diligence service unit according to the quotation, sign an entrustment contract, and determine the entrustment relationship and due diligence content;

2.1.4 Project establishment and team formation: The entrusting party and the entrusting party respectively set up the intellectual property due diligence project, and each selects the appropriate

2.1.5 Formulation of a plan: the entrusted party formulates a work plan and a list of due diligence contents according to the actual situation and time node of the project;

2.1.6 Preliminary investigation: the entrusted party conducts an investigation based on the preliminary information provided by the entrusting party and the Internet public channels. Pre-investigation of the due diligence objectives involved in the project;

2.1.7 Data collection: The entrusted party draws up a list of data based on the preliminary investigation and actual needs, and collects data through the methods provided by the consignor, by the entity under investigation, and by self-collection;

2. 1.8 Interviews and visits: Based on the actual needs of the project, the entrusted party makes an interview list for the actual controllers, shareholders, senior managers, and core technical personnel of the target unit, and obtains relevant information through interviews and visits;

2.1.9 Verification information: for the entrusting party, The information provided by the target unit and the content learned from the interviews require the relevant units and personnel to make real and legal commitments. At the same time, the trustee needs to verify the relevant information and materials through credible channels such as government departments and third-party agencies;

2. 1.10 Communicate with third-party institutions: During the process of intellectual property due diligence, under the organization of the entrusting party, it is also necessary to maintain good communication with third-party institutions such as appraisal agencies and accountants, such as the arrangement of entry, data collection, interview arrangements and even In the process of information verification and other processes, the parties shall communicate and exchange in a timely manner the parts that overlap or may have mutual influence;Based on this, draft and write intellectual property due diligence report;

2.1.12 Feedback and revision: make necessary adjustments and revisions according to the feedback from the entrusting party and related institutions on the draft of the intellectual property due diligence report;

2.1.13 Supplementary due diligence: in the benchmark If there is a change in the time node such as the day, the main intellectual property target changes, or it is really necessary, carry out supplementary intellectual property due diligence according to the actual needs of the project;

2.1.14 Completion of the report: combined with intellectual property due diligence (including supplementary due diligence) According to the results of the entrusting party, refer to the feedback from the entrusting party, make final adjustments, and complete the intellectual property due diligence report;

2.1.15 Archive for future reference: In accordance with legal regulations, contractual agreements and internal requirements of the unit, further check the working papers, due diligence process of intellectual property due diligence The report shall be archived for future reference.

2.2 Determining the entrustment of

With the increasing emphasis on intellectual property, the scope and degree of due diligence requirements for intellectual property will inevitably change accordingly. According to the different entrusting subjects, purposes, and investigation objectives of intellectual property due diligence, the content that needs to be paid attention to in the process of determining the entrusting relationship is also very different.

2.2.1 The entrusting subjects of intellectual property due diligence are diverse, and different subjects have different purposes and needs for due diligence. However, due to the particularity of intellectual property rights, when the entrusting entity issues the demand for intellectual property due diligence, its own content and direction of due diligence may not be accurate.

2.2.2 When the professional intellectual property due diligence team receives the due diligence request from the entrusting party, it shall conduct a conflict of interest search on the matters to be entrusted in advance; Due diligence project characteristics, fully communicate with the entrusting party to understand the purpose of its intellectual property due diligence,Determine its actual needs and lay the foundation for the subsequent formulation of service plans and quotations.

2.2.3 When formulating a service plan, the identity of the client and the characteristics of the project should be fully considered, and service content that meets the actual needs of due diligence should be formulated in a targeted manner. For example, for intellectual property due diligence in the process of listing for the final issue of legal opinions, when formulating service content, more attention should be paid to the comprehensive investigation of the target entity’s intellectual property ownership and litigation; When investors conduct due diligence on intellectual property rights in the investment process of target companies, they also need to focus on the stability of intellectual property rights and the investigation and analysis of infringement risks.

2.2.4 Before formulating a service plan, based on the project information provided by the entrusting party, conduct a preliminary search on the main business and intellectual property ownership of the investigation target through public channels such as the Internet, and predict the workload of due diligence, so as to better Targeted development of service content and service quotations.

2.2.5 In view of the professionalism and particularity of intellectual property rights, when formulating service plans, taking into account the characteristics of the entrusting party and the affordability of expenses, it is also possible to serve the entrusting party on the basis of meeting the basic requirements of intellectual property due diligence for the project. Provide a variety of solutions for basic service content and in-depth service content (such as intellectual property rights stability, infringement risk or conflict with others' prior rights, etc.), and clarify to the entrusting party that different service content can ultimately obtain different levels of information for The entrusting party chooses according to its actual situation.

2.2.6 Regardless of whether the entrusting party is in the form of directional inquiry or open tendering, the interested intellectual property due diligence team should submit a written quotation or service plan to the entrusting party. can be adjusted accordingly,However, it should at least include a brief analysis of the relevant project, the scope and content of the proposed due diligence, and the corresponding quotation for the corresponding service content.

2.2.7 After the entrustment is confirmed, a written entrustment contract and power of attorney should be signed with the entrusting party on the intellectual property due diligence of the target project. The main points of the entrustment contract should include the basic information of the target company, the purpose of due diligence and the scope of services , delivery time and requirements of work results, service fees, rights and obligations of both parties, confidentiality agreement and other substantive content.

2.3 Forming a project team

After the entrustment relationship is determined, the entrusting party and the entrusting party shall establish the project separately, and jointly set up a project team to carry out intellectual property due diligence in a timely manner.

2.3.1 After the entrustment relationship is determined, the entrusting party and the entrusting party shall establish a project internally, arrange personnel and follow-up work, make a plan for the expected expenses, apply in advance and arrange for payment.

2.3.2 Intellectual property has the characteristics of being professional and interdisciplinary. The team members required for due diligence around intellectual property must also be professional and complex. Therefore, the entrusting party and the entrusting party should be organized according to the actual situation and needs of the project. The members of the project team can generally include management personnel, technical personnel, lawyers who focus on legal affairs, lawyers with technical background and other assistants, etc. designated by the client.

2.3.3 The project team shall designate a person in charge (generally the manager designated by the entrusting party) and a contact person; if the entrusted party assigns multiple people to participate in the intellectual property due diligence project, the contact person and the contact person of the entrusting party shall be responsible for the work. Arrange and connect.

2.3.4 According to the main content of intellectual property due diligence, the corresponding personnel assigned by the entrusted party will also be different. If the main investigation content is patented technology, lawyers with technical background shall be assigned to participate.Ideally, attorneys with similar technical backgrounds as the patent being investigated should participate.

2.3.5 Before determining the members of the project team, the trustee shall conduct self-examination on the proposed participants to ensure that the proposed participants and their close relatives have no conflict of interest or interest relationship with the project, and require the participants to sign a letter of commitment and Confidentiality Agreement.

2.4 Formulating a plan

After the project team is formed, a work plan should be formulated according to the background, specificity and requirements of the project, combined with various time nodes, and the personnel and the work content of each stage should be reasonably arranged.

2.4.1 Target companies with different orientations in different projects (including but not limited to brand-oriented, technology-oriented, entertainment-oriented and comprehensive, etc.) have large differences in the proportion of intellectual property rights objects, and different project backgrounds (Including but not limited to mergers and acquisitions, listing, overseas investment, intellectual property securitization, etc.) The content and direction of intellectual property due diligence are also quite different. Therefore, when formulating a work plan, it is necessary to fully consider the specific characteristics of a specific project, grasp the key content of the work, reasonably estimate the working time, and arrange suitable personnel according to the background requirements.

2.4.2 The entrusted party shall designate the person in charge of the project and take full responsibility for the due diligence work. The members participating in the project shall divide the work of the intellectual property due diligence content item by item, and sign the list of division of work to clarify the responsibilities.

2.4.3 The entrusted party shall fully communicate with the entrusting party and relevant agencies and other time points when formulating the work plan, and arrange various tasks reasonably; Actively communicate with the entrusting party, ask the entrusting party to coordinate, and plan in advance the time for entry, personnel interviews and information provision.

2.4.4 After the work plan has been formulated, it shall be sent to the client for review.For the opinions of the entrusting party on the work content and time arrangement, try to cooperate with the amendment, and if it is unable to cooperate with the amendment, it shall explain to the entrusting party.

2.4.5 After the work plan is formulated, if there is a change in the time node such as the base date or other major changes in the project, the work plan should be revised in time to ensure that the project process is not affected as much as possible.

2.5 Preliminary investigation

Before formal due diligence, it is recommended that the entrusted party conduct preliminary investigation on the basic information of the target company, so as to carry out the subsequent preparation of the target company's document supply list and interview outline and the verification of key materials.

2.5.1 Investigate industrial and commercial information: The trustee can inquire about corporate credit information through public channels, including business license information, information on shareholders and capital contributions, information on existence and change, information on branch offices, information on administrative licensing and punishment, information on dishonesty, etc.; The people's court publishes documents to inquire about the litigation-related information of the target company.

2.5.2 Investigate business information: learn about the target company's production and operation status, R&D status, main business and products through the target company's official website; learn about the target company's competitive advantages, the popularity of the company and related products and services through public media reports, etc. .

2.5.3 Investigate intellectual property information: query the target company's patent, trademark, copyright and domain name application, authorization, registration, registration, license, transfer and pledge information through the national public website or professional intellectual property database.

2.6 Data collection

After completing the preliminary investigation, the entrusted party should integrate the information collected by itself and the information provided by the entrusting party, sort out the project background and clarify the due diligence objectives again. Based on this goal, combined with the basic information and business model of the target company, a list of documents to be provided by the target company is drawn up.Ask them to provide appropriate information and verify.

2.6.1 Document supply list: In addition to listing the material names, the document supply list prepared by the entrusted party should also provide necessary explanations for professional documents or industry terms, and at the same time, it should clarify the method of supplying materials, such as whether to show the original, and the copies to be kept. The number of copies and the form of official seal, etc.

2.6.2 Industrial and commercial information: The trustee shall require the target company to present or retrieve the original industrial and commercial registration information file of the target company, which includes the business license, legal representative's identity certificate, application for establishment registration, shareholder identity certificate and capital contribution ratio , Articles of Association, capital verification report, capital contribution, office space certificate, bank account, previous changes, board information, branches, foreign investment, etc. It should be noted that the entrusted party needs to go through the entrustment procedures with the target company to obtain the file from the local administration for industry and commerce. In addition, the target company may also be required to provide other documents such as personnel organization charts as needed.

2.6.3 Administrative examination and approval: The entrusted party searches the relevant laws and regulations, policy regulations, industrial policies and other regulatory provisions of the target company's industry based on the preliminary investigation information to determine whether its business scope has special industry or industry guidance restrictions . For industries that require administrative approval or franchising, relevant approval documents, filing documents, etc. shall also be required.

2.6.4 Intellectual property: The trustee shall require the target company to present all its intellectual property certification documents, including but not limited to the notice of acceptance of patent application, notice of rejection, notice of grant of patent rights, patent certificate, patent issued by the State Intellectual Property Office Registration form, payment information, etc.; notice of acceptance of trademark application, notice of preliminary trial announcement, trademark registration certificate, renewal certificate, etc.; copyright registration application documents, copyright registration certificate; domain name filing information, etc. In particular, it should be noted that the target company has submitted an application or obtained authorization,However, the supporting documents of the information that has not been announced by the national publicity system.

2.6.5 Technical data: The entrusted party may request the target company to provide other technical data that are not protected in the form of intellectual property rights under Item 2.6.4, especially in the form of patents, such as data on scientific and technological projects under development, completed, and expected to be carried out, and technical achievements Materials, technology award certificates, project establishment and evaluation reports in the national science and technology system, completion status of technology transformation implementation projects, as well as the target company's management and confidentiality rules, regulations and agreements involving related technologies.

2.6.6 Relevant agreements: The trustee shall require the target company to provide all intellectual property related agreements, including but not limited to intellectual property or technology licensing contracts, transfer contracts, development contracts, etc., as well as the validity, filing and performance of the contracts.

2.6.7 Data summary: After collecting the data, the entrusted party should summarize and organize the data in a timely manner, indicating the source, type, whether the data is original, whether there is any relationship or conflict between the data and other basic information, and if necessary, make supplementary due diligence and Develop a list of supplementary information.

2.7 Interviews and visits

The trustee may directly contact the target company and its personnel by means of interviews and visits to understand or verify undisclosed or conflicting information.

2.7.1 The entrusted party shall fully communicate with the target company the purpose and significance of the due diligence investigation based on the requirements of the entrusting party and the project, reasonably determine the interviewee and arrange the interview time, so as to obtain the cooperation, understanding and cooperation of the target company and the interviewee. trust.

2.7.2 Before conducting the interview, the entrusted party shall issue a confidentiality commitment letter to the target company and the interviewee in advance, promising to undertake the confidentiality obligation of the target company's business information and technical information that has not been publicly disclosed during the interview and due diligence, so as to ensure The target company and interviewees fully disclose relevant information.

2.7.3 After identifying the interviewee,The entrusted party shall draw up an interview outline based on the position and position information of the interviewee, and especially shall focus on interviewing the information that has not been publicized or fully disclosed through public channels, and verify the conflicting information in the materials. The following exemplifies the interview content that should be paid attention to when conducting interviews with people in different positions:

(1) Company managers: First of all, the target company's managers should understand the general situation of the target company, such as operation status, production and operation mode, industry reputation, competition power and major competitors, litigation-related information, core intellectual property rights and/or technologies, research and development projects, research and development results, research and development plans, and research independence. Secondly, interviews should be conducted on the work experience of these personnel, whether they have signed confidentiality agreements and non-compete agreements, etc.; achievements, R&D plans, and research independence. At the same time, it is necessary to understand the position, specific work content, work experience, work results, etc. of the technical personnel to analyze whether the target company's intellectual property rights have the risk of ownership disputes.

2.7.4 Interview transcripts: The entrusted party shall assign at least two interviewers to conduct individual interviews with the interviewees, and make interview transcripts according to the interview contents. The interviewers and interviewees shall sign the transcripts after confirming that they are correct. The interview transcript should be attached with the interviewee's identity certificate and labor contract as attachments, and the interview process should be photographed and kept.

2.8 Information verification

After obtaining sufficient information through preliminary investigation, data collection, interviews, etc., the entrusted party needs to organize, summarize and screen the data to verify the authenticity and relevance of the data.

2.8.1 First of all, it should be emphasized that all relevant information should be subject to the information publicly disclosed by the relevant administrative departments.The information disclosed by the third-party website and the materials and interview records provided by the target company are used as confirmation or supplement. For information whose authenticity is doubtful, the entrusted party may verify with the relevant administrative department and request the administrative department to issue corresponding certification documents.

2.8.2 If the relevant information stated by the target company in the interview cannot be confirmed, it should be required to issue a letter of commitment to ensure the authenticity of the information and assume corresponding responsibilities. In order to ensure the accuracy and credibility of the data, it is recommended that the entrusted party conduct interviews with different interviewees about the same content, or use multiple methods to verify each other and obtain supporting materials.

2.9 Communicate with third-party agencies

In a due diligence project, intellectual property is often only one part of the content. In addition to intellectual property due diligence service units, the entrusting party will also entrust securities companies, accountants, asset appraisal agencies, auditors Institutions and other intermediaries work together to conduct due diligence on other content. At this time, the trustee should actively maintain communication with third-party agencies during the due diligence process to ensure the authenticity and consistency of the information.

2.9.1 When the entrusted party and the third-party agency jointly carry out due diligence work, the investigation content may overlap or overlap. Due to the different focus and purpose of the investigation, the angle of each party's exploration and analysis of the problem will be different. Therefore, it is recommended to During the due diligence process, the entrusted party regularly summarizes the conflicting or questionable information and related risks exposed during the investigation process, and regularly holds meetings with third-party institutions to verify each other’s problems, express their opinions and listen to others’ professional opinions. .

2.9.2 For some inter-professional or inter-disciplinary issues, such as the financial issues of the target company, the valuation of intellectual property assets, etc., the trustee should communicate with professional third-party institutions and refer to their professional opinions.in order to detect potential risks in time.

2.10 Report writing

After the investigation and analysis work is completed, the trustee shall integrate the contents of the investigation work, the analysis of the data involved in the investigation, the intellectual property issues found and the corresponding handling opinions, etc., and write them down in writing Report.

2.10.1 The intellectual property due diligence report should be targeted and consistent with the actual needs of the entrusting party and the purpose of conducting due diligence. The language of the report should be professional and concise, logically clear, coherent, and focused.

2.10.2 The preface of the intellectual property due diligence report shall include the following contents: statement of purpose of due diligence report and limitation of liability, interpretation of relevant terms, scope of entrustment and due diligence, and background of due diligence.

2.10.3 The main body of the due diligence report should include the following: the first part is the statement of facts, including the work plan and completion status; the basic information of the relevant personnel of the target company participating in the due diligence investigation, the intellectual property rights of the target company and its competitors, and relevant industry fields The second is the specific legal provisions applicable to the analysis of the relevant facts; the last is the legal risk analysis and recommendation part. Disclose the existing legal risks and provide professional handling opinions or solutions accordingly.

2.10.4 The due diligence process will involve a large amount of documents and materials. The entrusted party can use the list of materials provided by the entrusting party and the target company, documents that play an important role in the legal risks disclosed in the report, relevant certification materials, etc., and based on relevant materials. Organize the charts, summary tables and other information produced as attachments to the due diligence report to make the report more complete and comprehensive.

2.11 Feedback and revision

After the trustee has written the first draft of the intellectual property due diligence report,It should be provided to the entrusting party and third-party institutions participating in due diligence in a timely manner, and adjustments should be made based on feedback.

2.11.1 After receiving the feedback from the entrusting party, the entrusted party shall fully verify and verify the problems mentioned in the feedback in the principle of objectivity, professionalism and prudence before deciding whether to adopt it and make corresponding revisions in the report.

2.11.2 After the entrusted party completes the first draft of the report, if the entrusted party finds or is informed that the relevant facts have changed, the entrusted party shall communicate with the entrusting party, conduct supplementary due diligence or revise the contents of the report as necessary, and re-evaluate the legal risks of the project.

2.11.3 After completing the first draft of the report, if the entrusted party finds that the information obtained during the due diligence process is genuine, doubtful, incorrect or incomplete, or that major key information is omitted or newly discovered, it shall supplement it in a timely manner. Conduct due diligence and update relevant content in the due diligence report in a timely manner.

2.12 Completion of the report

On the basis of a comprehensive and systematic arrangement and review of the due diligence work, combined with relevant feedback and revision opinions, the trustee finally completed the intellectual property due diligence report.

2.12.1 The intellectual property due diligence report shall indicate the reporting date and the deadline for obtaining relevant materials, and attach the signature and seal of the trustee, indicating that it is legally responsible for the due diligence report and its results.

2.12.2 After the intellectual property due diligence report is completed and before signing, the trustee shall arrange for writers and non-writers to prudently check and cross-check the due diligence report, to avoid clerical errors or format errors, which are inconsistent with the working papers Wait for mistakes.

2.13 Archive for future reference

Intellectual property due diligence involves a lot of content and documents, it is necessary to completely preserve the work records formed in the process of issuing the intellectual property due diligence project report, as well as all documents and materials obtained during the work.In order to check and reflect the problems and deficiencies of the project work.

2.13.1 Intellectual property due diligence should establish a working paper system, which is an important evidence for judging whether the due diligence team is diligent and responsible.

2.13.2 The due diligence working papers filed for reference refer to the general term for various work records and important materials related to the project obtained and produced by the due diligence project members during the due diligence process.

2.13.3 The working papers shall truly, accurately and completely reflect the due diligence work carried out, and shall be able to cover and truthfully reflect all the data and materials of the entire intellectual property due diligence, as well as the analysis and evaluation of relevant personnel.

2.13.4 The production of working papers should be in standard format, clear records, concise and easy to understand, and clear in expression, and can be numbered, sorted and classified according to the logical sequence of project work, and a unified catalogue should be established for easy reference and verification. 2.13.5 All documents involved in the project should be archived for future reference, and the project members should be responsible for the filing and reference work. 2.13.6 All archived documents should fully reflect important information such as the name of the document, the content of the document, the source of the document, the handover personnel and the corresponding date, and be accompanied by the signature of the person in charge to form a strict entry and exit record. 2.13.7 For the relevant information obtained and confirmed from a third party other than the target company, in addition to indicating the source of the information, the project members should also implement necessary investigation procedures to form corresponding investigation records and necessary signatures. 2.13.8 Before filing all documents and materials for future reference, the working papers should be carefully checked. Once any omissions or other defects are found, they should be reported to the team leader in time.and take appropriate remedial measures in a timely manner. 2.13.9 The storage period of all paper and electronic documents for project filing shall be no less than ten years.

Appendix 1: IP Due Diligence Flowchart

Appendix 2: IP Due Diligence Report Sample

Intellectual Property Due Diligence Report on ***Project

Foreword

Legal Responsibility Statement

***The Law Firm is entrusted with *** Conduct legal due diligence on the intellectual property status and risks of the project (hereinafter referred to as "the project"), and issue this report to the client (hereinafter referred to as the "client") who is responsible for this legal due diligence.

This report is based on the documents, explanations, interviews and other information provided by relevant personnel to our lawyers as of the date of this report, as well as information obtained by our lawyers through public inquiries.

This report is based solely on the information the firm has obtained so far from the information provided by the target company and the facts verified by the firm. Therefore, if further information becomes available to the Firm after the publication of this report, this report will need to be updated accordingly and may cause some of the conclusions contained therein to change.

The firm only conducts due diligence on this intellectual property from the perspective of Chinese law and at the request of the client. The analysis and suggestions made by the firm in this report are based on the laws and regulations that have been publicly released and are currently in force in China as of the date of this report. The firm does not express any opinion on investment decisions such as project feasibility, technical level, development prospects, etc., as well as other legal issues other than Chinese legal issues.

This report is issued to the client only for the purpose stated in this report. Without the prior written consent of the firm, this report shall not be used by any other unit or individual, nor shall it be used for any other purpose.

Definitions of related terms

In this report,除非文义另有所指，下列用语具有下述涵义：

简称	指	全称
	指
	指
	指

正文

一、本项目知识产权尽职调查的背景

二、本所工作计划及工作内容

3. Basic information of the participants in this project

4. Scope of intellectual property due diligence in this project

5. Basic intellectual property status of the target company

6. Legal risk analysis and suggestions

7.Appendix

Appendix

Appendix document list

Appendix 1 : Interview photos

Attachment 2: Interview records

Attachment 3: Labor contracts of the survey respondents (confidentiality agreement, non-compete agreement)

Attachment 4: Intellectual property documents: including but not limited to patent certificates (including patent specifications, patent claims , important documents issued by administrative agencies, etc.), copyright registration and modification documents,Trademark certificate and change notice, domain name registration certificate, etc.)

Attachment 5: Intellectual property related honors

Attachment 6: Intellectual property contract

Attachment 7: Letter of commitment/guarantee名称

文件主要内容

是否原件

交接人及日期

备注

.授权手续

1.1

利益冲突检索

授权手续及保密承诺

1.2

委托合同

1.3

保密协议及承诺书

.目标公司基本信息

.著作权

.商标权

. Patent rights The time of obtaining the right, the method of obtaining it, the term of protection, and the payment of annual fees项权利

.商业秘密及管理

. 域名

. Information about litigation .3

Appendix 4: Commonly used websites for intellectual property due diligence

1. Commonly used websites for corporate information inquiry:

1, National Enterprise Credit Information Publicity System: http://www.gsxt.gov.cn /index.html;

2, Tianyancha: https://www.tianyancha.com/;

3, Qixin Insurance: http://www.qixin.com/;

4, Qixinchacha: http://www .qichacha.com;

5, National Organization Code Management Center: www.nacao.org.cn.

2.1	营业执照	目标企业的成立背景、登记注册时间、历史沿革、经营范围、股权结构、对外投资、业务经营等基本信息
2.2	章程
2.3	工商登记资料
2.4	员工名册	研发机构体制及设置、研发人员构成及资历等
2.5	财务报表	研发费用及投入情况
3.1	著作登记证书、时间戳等	著作权的权属情况（是否涉及职务作品、委托作品、 Cooperative works, etc.); the time of initial acquisition of copyright, the method of acquisition, and the term of protectionml17
3.3	作品清单	著作权的权利类型等
3.4	他项权利证书	是否存在他项权利
4.1	商标注册证、核准转让注册商标证明等	商标的权属情况、取得方式(such as: original acquisition, subsequent acquisition, etc.), acquisition time, protection period, renewal fees, etc不被核准注册的情况等
4.3	他项权利证书	是否存在他项权利
4.4	荣誉证书等	商标的使用情况及驰名状态等
4.5	核准续展注册证明	Payment and renewal of trademarks, etc.
5.4	荣誉证书等	专利的使用情况
6.1	商业秘密文件	商业秘密的内容、数量、范围、重要程度及采取的保护措施
6.2	保密协议、竞业Restriction agreements, etc.	Confidentiality system, personnel management, archive management, anti-disclosure mechanism, training work, reward and punishment measures, resignation management and other trade secret management measures公式等	目标公司的技术积累和知识经验等专有技术情况
7.2	技术许可协议	专有技术对外许可情况
7.3	管理规章制度	对专有技术的管理制度
8.1	域名Situation	Ownership of the domain name, acquisition time, acquisition method, etc.
8.2	Others7
News about the target company's litigation
0. Implementation and operation
10.1	license agreement如：转让、许可、质押、出资等
10.2	转让协议、质押合同
10.3	出资协议等
1. 访谈记录及受访者提供的证明材料
11.1	访谈记录
11.2	访谈图片、音频等
11 .3	Evidence provided by respondents

. Commonly used websites for inquiring about litigation information:

1, China Judgment Documents Website: http://wenshu.court.gov.cn/;

2, China Intellectual Property Judgment Documents Website: http://ipr.court.gov .cn/;

3, Peking University Magic Weapon: http://www.pkulaw.cn/;

4, Worcester First: http://law.wkinfo.com.cn/;

5, OpenLaw: http:// openlaw.cn/;

6, non-litigated cases: https://www.itslaw.com/;

7, Caseshare: http://www.caseshare.cn.

. Commonly used copyright inquiry websites:

1, National Copyright Administration website: http://www.ncac.gov.cn/;

2, National Copyright Protection Center (National Copyright Registration Portal): http://www. gapp.gov.cn/govservice/108.shtml;

3, China Copyright Protection Center: http://www.ccopyright.com.cn/;

4, China Copyright Online: http://www.chinacopyright.org.cn ;

5, Qichacha: https://www.qichacha.com/more_zzqs.

4. Commonly used trademark inquiry website:

1, China Trademark Website: http://sbj.saic.gov.cn/;

2, ITAOTM Trademark Inquiry Website: http://www.itaotm.com/;

3, Trademark Classification Table: http://www .sbfl.cn/;

4, Qichacha: https://www.qichacha.com/more_brands;

5, Wisdom Bud trademark patsnap: http://trademark.patsnap.cn;

6, Madrid international trademark search: http ://www.wipo.int/romarin;

7, EU trademark search: https://oami.europa.eu/ohimportal/en/.

5. Commonly used patent search websites:

1, Comprehensive service platform of State Intellectual Property Office: http://www.sipo.gov.cn/zhfwpt/;

2, China Patent Information Network: http://www.patent. com.cn;

3, Patent search and analysis: http://www.pss-system.gov.cn/sipopublicsearch/portal/index.shtml;

4, SooPAT patent search: http://www.soopat.com/;

5, incoPat technology innovation intelligence platform: http://www.incopat.com/#page1;

6, patsnap wisdom bud: http://www.zhihuiya.com/;

7, INNOJOY: http://www.innojoy.com/searchresult/default.html;

8, US patent and trademark query: http://www.uspto.gov.

6. Commonly used domain name query website:

1, Ministry of Industry and Information Technology ICP/IP address/domain name information record management system: http://www.miitbeian.gov.cn/publish/query/indexFirst.action;

2, website Long tool: http://tool.chinaz.com/;

3, whois query-China million net: https://whois.aliyun.com.

Appendix 5: Summary of Commonly Used Regulations for Intellectual Property Due Diligence

I. Regulations on Intellectual Property Due Diligence

1, Securities Law of the People's Republic of China (2014)

2, Law Firm Securities Law Practice Rules (for Trial Implementation) (China Securities Regulatory Commission 2010)

3, Administrative Measures for Law Firms Engaged in Securities Legal Business (China Securities Regulatory Commission, Ministry of Justice of the People's Republic of China 2007)

4, Administrative Measures for Initial Public Offering and Listing on the Growth Enterprise Market (Order of China Securities Regulatory Commission 2015 Revised in 2009)

5. Guidelines for the Contents and Formats of Information Disclosure by Public Offering Companies No. 6 (revised by China Securities Regulatory Commission in 1999)

6, Regarding the comprehensive strengthening of intellectual property adjudication work for the construction of innovation Opinions on Providing Judicial Guarantee for a Model Country (Supreme People's Court, 2007)

7. Circular on Further Strengthening Judicial Protection of Intellectual Property Rights (Supreme People's Court, 2004)

8, Opinions on Several Issues concerning Intellectual Property Judgment and Serving the Overall Situation under the Current Economic Situation (Supreme People's Court, 2009)

9, Regarding Criminal Handling of Intellectual Property Infringement Interpretation of Several Issues Concerning the Specific Application of Law in Cases II (Supreme People's Court, Supreme People's Procuratorate, 2007)

10, Interpretation of Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Intellectual Property Infringement (Supreme People's Court, Supreme People's Procuratorate, 2004)

II. Copyright-related regulations

1, Copyright Law of the People's Republic of China (2010)

2, Regulations on the Implementation of the Copyright Law of the People's Republic of China (revised by the State Council in 2013)

3, Regulations on the Collective Administration of Copyright (revised by the State Council in 2013)

4, Regulations on the Protection of Information Network Dissemination Rights ( State Council Revised in 2013)

5, Computer Software Protection Regulations (revised by the State Council in 2013)

6, Provisions on the Implementation of International Copyright Treaties (State Council 1992)

7, Copyright Pledge Registration Measures (National Copyright Administration 2011)

8, Computer Software Copyright Registration Measures (National Copyright Administration, 2002)

9, Provisions on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Infringing the Right of Information Network Dissemination (Supreme People's Court, 2013)

10, Interpretation on Several Issues concerning the Application of Law in the Trial of Copyright Civil Disputes Court 2002)

3. Trademark-related regulations

1, Trademark Law of the People's Republic of China (revised in 2013)

2, Regulations on the Implementation of the Trademark Law of the People's Republic of China (revised in 2014 by the State Council)

3, Trademark Examination and Trial Standards (State Administration for Industry and Commerce 2017 Revised in 2014)

4, Provisions on the Recognition and Protection of Well-known Trademarks (State Administration for Industry and Commerce, 2014)

5. Provisions on the Procedures for the Registration of the Pledge of the Exclusive Right to Register a Trademark (State Administration for Industry and Commerce, 2009)

6, Interpretation of the Supreme People's Court on the Jurisdiction of Trademark Cases and the Application of Law after the Implementation of the Decision on the Amendment of the Trademark Law (The Supreme People's Court, 2014)

7, Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases Involving the Protection of Well-known Trademarks (Supreme People's Court, 2009)

8, Interpretation of Several Issues on the Application of Law in the Trial of Trademark Civil Dispute Cases (Supreme People's Court, 2002)

IV. Patent-related regulations

1, Patent Law of the People's Republic of China (revised in 2008)

2, Law of the People's Republic of China on Promoting the Transformation of Scientific and Technological Achievements (revised in 2015)

3, Law of the People's Republic of China on Progress in Science and Technology (revised in 2007)

4, Patent of the People's Republic of China Regulations for the Implementation of the Law (revised by the State Council in 2010)

5, Regulations on Patent Agency (revised by the State Council in 1991)

6, Regulations on National Defense Patents (revised by the State Council and the Central Military Commission in 2004)

7, Guidelines for Patent Examination (revised by the State Intellectual Property Office in 2017)

8, Patents Administrative Law Enforcement Measures (Amended by the State Intellectual Property Office in 2015)

9, Measures for Compulsory Licensing of Patent Implementation (Amended by the State Intellectual Property Office in 2012)

10 Several Provisions on the Application of Law in the Trial of Patent Dispute Cases (Amended by the Supreme People's Court in 2015)

11, on Several Provisions on the Application of Legal Issues to Suspension of Patent Infringement Before Litigation (Supreme People's Court, 2001) Provisions (State-owned Assets Supervision and Administration Commission of the State Council, 2010)

3, Several Provisions on Prohibiting Infringement of Trade Secrets (State Administration for Industry and Commerce 1Amended in 1998)

4, Interpretation of Several Issues Concerning the Application of Law in the Trial of Unfair Competition Civil Cases (Supreme People's Court, 2007)

6. Domain Name Relevant Regulations

1, China Internet Network Information Center Domain Name Dispute Resolution Procedure Rules (China Internet Network Information Center) Revised in 2012)

2, China Internet Network Information Center Domain Name Registration Implementation Rules (revised in 2012 by China Internet Network Information Center)

3, Uniform Dispute Resolution Policy (Uniform Dispute Resolution Policy,Internet Corporation for Assigned Names and Numbers (ICANN) 1999)

4, Notice of the General Office of the China Banking Regulatory Commission on Strengthening Domain Name Protection of Banking Financial Institutions (China Banking Regulatory Commission 2010)

5, Ministry of Industry and Information Technology on Strengthening the Internet Circular on the Security Guarantee of Domain Name System (Ministry of Industry and Information Technology, 2010)

6, Interpretation on Several Issues concerning the Application of Law in the Trial of Civil Disputes Involving Computer Network Domain Names (Supreme People's Court, 2001)

VII. Other Relevant Provisions

1, On Trial Provisions on Several Issues in Civil Dispute Cases of Conflicts between Registered Trademarks, Enterprise Names and Prior Rights (Supreme People's Court, 2008)

2, Regulations of the People's Republic of China on the Protection of New Plant Varieties (revised by the State Council in 2014)

3, Regulations on the Protection of Layout Designs of Integrated Circuits (State Council, 2011)

4, Notice of the General Office of the State Council on Issues Concerning Strengthening the Management of Integrated Circuit Cards (General Office of the State Council, 1997)

5, Notice of the Supreme People's Court on Carrying out Trials of Cases Involving Layout Design of Integrated Circuits (Supreme People's Court 2011 Year)

6, Regulations of the People's Republic of China on the Administration of Technology Import and Export (revised by the State Council in 2011)

7, Administrative Measures for the Registration of Technology Import and Export Contracts (revised in 2009 by the Ministry of Commerce)

8, General Office of the Ministry of Commerce on the import and export of dual-use items and technologies Notice on the Issue of Certificate Replacement (Ministry of Commerce, 2007)

9, Interpretation on Several Issues Concerning the Application of Law in the Trial of Technology Contract Dispute Cases (Supreme People's Court, 2005)

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Source [Fist Clap] All China Lawyers Association

1.1 The concept of intellectual property due diligence

Intellectual property due diligence refers to entrusting a third-party professional organization or personnel to conduct a comprehensive investigation and systematic review of the intellectual property rights of the target company based on specific commercial needs, and provide investment for the entrusting party or expected investment. Non-litigation legal service activities that provide the target company with intellectual property information that may affect the expected business plan or other key factors, and ultimately form a professional summary report.

1.2 The significance of intellectual property due diligence

1.2.1 Solving the problem of information asymmetry , to obtain a comprehensive and systematic factual basis, so as to help make an objective and scientific assessment of the accurate value of the target company, facilitate business negotiations and facilitate the conclusion of transactions.

1.2.2 Discovering value and revealing risks

The entrusting party can conduct comprehensive value mining and risk assessment of the target company's intellectual property assets based on the results and reports of intellectual property due diligence, so as to better understand the actual value of the target company's intellectual property, And it is helpful to discover the potential legal risks that may hinder future commercial activities or transactions and the possible hidden costs, so as to avoid the increase of business plan or transaction risks and costs.

1.2.3 Adjust and improve the commercial plan Adjustment and improvement of business plan and transaction structure.

1.3 Purpose of intellectual property due diligence

From a macro perspective, the purpose of intellectual property due diligence is basically the same, there are two main ones, one is to sort out the intellectual property status of the target company, including the content of rights, ownership of rights, source of rights, and rights The second is to analyze the risks of the target company's intellectual property rights, including implementation risks, transaction risks, and management risks.

From a micro perspective, the purpose of intellectual property due diligence will vary with the business needs of the client. There are various business needs for conducting due diligence, and different target settings may affect the preparation of due diligence. and analysis focus. For example, if the purpose of the entrusting party's business plan is to obtain the technical employees and technical secrets of the target company, the intellectual property due diligence target setting should focus on the investigation of the employee's situation, and should investigate the target company's service invention achievements, technical personnel's Proportion and incentive methods, whereabouts of technical personnel after the commercial plan or transaction, etc.; if the reason for the entrusting party to conduct due diligence is to obtain the well-known or emerging brand of the target company, the objectives and content of intellectual property due diligence should be based on the objectives Whether the company's brand has been granted full rights protection is determined. Therefore, intellectual property due diligence personnel should fully communicate with the client to understand its expectations and objectives, so as to formulate scientific, reasonable and practical intellectual property due diligence objectives that are consistent with their business plans or transactions.

1.4 Basic principles of intellectual property due diligence Inconsistent, attempts to influence the judgment of the entrusting party.When accepting the entrustment of the entrusting party to carry out intellectual property due diligence on the target company, the entrusted party shall follow the principle of reasonableness and prudence, always maintain a prudent and cautious attitude, be diligent and responsible, and make oral statements and documents for any materials, information and relevant personnel. With reasonable skepticism, carefully check and verify whether there are major differences or inconsistencies between the information obtained and the actual situation, and avoid ignoring potential risks due to excessive trust in the target company, which affects the authenticity of the due diligence results.

1.4.2 Confidentiality principle

In order to ensure the accuracy of intellectual property due diligence results, the trustee often needs the target company to disclose a large amount of information to it when conducting intellectual property due diligence, many of which involve the target company's operating secrets and technical secrets. , once the leakage will have a significant impact on its business activities. In order to reduce the concerns of the target company and reduce the obstruction of intellectual property due diligence, the entrusted party should always abide by the principle of confidentiality when conducting due diligence, and the information and documents obtained from the entrusting party, the target company and other relevant subjects due to due diligence, The relevant information and other content that you have learned must abide by the confidentiality obligation to prevent the leakage of information.

1.4.3 Principles of professionalism

Intellectual property itself is a professional field that integrates knowledge of law, technology, management, economy, etc. Therefore, intellectual property due diligence requires very high professionalism, requiring investigators to make full use of their own work experience , professional ability, professional sense of smell, etc. to scientifically and objectively judge the intellectual property situation of the target company. Therefore, the intellectual property due diligence team members should not only have a deep understanding of professional knowledge, but also select compound talents with inter-professional background as much as possible, rationally divide labor, complement each other's advantages, and strive to make informed decisions on the target company's intellectual property status and risks. Accurate scientific investigation.

1.4.4 Principle of Objectivity

The entrusted party generally conducts intellectual property due diligence on the target company based on the entrustment of the entrusting party, but this does not mean that the entrusted party is subject to the position of the entrusting party or the target company when conducting intellectual property due diligence. and requests to make false or unrealistic due diligence findings. The trustee shall adhere to the principle of objectivity in due diligence, take facts as the basis, conduct investigation and judgment in strict accordance with the provisions of relevant laws and regulations, and issue corresponding legal opinions, and shall not arbitrarily guess or make judgments without sufficient evidence.

1.5 Methods of intellectual property due diligence

1.5.1 Review of documents

Intellectual property due diligence often involves a large number of documents, and review and audit of documents is one of the most commonly used methods in due diligence. After obtaining the corresponding documents, the entrusted party should carefully check and compare the relevant documents to ensure the authenticity, integrity and authority of the documents, and conduct in-depth analysis of the documents to fully explore the real information hidden behind the documents. . Generally speaking, the documents mainly come from the following sources:

1, provided by the entrusting party or the target company voluntarily. In order to complete due diligence, the target company usually provides relevant intellectual property information on its own initiative or at the request of the entrusted party, such as intellectual property ownership certificates, intellectual property-related agreements, etc. The entrusting party should also disclose the relevant information to the entrusting party if it is aware of it.

2. Obtain publicly disclosed intellectual property information related to the target company through third-party channels such as public media and the Internet. For example, inquire about the legal status of intellectual property on the official intellectual property website and professional database, inquire about the litigation situation of intellectual property on the relevant court website, or learn about the latest operating trends of the target company's intellectual property through media reports, etc.

1.5.2 Interview

For some information or problems that are difficult to obtain from written materials, the trustee can obtain information in the form of interviews. The entrusted party should pay attention not to trust the statements or explanations made by the interviewees during the interview, and to verify the interview contents of each interviewee with each other and with other materials, and require the provision of supporting materials to exclude false statements. To ensure the authenticity of the interview content.

1. The content of the interview should not be the same or generalized. Instead, targeted interview content should be designed for interviewees at different levels and positions. At the same time, attention should be paid to designing questions that can confirm each other in the interview content of different objects.

2. Communicate face-to-face with relevant persons in charge of various levels and departments within the target company and employees in specific positions, and conduct interviews on certain specific issues to obtain a more comprehensive and in-depth understanding of the target company. At the same time, interviews can also be conducted with relevant customers, partners and even competitors of the target company when necessary.

1.5.3 Visit

In order to verify the integrity of the target company and the authenticity and credibility of the information provided by the trustee, the trustee can visit the industry association or government department where the target company is located, and learn about the current situation, development trend and goals of the industry by The company's actual competitiveness in the industry, the implementation and application of the target company's intellectual property rights in the industry, etc., to understand the actual value of the target company's intellectual property rights from the side.

1.5.4 On-site field investigation

On-site field investigation means that the entrusted party obtains an intuitive understanding of the target enterprise through on-site inspection and investigation of the R&D, production, sales and other links of the target enterprise. A memorandum should be prepared for reference after the on-site investigation. For target companies with different orientations, the location of their on-site field investigations should be focused.For example, for a research-oriented target company, investigators can focus on visiting its technology R&D department to learn about the technology R&D situation; a brand-oriented target company can focus on visiting its product sales site to understand the brand's competition in the market power, customer recognition and dependence on the brand, etc.

1.5.5 Correspondence

Correspondence means that the target company cannot submit the original or relevant materials for verification, or the relevant issues are important and it is necessary to ensure the authenticity, and the specific situation can be verified by sending a letter to the relevant unit for verification. A due diligence method.

At the same time, when the relevant information cannot be collected or the real situation cannot be fully understood for some issues, in order to reduce the risk of errors in due diligence, the target company can be required to submit all the materials and documents provided by the target company. Significant omission of declaration or letter of guarantee.

1.5.6 Non-public investigation

When necessary, the entrusted party may also adopt non-public investigation methods to obtain information about the target company's intellectual property rights without the target company's knowledge, such as by contacting the target company's affiliates, competition Opponents and business partners can obtain the required relevant information within the legal scope by asking people in the industry about the target company's situation, etc., and make a memorandum for future reference, so as to reduce the risk of being deceived by the target company's false information.

1.6 The scope of intellectual property due diligence

Different types of intellectual property require different contents to be investigated. The entrusted party can refer to the following general contents of intellectual property due diligence to carry out investigation work, and then conduct specific investigations based on the actual situation and rights characteristics investigation.

1.6.1 Ownership status

The target company can acquire intellectual property rights or obtain intellectual property related rights and interests through original acquisition, subsequent acquisition, licensing, etc.

1. When the target company obtains the copyright of the work through independent creation, independent research and development of related technologies and improvement plans, etc., and applies for a patent to obtain the patent right, or obtains the trademark right through the independent design and the application for the exclusive right to register the industrial and commercial logo Under such circumstances, the trustee shall conduct a detailed review of the ownership of the target company’s intellectual property, including:

(1) the registration status on the intellectual property right certificate; Involving work/invention, commissioned work/invention, cooperative work/invention, whether there is a co-owner, etc;

2. When the target company acquires intellectual property rights through transfer, etc., it needs to pay attention to review:

(1) Whether the transfer contract signed between the intellectual property transferor and the transferee is true and legal;

(2) Intellectual property transfer procedures Whether it is legal and complete, and whether the transfer has been registered;

(3) whether the transferred intellectual property is valid;

(4) whether there is a situation in which the transfer of rights is prohibited in the intellectual property;

(5) whether the intellectual property has been licensed to others , in what way to allow others to use it, etc.

3. When the target company obtains the right to use intellectual property through licensing or licenses its intellectual property to others, it is necessary to pay attention to the following when conducting due diligence:

(1) The intellectual property is licensed or licensed Which one of the exclusive license, exclusive license and general license is used to achieve;

(2) How is the scope of intellectual property license or licensed use agreed, including geographical scope, scope of goods or services, scope of authority, etc.;

(3) Whether the intellectual property license allows sublicensing or sub-licensing;

(4) the term of use of the licensed or licensed intellectual property;

(5) whether the licensed or licensed intellectual property has expired or is about to expire;

(6) License fee for intellectual property rights;

(7) Whether the intellectual property license implementation contract has been registered with the relevant department;

(8) Whether there is any change in the intellectual property license contract that may be caused by changes in the target company and other reasons. Termination terms, or the existence of terms that may have a significant impact on the expected commercial plan or transaction value, etc.

1.6.2 Legal status

's review of the legal status of intellectual property mainly includes:

(1) relevant information on the application, announcement, authorization, and invalidation of intellectual property rights;

(2) the valid status of intellectual property rights, the remaining protection period , payment status.

For trademarks or patents, in order to expand the scope of protection, the target company may also apply for a series of trademarks or patents. At this time, it is also necessary to review the relevant information of the associated rights to accurately evaluate the status of the rights.

1.6.3 Rights content

Different intellectual property rights content is different:

1, copyright content includes publication, modification, signature, etc. personal rights and reproduction, distribution, rental, performance, broadcasting, adaptation, information network dissemination and other property rights;

2, patent rights include manufacturing, use, sales, promises to sell , import, etc.;

3, trademark rights include exclusive use rights, prohibition rights, license rights and other content.

When examining the intellectual property rights of the target company, the entrusted party should not only examine its actual control over the intellectual property rights, but also examine the rights content of its intellectual property rights, especially when the reason for the entrusting party to carry out intellectual property due diligence is to use the target company In the case of intellectual property rights, the entrusted party should focus on examining whether the content of its rights meets the business needs of the entrusting party, such as whether the scope of goods or services approved and registered by the target company’s trademark covers the scope of the entrusting party’s business activities.

1.6.4 Legal risk

The legal risk of intellectual property includes investigation of general litigation, litigation risk analysis and legal risk analysis when no litigation occurs.

1. Investigation of litigation situation: Investigate the litigation situation of the target company, understand the situation and progress of the case, and report the litigation risk according to the analysis opinions of the attorney and the target company. Does the operation have an impact and to what extent.

2. Litigation risk analysis: under the special request of the entrusting party, according to the stipulations of the entrustment contract , further analyze the litigation of the target company, and analyze the risks of the target company in the litigation based on the evidence of the case. Confirm the analysis opinions of the target company and its attorneys, and report truthfully.

3. Risk analysis of not involved in litigation: If the target company is not involved in litigation, if the entrusting party is more concerned about whether there are legal risks in its key intellectual property content, whether the target company will become the accused infringer, the intellectual property rights it enjoys Whether it will be claimed by others has an important impact on the implementation of the entrusting party's expected business plan or transaction. Then, according to the agreement of the entrustment contract, it is necessary to conduct a more in-depth investigation and analysis on whether the target company has the risk of ownership or infringement. Specifically, we can start from the following:

(1) Whether the intellectual property rights such as patents and copyrights enjoyed by the target company may be claimed by others, such as whether there is a competition restriction between the employed employees and the previous employer or the use of others’ trade secrets , technical secrets, etc; There is a conflict between the rights or the legal rights of others, such as whether there will be a conflict between the target company's trademark and others' trade names and domain names;

(4) Whether the target company's intellectual property rights may be revoked or invalid, such as trademarks, domain names Whether it is invalid or revoked due to squatting or other reasons, the patent is invalid because it does not meet the legal requirements for granting patent rights, etc.; How high is the possibility of property rights, what is the risk of infringement, what is the amount of compensation for infringement, whether there is a plan to avoid infringement, etc.

1.7 Specific content of intellectual property due diligence

Intellectual property covers a wide range of content, including but not limited to: patents, trademarks, copyrights, trade secrets, know-how, network domain names related to enterprises/commodities , original Origin name protection, integrated circuit layout design exclusive rights , new plant variety rights and other rights related to intellectual property rights. However, general intellectual property due diligence is mainly aimed at: patents, trademarks, copyrights, trade secrets, etc.

1.7.1 Copyright due diligence

Copyright due diligence mainly combines relevant materials and information, and conducts due diligence on the following specific content in terms of copyright ownership, legal status, operation, litigation and legal risks enjoyed by the target company :

1. List of copyrighted works of the target company, which should include the certificate number, type of work, author, source of rights, attribution of rights, and restrictions on rights.

2, the completion date of each work of the target company, the date of publication, the remaining rights period, and whether the copyright registration has been handled .

3. If the target company has handled the copyright registration, it will mainly check the copyright registration certificate, verify it in combination with the website of the National Copyright Registration Center, and verify its copyright ownership through interviews and other methods.

4. If the target company has not handled the copyright registration, but claims to have the copyright of the work, it needs to check the relevant agreement, work creation manuscript, software code and related certification documents:

(1) If the target company obtains the copyright by hosting the creation, it needs to check the creation The draft, the minutes and resolutions of the meeting presided over the creation, the time certificate for the completion of the creation, the certificate for the first publication, etc. shall be reviewed; Content review;

(3) If the target company obtains copyright through co-creation with others, it needs to review the cooperation agreement, rights ownership agreement, etc.;

(4) If the target company obtains copyright through personal job creation, it needs to review the job title Review the work ownership agreement, the company's internal job creation incentive measures, etc.;

(5) If the target company obtains the copyright through the transfer, the copyright transfer agreement, the transfer fee payment certificate, the copyright registration change certificate and other contents should be reviewed; If

(6) involves international copyright, the author, the time of completion, the time of first publication, and whether the country is a member of the Berne Convention must be reviewed.

5. If the target company obtains the right to use the copyright by means of a license, the copyright ownership certificate, the copyright license using the protocol, the license fee payment certificate, the scope and limitation of the licensed use, the license type and Review the terms of use and the remaining period.

6. If the target company invests the copyright as a price, it is necessary to review the conditions of the investment object, the relationship between the investment object and the target company, and the reasonableness of the copyright price in the investment agreement.

7. If the target company licenses or sublicenses the copyright to others, it is necessary to review the license agreement, license term, license type, license scope and restrictions, and license fee payment certificate.

8. If the target company pledges the copyright, it is necessary to review the copyright pledge agreement, pledge purpose, duration and copyright pledge register.

9, the litigation and arbitration of the target company related to copyright or copyright agreement.

10, the non-disclosure agreement between the target company and the core R&D creators, the content stipulated in the non-compete agreement, and the distribution of non-compete compensation.

11. The target company's internal rules and regulations for copyright management and protection, as well as relevant confidentiality measures for core copyrights.

12. The work history of the core R&D and creative personnel of the target company and the labor contract , the non-disclosure agreement, the content of the non-compete agreement and the distribution of non-compete compensation.

13. The specific content of each work of the target company, whether there is a risk of infringing others' prior copyrights (including adjacent rights ) or other prior rights such as the right to name and portrait, or the risk of unfair competition.

The aforementioned items 10-13 depend on the specific needs of the project and the service content agreed with the client, whether due diligence is required.

1.7.2 Trademark due diligence

Trademark due diligence mainly combines relevant materials and information, aiming at the registration application, trademark ownership status, legal status, operation status, litigation situation and legal risks of the registered trademark of the target company. We will conduct due diligence on the following specific content:

1, list of target company’s trademarks, which should include registration type, trademark number, trademark style, application date, authorization date, renewal status, content of goods or services approved for registration, transfer status, Licensing, etc.

2. If the target company's trademark has been approved for registration, it is necessary to notify each trademark certificate, change, renewal, etc. of the registration category, trademark number, trademark style, application date, authorization date, renewal status, and approved registered goods or services. Carry out verification, and verify the trademark situation in combination with China Trademark Network , etc.

3. If the target company's trademark has not been approved for registration, then:

(1) If the target company's trademark has been submitted for registration but has not been approved for registration, the notice of acceptance of the trademark registration application, the payment certificate for the registration application fee, and the official statement during the application process are required. Approval documents and other contents shall be reviewed in combination with China Trademark Network. , the actual use of the trademark, the well-known situation, etc.

4. If the target company applies for registration of an international trademark, it needs to review the international trademark ownership certificate, application documents, registration application category, and legal provisions of the application country for trademark registration application.

5. If the target company obtains trademark application rights or trademark rights through entrusted design or cooperative design, it is necessary to review the entrustment agreement, cooperation agreement and the content of the ownership of rights.

6. If the target company obtains the trademark application right or trademark right through transfer, it needs to review the transfer agreement, transfer registration certificate, trademark change certificate, transfer fee payment certificate, etc.

7. If the target company obtains the right to use the copyright by means of license, it needs to agree on the trademark ownership certificate, license agreement, license fee payment certificate, the scope and restrictions of the licensed use, the type of license and the term of use and the remaining period, the registration certificate of the license contract, the agreement on the common use of the trademark, etc.

8. If the target company invests the trademark rights as a price, it is necessary to review the conditions of the investment object, the relationship between the investment object and the target company, and the reasonableness of the price of the trademark right in the investment agreement.

9. If the target company licenses or sublicenses the trademark rights to others, it needs to review the license agreement, license term, license type, license scope and restrictions, license fee payment certificate, and contract filing status.

10. If the target company pledges the trademark right, it needs to review the copyright pledge agreement, pledge purpose, time limit, and trademark pledge register.

11. The litigation and arbitration of the target company related to trademark rights or trademark rights agreements.

12, whether the target company's trademark is still distinctive, whether there is a risk of being weakened or a generic name called an approved registration category, etc.

13. Review whether the target company has the risk of revoking its registered trademark if it is not used for 3 consecutive years.

14. Examining whether there is a risk of infringing the lawful prior rights of others for the trademarks that have been used by the target company but have not been approved for registration.

The aforementioned items 12-14 depend on the specific needs of the project and the service content agreed with the entrusting party, whether due diligence is required.

1.7.3 Patent due diligence

Patent due diligence mainly combines relevant materials and information to review the target company's relevant patent application authorization, patent ownership status, legal status, operation, litigation and legal risks. Carry out due diligence on the following specific content:

1, list of patents of the target company, the content should include the type, name, application number, application date, publication (吿) number, public (吿) date, authorization date, and validity period of the patent and patent application. , legal status, assignment, licensing, etc.

2. The target company has authorized patents, and it is necessary to review the patent certificate , the copy of the patent register, the authorized text, the validity period, and the annual fee payment certificate.

3. For patents that have been submitted by the target company but have not yet been authorized, it is necessary to review the official documents such as the receipt of application documents, the notice of acceptance of patent application, the notice of entry into substantive examination, and the notice of examination opinion, as well as payment vouchers.

4. If the target company obtains the patent application right or patent right through its own research and development, it is necessary to investigate the sources of materials and technologies used in the research and development, and examine the content of the patent right certificate and technical research and development record documents.

5. If the target company obtains the patent application right or patent right through entrusted development or cooperative development, it is necessary to review the entrusted development agreement, cooperative development agreement, relevant clauses or agreements on the ownership of rights, etc.

6. If the target company obtains a patent right through a personal service invention, it is necessary to review the service invention ownership agreement, the work experience of the inventor or designer, and the company's internal service invention management regulations.

7. If the target company obtains the patent application right or patent right through transfer, it is necessary to review the transfer agreement, transfer registration certificate, patent bibliographic change certificate, change announcement, and transfer fee payment certificate.

8. If the target company obtains the right to use the patent by means of license, it needs to verify the patent ownership certificate, license agreement, license contract record registration certificate, license fee payment certificate, license scope, license type and Review the terms of use, etc.

9. If the target company invests the patent application rights or patent rights as a price, it is necessary to review the patent ownership certificate, the patent right evaluation report , and the investment agreement.

10. If the target company licenses or sub-licenses the patent rights to others, it needs to provide proof of patent ownership, license agreement, license payment certificate, license period, license type, license scope, contract record, etc. content is reviewed.

11. If the target company pledges the patent right, it needs to examine the patent ownership certificate, pledge agreement, patent pledge registration certificate, payment of annual fee, etc.

12. The litigation and arbitration of the target company related to patent rights or patent rights agreements.

13. The non-disclosure agreement between the target company and the core R&D personnel, the content of the non-compete agreement and the distribution of non-compete compensation.

14, the internal rules and regulations of the target company's patent management and protection, and the relevant confidentiality measures for the core technology in the process of research and development.

15. The work history of the core R&D personnel of the target company and the content stipulated in the labor contract, non-disclosure agreement, non-compete agreement and the payment of non-compete compensation with their original units.

16. The stability of the target company's patents, including but not limited to whether the granted patent is subject to reexamination or invalidation procedures, whether the patent (application) belongs to common knowledge and free technology in the technical field, and whether it may be previously disclosed.

17. The target company's competitors' products and patents, and analyze whether the competitor's products have the possibility of infringing the target company's patent rights, or whether the target company's products (especially core products) have the possibility of infringing the competitors' patent rights.

The above-mentioned items 13-17 depend on the specific needs of the project and the service content agreed with the client, whether due diligence is required.

1.7.4 Due Diligence of Trade Secrets

Trade secrets include business secrets and technical secrets. Due diligence should be combined with relevant materials and information to conduct investigations including but not limited to the following:

1, the target company's trade secret ownership certification materials, such as Records of technical information or business information, etc.

2. The expression and usage of the target company's trade secrets.

3. The implementation of the company's internal trade secret management system and the implementation of trade secret confidentiality measures, such as whether it has signed confidentiality agreements with employees, non-compete agreements Scope of secrecy, confidentiality obligations, etc.

4. The target company's labor contract involving trade secret R&D personnel, the agreement and incentive measures for job creation or job invention, etc.

5. The work history of the core R&D personnel of the target company and the contents stipulated in the labor contract, non-disclosure agreement, non-compete agreement and the payment of non-compete compensation with their original units.

6. If the target company licenses its proprietary technology to the outside world, it needs to review the license agreement, license term, license type, license scope and restrictions, license fee payment certificate, etc.

1.7.5 Domain name due diligence

In view of the fact that most companies have their own websites, and domain names are the basis for holding websites, and disputes over domain names and trademark rights are frequent, it is necessary to conduct due diligence on domain names to detect and prevent risk. The

domain name due diligence should be combined with relevant materials and information, including but not limited to the following:

1, the target company domain name and the list of corresponding websites, which should include the domain name registration time, website opening time, website name, website filing subject, filing Information about the relationship between the subject and the target company.

2, target company domain name registration application documents, domain name registration certificate, record information and other ownership certification materials.

3. Time, protection period, remaining period and renewal of the target company's domain name application for registration.

4. The use and transfer of the target company's domain name, including proof of use, transfer agreement, proof of rights change, etc.

5. Litigation, arbitration, etc. of the target company related to the domain name or the domain name agreement.

6. Whether the domain name of the target company has been squatted.

7. Whether the target company's domain name conflicts with other people's legal prior rights such as prior trademark rights, well-known service unique names, etc., and whether there are reasonable reasons for using such domain names and proof materials, etc.

The aforementioned items 6-7 depend on the specific needs of the project and the service content agreed with the client, whether due diligence is required.

Chapter II Operational Process of Intellectual Property Due Diligence

2.1 Operational Process Overview

The necessity and importance of intellectual property due diligence are becoming more and more prominent, and the breadth and depth of due diligence are gradually expanding. Therefore, the knowledge corresponding to specific projects The scope of title due diligence varies.

All China Lawyers Association

Operation Guidelines for Intellectual Property Due Diligence

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Contents

Chapter 1General Provisions

.1 The Concept of Intellectual Property Due Diligence

.2 The Meaning of Intellectual Property Due Diligence

.3 The Purpose of Intellectual Property Due Diligence

.3 The Purpose of Intellectual Property Due Diligence32

3 Basic Principles of Intellectual Property Due Diligence

.5 Methods of Intellectual Property Due Diligence

.6 Scope of Intellectual Property Due Diligence

.7 Specific Contents of Intellectual Property Due Diligence

Chapter II Operational Process of Intellectual Property Due Diligence

2.1 Operational Process概述

2.2 确定委托

2.3 立项组队

2.4 制定计划

2.5 前期调查

2.6 资料搜集

2.7 访谈走访

2.8 信息核查

2.9 与第三方机构沟通交流

2.10 报告Write

2.11 Feedback and revision

2.12 Report completed

2.13 Documents for reference

Appendix 1: IP Due Diligence Flowchart

Appendix II: IP Due Diligence Report Sample

Appendix III: IP Due Diligence Archive Checklist

Appendix IV: Common Websites for IP Due Diligence

Appendix V: IP Due Diligence Summary of common regulations for investigationIt cannot be used as a basis for judging whether lawyers are practicing due diligence and compliance, nor can it be used as a basis for investigating lawyers' responsibilities.

1.1 The concept of intellectual property due diligence

Intellectual property due diligence refers to entrusting a third-party professional organization or personnel to conduct a comprehensive investigation and systematic review of the intellectual property rights of the target company based on specific commercial needs, and provide investment for the entrusting party or expected investment. Non-litigation legal service activities that provide the target company with intellectual property information that may affect the expected business plan or other key factors, and ultimately form a professional summary report.

1.2 The significance of intellectual property due diligence

1.2.1 Solving the problem of information asymmetry , to obtain a comprehensive and systematic factual basis, so as to help make an objective and scientific assessment of the accurate value of the target company, facilitate business negotiations and facilitate the conclusion of transactions.

1.2.2 Discovering value and revealing risks

The entrusting party can conduct comprehensive value mining and risk assessment of the target company's intellectual property assets based on the results and reports of intellectual property due diligence, so as to better understand the actual value of the target company's intellectual property, And it is helpful to discover the potential legal risks that may hinder future commercial activities or transactions and the possible hidden costs, so as to avoid the increase of business plan or transaction risks and costs.

1.2.3 Adjust and improve the commercial plan Adjustment and improvement of business plan and transaction structure.

1.3 Purpose of intellectual property due diligence

From a macro perspective,The purpose of intellectual property due diligence is basically the same. There are two main reasons. One is to sort out the intellectual property status of the target company, including the content of rights, ownership of rights, source of rights, burden of rights, and value of rights, etc.; the second is to analyze the existence of intellectual property rights of the target company. Risk, including implementation risk, transaction risk, management risk, etc.

From a micro perspective, the purpose of intellectual property due diligence will vary with the business needs of the client. There are various business needs for conducting due diligence, and different target settings may affect the preparation of due diligence. and analysis focus. For example, if the purpose of the entrusting party's business plan is to obtain the technical employees and technical secrets of the target company, the intellectual property due diligence target setting should focus on the investigation of the employee's situation, and should investigate the target company's service invention achievements, technical personnel's Proportion and incentive methods, whereabouts of technical personnel after the commercial plan or transaction, etc.; if the reason for the entrusting party to conduct due diligence is to obtain the well-known or emerging brand of the target company, the objectives and content of intellectual property due diligence should be based on the objectives Whether the company's brand has been granted full rights protection is determined. Therefore, intellectual property due diligence personnel should fully communicate with the client to understand its expectations and objectives, so as to formulate scientific, reasonable and practical intellectual property due diligence objectives that are consistent with their business plans or transactions.

1.4 Basic principles of intellectual property due diligence Inconsistent, attempts to influence the judgment of the entrusting party. When accepting the entrustment of the entrusting party to carry out intellectual property due diligence on the target company, the entrusted party shall follow the principle of reasonableness and prudence, always maintain a prudent and cautious attitude, and be diligent and responsible.Have reasonable doubts about any data, information and oral statements made by relevant personnel and documents provided, carefully check and verify whether there are major differences or inconsistencies between the obtained information and the actual situation, and avoid excessive trust in the target company. Ignoring potential risks and affecting the authenticity of due diligence findings.

1.4.2 Confidentiality principle

In order to ensure the accuracy of intellectual property due diligence results, the trustee often needs the target company to disclose a large amount of information to it when conducting intellectual property due diligence, many of which involve the target company's operating secrets and technical secrets. , once the leakage will have a significant impact on its business activities. In order to reduce the concerns of the target company and reduce the obstruction of intellectual property due diligence, the entrusted party should always abide by the principle of confidentiality when conducting due diligence, and the information and documents obtained from the entrusting party, the target company and other relevant subjects due to due diligence, The relevant information and other content that you have learned must abide by the confidentiality obligation to prevent the leakage of information.

1.4.3 Principles of professionalism

Intellectual property itself is a professional field that integrates knowledge of law, technology, management, economy, etc. Therefore, intellectual property due diligence requires very high professionalism, requiring investigators to make full use of their own work experience , professional ability, professional sense of smell, etc. to scientifically and objectively judge the intellectual property situation of the target company. Therefore, the intellectual property due diligence team members should not only have a deep understanding of professional knowledge, but also select compound talents with inter-professional background as much as possible, rationally divide labor, complement each other's advantages, and strive to make informed decisions on the target company's intellectual property status and risks. Accurate scientific investigation.

1.4.4 Principle of Objectivity

The trustee generally conducts intellectual property due diligence on the target company based on the trustee's entrustment.However, this does not mean that the entrusted party should be subject to the position and requirements of the entrusting party or the target company when conducting intellectual property due diligence and make false or unrealistic due diligence results. The trustee shall adhere to the principle of objectivity in due diligence, take facts as the basis, conduct investigation and judgment in strict accordance with the provisions of relevant laws and regulations, and issue corresponding legal opinions, and shall not arbitrarily guess or make judgments without sufficient evidence.

1.5 Methods of intellectual property due diligence

1.5.1 Review of documents

Intellectual property due diligence often involves a large number of documents, and review and audit of documents is one of the most commonly used methods in due diligence. After obtaining the corresponding documents, the entrusted party should carefully check and compare the relevant documents to ensure the authenticity, integrity and authority of the documents, and conduct in-depth analysis of the documents to fully explore the real information hidden behind the documents. . Generally speaking, the documents mainly come from the following sources:

1, provided by the entrusting party or the target company voluntarily. In order to complete due diligence, the target company usually provides relevant intellectual property information on its own initiative or at the request of the entrusted party, such as intellectual property ownership certificates, intellectual property-related agreements, etc. The entrusting party should also disclose the relevant information to the entrusting party if it is aware of it.

2. Obtain publicly disclosed intellectual property information related to the target company through third-party channels such as public media and the Internet. For example, inquire about the legal status of intellectual property on the official intellectual property website and professional database, inquire about the litigation situation of intellectual property on the relevant court website, or learn about the latest operating trends of the target company's intellectual property through media reports, etc.

1.5.2 Interview

For some information or problems that are difficult to obtain from written materials, the trustee can obtain information in the form of interviews. The trustee should pay attention,The statements or explanations made by the interviewees in the interviews should not be trusted. The interview contents of the interviewees should be verified with each other and with other materials, and proof materials should be provided, and false statements should be excluded to ensure the authenticity of the interview contents. believable.

1. The content of the interview should not be the same or generalized. Instead, targeted interview content should be designed for interviewees at different levels and positions. At the same time, attention should be paid to designing questions that can confirm each other in the interview content of different objects.

2. Communicate face-to-face with relevant persons in charge of various levels and departments within the target company and employees in specific positions, and conduct interviews on certain specific issues to obtain a more comprehensive and in-depth understanding of the target company. At the same time, interviews can also be conducted with relevant customers, partners and even competitors of the target company when necessary.

1.5.3 Visit

In order to verify the integrity of the target company and the authenticity and credibility of the information provided by the trustee, the trustee can visit the industry association or government department where the target company is located, and learn about the current situation, development trend and goals of the industry by The company's actual competitiveness in the industry, the implementation and application of the target company's intellectual property rights in the industry, etc., to understand the actual value of the target company's intellectual property rights from the side.

1.5.4 On-site field investigation

On-site field investigation means that the entrusted party obtains an intuitive understanding of the target enterprise through on-site inspection and investigation of the R&D, production, sales and other links of the target enterprise. A memorandum should be prepared for reference after the on-site investigation. For target companies with different orientations, the location of their on-site field investigations should be focused. For example, for a research-oriented target company, investigators can focus on visiting its technology R&D department to learn about the technology R&D situation; a brand-oriented target company can focus on visiting its product sales site,Understand the competitiveness of the brand in the market, customer recognition and dependence on the brand, etc.

1.5.5 Correspondence

Correspondence means that the target company cannot submit the original or relevant materials for verification, or the relevant issues are important and it is necessary to ensure the authenticity, and the specific situation can be verified by sending a letter to the relevant unit for verification. A due diligence method.

At the same time, when the relevant information cannot be collected or the real situation cannot be fully understood for some issues, in order to reduce the risk of errors in due diligence, the target company can be required to submit all the materials and documents provided by the target company. Significant omission of declaration or letter of guarantee.

1.5.6 Non-public investigation

When necessary, the entrusted party may also adopt non-public investigation methods to obtain information about the target company's intellectual property rights without the target company's knowledge, such as by contacting the target company's affiliates, competition Opponents and business partners can obtain the required relevant information within the legal scope by asking people in the industry about the target company's situation, etc., and make a memorandum for future reference, so as to reduce the risk of being deceived by the target company's false information.

1.6 Scope of intellectual property due diligence

Different types of intellectual property require different contents to be investigated. The entrusted party can refer to the following general contents of intellectual property due diligence to carry out investigation work.And then combined with the actual situation and rights characteristics to conduct specific investigations.

1.6.1 Ownership status

The target company can acquire intellectual property rights or obtain intellectual property related rights and interests through original acquisition, subsequent acquisition, licensing, etc.

1. When the target company obtains the copyright of the work through independent creation, independent research and development of related technologies and improvement plans, etc., and applies for a patent to obtain the patent right, or obtains the trademark right through the independent design and the application for the exclusive right to register the industrial and commercial logo Under such circumstances, the trustee shall conduct a detailed review of the ownership of the target company’s intellectual property, including:

(1) the registration status on the intellectual property right certificate; Involving work/invention, commissioned work/invention, cooperative work/invention, whether there is a co-owner, etc;

2. When the target company acquires intellectual property rights through transfer, etc., it needs to pay attention to review:

(1) Whether the transfer contract signed between the intellectual property transferor and the transferee is true and legal;

(2) Intellectual property transfer procedures Whether it is legal and complete, and whether the transfer has been registered;

(3) whether the transferred intellectual property is valid;

(4) whether there is a situation in which the transfer of rights is prohibited in the intellectual property;

(5) whether the intellectual property has been licensed to others , in what way to allow others to use it, etc.

3. When the target company obtains the right to use intellectual property through licensing or licenses its intellectual property to others,When conducting due diligence, you need to pay attention to review the following:

(1) intellectual property is licensed or licensed by which way of exclusive license, exclusive license, or general license;

(2) intellectual property license or license How the scope of use is agreed, including the geographical scope, the scope of goods or services, and the scope of authority; ;

(5) Whether the license or the licensed intellectual property has expired or is about to expire;

(6) The license fee of the intellectual property;

(7) Whether the intellectual property license implementation contract has been registered in the relevant department;

(8) Whether there are clauses in the intellectual property license contract that may cause its termination due to changes in the target company, or any clauses that may have a significant impact on the expected business plan or transaction value, etc.

1.6.2 Legal status

's review of the legal status of intellectual property mainly includes:

(1) relevant information on the application, announcement, authorization, and invalidation of intellectual property rights;

(2) the valid status of intellectual property rights, the remaining protection period , payment status.

For trademarks or patents, in order to expand the scope of protection, the target company may also apply for a series of trademarks or patents.for an accurate assessment of the status of entitlements.

1.6.3 Rights content

Different intellectual property rights content is different:

1, copyright content includes publication, modification, signature, etc. personal rights and reproduction, distribution, rental, performance, broadcasting, adaptation, information network dissemination and other property rights;

2, patent rights include manufacturing, use, sales, promises to sell , import, etc.;

3, trademark rights include exclusive use rights, prohibition rights, license rights and other content.

When examining the intellectual property rights of the target company, the entrusted party should not only examine its actual control over the intellectual property rights, but also examine the rights content of its intellectual property rights, especially when the reason for the entrusting party to carry out intellectual property due diligence is to use the target company In the case of intellectual property rights, the entrusted party should focus on examining whether the content of its rights meets the business needs of the entrusting party, such as whether the scope of goods or services approved and registered by the target company’s trademark covers the scope of the entrusting party’s business activities.

1.6.4 Legal risk

The legal risk of intellectual property includes investigation of general litigation, litigation risk analysis and legal risk analysis when no litigation occurs.

1. Investigation of litigation situation: Investigate the litigation situation of the target company, understand the situation and progress of the case, and report the litigation risk according to the analysis opinions of the attorney and the target company. Does the operation have an impact and to what extent.

2. Litigation risk analysis: under the special request of the entrusting party, according to the stipulations of the entrustment contract , further analyze the litigation of the target company, and analyze the risks of the target company in the litigation based on the evidence of the case. To confirm the analysis opinions of the target company and its attorneys,Report truthfully.

3. Risk analysis of not involved in litigation: If the target company is not involved in litigation, if the entrusting party is more concerned about whether there are legal risks in its key intellectual property content, whether the target company will become the accused infringer, the intellectual property rights it enjoys Whether it will be claimed by others has an important impact on the implementation of the entrusting party's expected business plan or transaction. Then, according to the agreement of the entrustment contract, it is necessary to conduct a more in-depth investigation and analysis on whether the target company has the risk of ownership or infringement. Specifically, we can start from the following:

(1) Whether the intellectual property rights such as patents and copyrights enjoyed by the target company may be claimed by others, such as whether there is a competition restriction between the employed employees and the previous employer or the use of others’ trade secrets , technical secrets, etc; There is a conflict between the rights or the legal rights of others, such as whether there will be a conflict between the target company's trademark and others' trade names and domain names;

(4) Whether the target company's intellectual property rights may be revoked or invalid, such as trademarks, domain names Whether it is invalid or revoked due to squatting or other reasons, the patent is invalid because it does not meet the legal requirements for granting patent rights, etc.; How high is the possibility of property rights, what is the risk of infringement, what is the amount of compensation for infringement, whether there is a plan to avoid infringement, etc.

1.7 Specific content of intellectual property due diligence

Intellectual property covers a wide range of content,Including but not limited to: patents, trademarks, copyrights, trade secrets, know-how, network domain names related to enterprises/commodities, protection of appellations of origin, integrated circuit layout design exclusive rights , new plant variety rights and other rights related to intellectual property. However, general intellectual property due diligence is mainly aimed at: patents, trademarks, copyrights, trade secrets, etc.

1.7.1 Copyright due diligence

Copyright due diligence mainly combines relevant materials and information, and conducts due diligence on the following specific content in terms of copyright ownership, legal status, operation, litigation and legal risks enjoyed by the target company :

1. List of copyrighted works of the target company, which should include the certificate number, type of work, author, source of rights, attribution of rights, and restrictions on rights.

2, the completion date of each work of the target company, the date of publication, the remaining rights period, and whether the copyright registration has been handled .

3. If the target company has handled the copyright registration, it will mainly check the copyright registration certificate, verify it in combination with the website of the National Copyright Registration Center, and verify its copyright ownership through interviews and other methods.

4. If the target company has not handled the copyright registration, but claims to have the copyright of the work, it needs to check the relevant agreement, work creation manuscript, software code and related certification documents:

(1) If the target company obtains the copyright by hosting the creation, it needs to check the creation The draft, the minutes and resolutions of the meeting presided over the creation, the time certificate for the completion of the creation, the certificate for the first publication, etc. shall be reviewed; Content review;

(3) If the target company obtains copyright by cooperating with others,It is necessary to review the cooperation agreement, the right attribution agreement, etc.;

(4) If the target company obtains the copyright through personal job creation, it is necessary to review the content of the job work ownership agreement and the company's internal job creation incentive measures;

( 5) If the target company obtains the copyright through the transfer, it needs to review the copyright transfer agreement, the transfer fee payment certificate, the copyright registration change certificate, etc.; The time of publication and whether the country is a member state of the Berne Convention shall be reviewed.

5. If the target company obtains the right to use the copyright by means of a license, the copyright ownership certificate, the copyright license using the protocol, the license fee payment certificate, the scope and limitation of the licensed use, the license type and Review the terms of use and the remaining period.

6. If the target company invests the copyright as a price, it is necessary to review the conditions of the investment object, the relationship between the investment object and the target company, and the reasonableness of the copyright price in the investment agreement.

7. If the target company licenses or sublicenses the copyright to others, it is necessary to review the license agreement, license term, license type, license scope and restrictions, and license fee payment certificate.

8. If the target company pledges the copyright,It is necessary to review the copyright pledge agreement, pledge purpose, duration, and copyright pledge register.

9, the litigation and arbitration of the target company related to copyright or copyright agreement.

10, the non-disclosure agreement between the target company and the core R&D creators, the content stipulated in the non-compete agreement, and the distribution of non-compete compensation.

11. The target company's internal rules and regulations for copyright management and protection, as well as relevant confidentiality measures for core copyrights.

12. The work history of the core R&D and creative personnel of the target company and the labor contract , the non-disclosure agreement, the content of the non-compete agreement and the distribution of non-compete compensation.

13. The specific content of each work of the target company, whether there is a risk of infringing others' prior copyrights (including adjacent rights ) or other prior rights such as the right to name and portrait, or the risk of unfair competition.

The aforementioned items 10-13 depend on the specific needs of the project and the service content agreed with the client, whether due diligence is required.

1.7.2 Trademark due diligence

Trademark due diligence mainly combines relevant materials and information, aiming at the registration application, trademark ownership status, legal status, operation status, litigation situation and legal risks of the registered trademark of the target company. We will conduct due diligence on the following specific content:

1, list of target company’s trademarks, which should include registration type, trademark number, trademark style, application date, authorization date, renewal status, content of goods or services approved for registration, transfer status, Licensing, etc.

2. If the target company's trademark has been approved for registration,It is necessary to check the registration category, trademark number, trademark style, application date, authorization date, renewal status, and the content of goods or services approved for registration for each trademark certificate and notification of changes and renewals. Check the trademark status.

3. If the target company's trademark has not been approved for registration, then:

(1) If the target company's trademark has been submitted for registration but has not been approved for registration, the notice of acceptance of the trademark registration application, the payment certificate for the registration application fee, and the official statement during the application process are required. Approval documents and other contents shall be reviewed in combination with China Trademark Network. , the actual use of the trademark, the well-known situation, etc.

4. If the target company applies for registration of an international trademark, it needs to review the international trademark ownership certificate, application documents, registration application category, and legal provisions of the application country for trademark registration application.

5. If the target company obtains trademark application rights or trademark rights through entrusted design or cooperative design, it is necessary to review the entrustment agreement, cooperation agreement and the content of the ownership of rights.

6. If the target company obtains the trademark application right or trademark right through transfer, it needs to review the transfer agreement, transfer registration certificate, trademark change certificate, transfer fee payment certificate, etc.

7. If the target company obtains the right to use the copyright by means of license, it needs to agree on the trademark ownership certificate, license agreement, license fee payment certificate, the scope and restrictions of the licensed use, the type of license and the term of use and the remaining period, the registration certificate of the license contract, the agreement on the common use of the trademark, etc.

8. If the target company invests the trademark rights as a price,It is necessary to review the situation of the investment object, the relationship between the investment object and the target company, and the reasonableness of the price of the trademark right in the investment agreement.

9. If the target company licenses or sublicenses the trademark rights to others, it needs to review the license agreement, license term, license type, license scope and restrictions, license fee payment certificate, and contract filing status.

10. If the target company pledges the trademark right, it needs to review the copyright pledge agreement, pledge purpose, time limit, and trademark pledge register.

11. The litigation and arbitration of the target company related to trademark rights or trademark rights agreements.

12, whether the target company's trademark is still distinctive, whether there is a risk of being weakened or a generic name called an approved registration category, etc.

13. Review whether the target company has the risk of revoking its registered trademark if it is not used for 3 consecutive years.

14. Examining whether there is a risk of infringing the lawful prior rights of others for the trademarks that have been used by the target company but have not been approved for registration.

The aforementioned items 12-14 depend on the specific needs of the project and the service content agreed with the entrusting party, whether due diligence is required.

1.7.3 Patent due diligence

Patent due diligence mainly combines relevant materials and information to review the target company's relevant patent application authorization, patent ownership status, legal status, operation, litigation and legal risks. Carry out due diligence on the following specific content:

1, list of patents of the target company, the content should include the type, name, application number, application date, publication (吿) number, public (吿) date, authorization date, and validity period of the patent and patent application. , legal status, assignment, licensing, etc.

2, the target company has authorized patents,The patent certificate , the copy of the patent register, the authorization text, the validity period, the annual fee payment certificate, etc. need to be examined.

3. For patents that have been submitted by the target company but have not yet been authorized, it is necessary to review the official documents such as the receipt of application documents, the notice of acceptance of patent application, the notice of entry into substantive examination, and the notice of examination opinion, as well as payment vouchers.

4. If the target company obtains the patent application right or patent right through its own research and development, it is necessary to investigate the sources of materials and technologies used in the research and development, and examine the content of the patent right certificate and technical research and development record documents.

5. If the target company obtains the patent application right or patent right through entrusted development or cooperative development, it is necessary to review the entrusted development agreement, cooperative development agreement, relevant clauses or agreements on the ownership of rights, etc.

6. If the target company obtains a patent right through a personal service invention, it is necessary to review the service invention ownership agreement, the work experience of the inventor or designer, and the company's internal service invention management regulations.

7. If the target company obtains the patent application right or patent right through transfer, it is necessary to review the transfer agreement, transfer registration certificate, patent bibliographic change certificate, change announcement, and transfer fee payment certificate.

8. If the target company obtains the right to use the patent by means of license, it needs to verify the patent ownership certificate, license agreement, license contract record registration certificate, license fee payment certificate, license scope, license type and Review the terms of use, etc.

9. If the target company invests the patent application rights or patent rights as a price, it is necessary to review the patent ownership certificate, the patent right evaluation report , and the investment agreement.

10. If the target company licenses or sublicenses the patent rights to others,It is necessary to review the patent ownership certificate, license agreement, license fee payment certificate, license period, license type, license scope, contract record and other contents.

11. If the target company pledges the patent right, it needs to examine the patent ownership certificate, pledge agreement, patent pledge registration certificate, payment of annual fee, etc.

12. The litigation and arbitration of the target company related to patent rights or patent rights agreements.

13. The non-disclosure agreement between the target company and the core R&D personnel, the content of the non-compete agreement and the distribution of non-compete compensation.

14, the internal rules and regulations of the target company's patent management and protection, and the relevant confidentiality measures for the core technology in the process of research and development.

15. The work history of the core R&D personnel of the target company and the content stipulated in the labor contract, non-disclosure agreement, non-compete agreement and the payment of non-compete compensation with their original units.

16. The stability of the target company's patents, including but not limited to whether the granted patent is subject to reexamination or invalidation procedures, whether the patent (application) belongs to common knowledge and free technology in the technical field, and whether it may be previously disclosed.

17. The target company's competitors' products and patents, and analyze whether the competitor's products have the possibility of infringing the target company's patent rights, or whether the target company's products (especially core products) have the possibility of infringing the competitors' patent rights.

The above-mentioned items 13-17 depend on the specific needs of the project and the service content agreed with the client, whether due diligence is required.

1.7.4 Due diligence on trade secrets

Trade secrets include business secrets and technical secrets.Investigate including but not limited to the following:

1, the target company's commercial secret ownership certification materials, such as technical information or business information formation records, etc.

2. The expression and usage of the target company's trade secrets.

3. The implementation of the company's internal trade secret management system and the implementation of trade secret confidentiality measures, such as whether it has signed confidentiality agreements with employees, non-compete agreements Scope of secrecy, confidentiality obligations, etc.

4. The target company's labor contract involving trade secret R&D personnel, the agreement and incentive measures for job creation or job invention, etc.

5. The work history of the core R&D personnel of the target company and the contents stipulated in the labor contract, non-disclosure agreement, non-compete agreement and the payment of non-compete compensation with their original units.

6. If the target company licenses its proprietary technology to the outside world, it needs to review the license agreement, license term, license type, license scope and restrictions, license fee payment certificate, etc.

1.7.5 Domain name due diligence

In view of the fact that most companies have their own websites, and domain names are the basis for holding websites, and disputes over domain names and trademark rights are frequent, it is necessary to conduct due diligence on domain names to detect and prevent risk.

domain name due diligence should be combined with relevant materials and information, including but not limited to the following:

1, target company domain name and list of corresponding websites,It should include the domain name registration time, website opening time, website name, website filing subject, and the relationship between the filing subject and the target company, etc.

2, target company domain name registration application documents, domain name registration certificate, record information and other ownership certification materials.

3. Time, protection period, remaining period and renewal of the target company's domain name application for registration.

4. The use and transfer of the target company's domain name, including proof of use, transfer agreement, proof of rights change, etc.

5. Litigation, arbitration, etc. of the target company related to the domain name or the domain name agreement.

6. Whether the domain name of the target company has been squatted.

7. Whether the target company's domain name conflicts with other people's legal prior rights such as prior trademark rights, well-known service unique names, etc., and whether there are reasonable reasons for using such domain names and proof materials, etc.

The aforementioned items 6-7 depend on the specific needs of the project and the service content agreed with the client, whether due diligence is required.

Chapter II Operational Process of Intellectual Property Due Diligence

2.1 Operational Process Overview

The necessity and importance of intellectual property due diligence are becoming more and more prominent, and the breadth and depth of due diligence are gradually expanding. Therefore, the knowledge corresponding to specific projects The scope of title due diligence varies. However, in general, intellectual property due diligence is generally carried out according to the following operating procedures:

2.1.1 Sending a demand: the entrusting party will solicit the entrusted party through targeted inquiry or open bidding due to the need for intellectual property due diligence in the relevant project;

2.1.2 Submit quotation: Whether it is in the form of directional inquiry or open bidding, interested intellectual property due diligence units should submit a written quotation or service plan to the entrusting party; actual needs,Select an intellectual property due diligence service unit according to the quotation, sign an entrustment contract, and determine the entrustment relationship and due diligence content;

2.1.4 Project establishment and team formation: The entrusting party and the entrusting party respectively set up the intellectual property due diligence project, and each selects the appropriate

2.1.5 Formulation of a plan: the entrusted party formulates a work plan and a list of due diligence contents according to the actual situation and time node of the project;

2.1.6 Preliminary investigation: the entrusted party conducts an investigation based on the preliminary information provided by the entrusting party and the Internet public channels. Pre-investigation of the due diligence objectives involved in the project;

2.1.7 Data collection: The entrusted party draws up a list of data based on the preliminary investigation and actual needs, and collects data through the methods provided by the consignor, by the entity under investigation, and by self-collection;

2. 1.8 Interviews and visits: Based on the actual needs of the project, the entrusted party makes an interview list for the actual controllers, shareholders, senior managers, and core technical personnel of the target unit, and obtains relevant information through interviews and visits;

2.1.9 Verification information: for the entrusting party, The information provided by the target unit and the content learned from the interviews require the relevant units and personnel to make real and legal commitments. At the same time, the trustee needs to verify the relevant information and materials through credible channels such as government departments and third-party agencies;

2. 1.10 Communicate with third-party institutions: During the process of intellectual property due diligence, under the organization of the entrusting party, it is also necessary to maintain good communication with third-party institutions such as appraisal agencies and accountants, such as the arrangement of entry, data collection, interview arrangements and even In the process of information verification and other processes, the parties shall communicate and exchange in a timely manner the parts that overlap or may have mutual influence;Based on this, draft and write intellectual property due diligence report;

2.1.12 Feedback and revision: make necessary adjustments and revisions according to the feedback from the entrusting party and related institutions on the draft of the intellectual property due diligence report;

2.1.13 Supplementary due diligence: in the benchmark If there is a change in the time node such as the day, the main intellectual property target changes, or it is really necessary, carry out supplementary intellectual property due diligence according to the actual needs of the project;

2.1.14 Completion of the report: combined with intellectual property due diligence (including supplementary due diligence) According to the results of the entrusting party, refer to the feedback from the entrusting party, make final adjustments, and complete the intellectual property due diligence report;

2.1.15 Archive for future reference: In accordance with legal regulations, contractual agreements and internal requirements of the unit, further check the working papers, due diligence process of intellectual property due diligence The report shall be archived for future reference.

2.2 Determining the entrustment of

With the increasing emphasis on intellectual property, the scope and degree of due diligence requirements for intellectual property will inevitably change accordingly. According to the different entrusting subjects, purposes, and investigation objectives of intellectual property due diligence, the content that needs to be paid attention to in the process of determining the entrusting relationship is also very different.

2.2.1 The entrusting subjects of intellectual property due diligence are diverse, and different subjects have different purposes and needs for due diligence. However, due to the particularity of intellectual property rights, when the entrusting entity issues the demand for intellectual property due diligence, its own content and direction of due diligence may not be accurate.

2.2.2 When the professional intellectual property due diligence team receives the due diligence request from the entrusting party, it shall conduct a conflict of interest search on the matters to be entrusted in advance; Due diligence project characteristics, fully communicate with the entrusting party to understand the purpose of its intellectual property due diligence,Determine its actual needs and lay the foundation for the subsequent formulation of service plans and quotations.

2.2.3 When formulating a service plan, the identity of the client and the characteristics of the project should be fully considered, and service content that meets the actual needs of due diligence should be formulated in a targeted manner. For example, for intellectual property due diligence in the process of listing for the final issue of legal opinions, when formulating service content, more attention should be paid to the comprehensive investigation of the target entity’s intellectual property ownership and litigation; When investors conduct due diligence on intellectual property rights in the investment process of target companies, they also need to focus on the stability of intellectual property rights and the investigation and analysis of infringement risks.

2.2.4 Before formulating a service plan, based on the project information provided by the entrusting party, conduct a preliminary search on the main business and intellectual property ownership of the investigation target through public channels such as the Internet, and predict the workload of due diligence, so as to better Targeted development of service content and service quotations.

2.2.5 In view of the professionalism and particularity of intellectual property rights, when formulating service plans, taking into account the characteristics of the entrusting party and the affordability of expenses, it is also possible to serve the entrusting party on the basis of meeting the basic requirements of intellectual property due diligence for the project. Provide a variety of solutions for basic service content and in-depth service content (such as intellectual property rights stability, infringement risk or conflict with others' prior rights, etc.), and clarify to the entrusting party that different service content can ultimately obtain different levels of information for The entrusting party chooses according to its actual situation.

2.2.6 Regardless of whether the entrusting party is in the form of directional inquiry or open tendering, the interested intellectual property due diligence team should submit a written quotation or service plan to the entrusting party. can be adjusted accordingly,However, it should at least include a brief analysis of the relevant project, the scope and content of the proposed due diligence, and the corresponding quotation for the corresponding service content.

2.2.7 After the entrustment is confirmed, a written entrustment contract and power of attorney should be signed with the entrusting party on the intellectual property due diligence of the target project. The main points of the entrustment contract should include the basic information of the target company, the purpose of due diligence and the scope of services , delivery time and requirements of work results, service fees, rights and obligations of both parties, confidentiality agreement and other substantive content.

2.3 Forming a project team

After the entrustment relationship is determined, the entrusting party and the entrusting party shall establish the project separately, and jointly set up a project team to carry out intellectual property due diligence in a timely manner.

2.3.1 After the entrustment relationship is determined, the entrusting party and the entrusting party shall establish a project internally, arrange personnel and follow-up work, make a plan for the expected expenses, apply in advance and arrange for payment.

2.3.2 Intellectual property has the characteristics of being professional and interdisciplinary. The team members required for due diligence around intellectual property must also be professional and complex. Therefore, the entrusting party and the entrusting party should be organized according to the actual situation and needs of the project. The members of the project team can generally include management personnel, technical personnel, lawyers who focus on legal affairs, lawyers with technical background and other assistants, etc. designated by the client.

2.3.3 The project team shall designate a person in charge (generally the manager designated by the entrusting party) and a contact person; if the entrusted party assigns multiple people to participate in the intellectual property due diligence project, the contact person and the contact person of the entrusting party shall be responsible for the work. Arrange and connect.

2.3.4 According to the main content of intellectual property due diligence, the corresponding personnel assigned by the entrusted party will also be different. If the main investigation content is patented technology, lawyers with technical background shall be assigned to participate.Ideally, attorneys with similar technical backgrounds as the patent being investigated should participate.

2.3.5 Before determining the members of the project team, the trustee shall conduct self-examination on the proposed participants to ensure that the proposed participants and their close relatives have no conflict of interest or interest relationship with the project, and require the participants to sign a letter of commitment and Confidentiality Agreement.

2.4 Formulating a plan

After the project team is formed, a work plan should be formulated according to the background, specificity and requirements of the project, combined with various time nodes, and the personnel and the work content of each stage should be reasonably arranged.

2.4.1 Target companies with different orientations in different projects (including but not limited to brand-oriented, technology-oriented, entertainment-oriented and comprehensive, etc.) have large differences in the proportion of intellectual property rights objects, and different project backgrounds (Including but not limited to mergers and acquisitions, listing, overseas investment, intellectual property securitization, etc.) The content and direction of intellectual property due diligence are also quite different. Therefore, when formulating a work plan, it is necessary to fully consider the specific characteristics of a specific project, grasp the key content of the work, reasonably estimate the working time, and arrange suitable personnel according to the background requirements.

2.4.2 The entrusted party shall designate the person in charge of the project and take full responsibility for the due diligence work. The members participating in the project shall divide the work of the intellectual property due diligence content item by item, and sign the list of division of work to clarify the responsibilities.

2.4.3 The entrusted party shall fully communicate with the entrusting party and relevant agencies and other time points when formulating the work plan, and arrange various tasks reasonably; Actively communicate with the entrusting party, ask the entrusting party to coordinate, and plan in advance the time for entry, personnel interviews and information provision.

2.4.4 After the work plan has been formulated, it shall be sent to the client for review.For the opinions of the entrusting party on the work content and time arrangement, try to cooperate with the amendment, and if it is unable to cooperate with the amendment, it shall explain to the entrusting party.

2.4.5 After the work plan is formulated, if there is a change in the time node such as the base date or other major changes in the project, the work plan should be revised in time to ensure that the project process is not affected as much as possible.

2.5 Preliminary investigation

Before formal due diligence, it is recommended that the entrusted party conduct preliminary investigation on the basic information of the target company, so as to carry out the subsequent preparation of the target company's document supply list and interview outline and the verification of key materials.

2.5.1 Investigate industrial and commercial information: The trustee can inquire about corporate credit information through public channels, including business license information, information on shareholders and capital contributions, information on existence and change, information on branch offices, information on administrative licensing and punishment, information on dishonesty, etc.; The people's court publishes documents to inquire about the litigation-related information of the target company.

2.5.2 Investigate business information: learn about the target company's production and operation status, R&D status, main business and products through the target company's official website; learn about the target company's competitive advantages, the popularity of the company and related products and services through public media reports, etc. .

2.5.3 Investigate intellectual property information: query the target company's patent, trademark, copyright and domain name application, authorization, registration, registration, license, transfer and pledge information through the national public website or professional intellectual property database.

2.6 Data collection

After completing the preliminary investigation, the entrusted party should integrate the information collected by itself and the information provided by the entrusting party, sort out the project background and clarify the due diligence objectives again. Based on this goal, combined with the basic information and business model of the target company, a list of documents to be provided by the target company is drawn up.Ask them to provide appropriate information and verify.

2.6.1 Document supply list: In addition to listing the material names, the document supply list prepared by the entrusted party should also provide necessary explanations for professional documents or industry terms, and at the same time, it should clarify the method of supplying materials, such as whether to show the original, and the copies to be kept. The number of copies and the form of official seal, etc.

2.6.2 Industrial and commercial information: The trustee shall require the target company to present or retrieve the original industrial and commercial registration information file of the target company, which includes the business license, legal representative's identity certificate, application for establishment registration, shareholder identity certificate and capital contribution ratio , Articles of Association, capital verification report, capital contribution, office space certificate, bank account, previous changes, board information, branches, foreign investment, etc. It should be noted that the entrusted party needs to go through the entrustment procedures with the target company to obtain the file from the local administration for industry and commerce. In addition, the target company may also be required to provide other documents such as personnel organization charts as needed.

2.6.3 Administrative examination and approval: The entrusted party searches the relevant laws and regulations, policy regulations, industrial policies and other regulatory provisions of the target company's industry based on the preliminary investigation information to determine whether its business scope has special industry or industry guidance restrictions . For industries that require administrative approval or franchising, relevant approval documents, filing documents, etc. shall also be required.

2.6.4 Intellectual property: The trustee shall require the target company to present all its intellectual property certification documents, including but not limited to the notice of acceptance of patent application, notice of rejection, notice of grant of patent rights, patent certificate, patent issued by the State Intellectual Property Office Registration form, payment information, etc.; notice of acceptance of trademark application, notice of preliminary trial announcement, trademark registration certificate, renewal certificate, etc.; copyright registration application documents, copyright registration certificate; domain name filing information, etc. In particular, it should be noted that the target company has submitted an application or obtained authorization,However, the supporting documents of the information that has not been announced by the national publicity system.

2.6.5 Technical data: The entrusted party may request the target company to provide other technical data that are not protected in the form of intellectual property rights under Item 2.6.4, especially in the form of patents, such as data on scientific and technological projects under development, completed, and expected to be carried out, and technical achievements Materials, technology award certificates, project establishment and evaluation reports in the national science and technology system, completion status of technology transformation implementation projects, as well as the target company's management and confidentiality rules, regulations and agreements involving related technologies.

2.6.6 Relevant agreements: The trustee shall require the target company to provide all intellectual property related agreements, including but not limited to intellectual property or technology licensing contracts, transfer contracts, development contracts, etc., as well as the validity, filing and performance of the contracts.

2.6.7 Data summary: After collecting the data, the entrusted party should summarize and organize the data in a timely manner, indicating the source, type, whether the data is original, whether there is any relationship or conflict between the data and other basic information, and if necessary, make supplementary due diligence and Develop a list of supplementary information.

2.7 Interviews and visits

The trustee may directly contact the target company and its personnel by means of interviews and visits to understand or verify undisclosed or conflicting information.

2.7.1 The entrusted party shall fully communicate with the target company the purpose and significance of the due diligence investigation based on the requirements of the entrusting party and the project, reasonably determine the interviewee and arrange the interview time, so as to obtain the cooperation, understanding and cooperation of the target company and the interviewee. trust.

2.7.2 Before conducting the interview, the entrusted party shall issue a confidentiality commitment letter to the target company and the interviewee in advance, promising to undertake the confidentiality obligation of the target company's business information and technical information that has not been publicly disclosed during the interview and due diligence, so as to ensure The target company and interviewees fully disclose relevant information.

2.7.3 After identifying the interviewee,The entrusted party shall draw up an interview outline based on the position and position information of the interviewee, and especially shall focus on interviewing the information that has not been publicized or fully disclosed through public channels, and verify the conflicting information in the materials. The following exemplifies the interview content that should be paid attention to when conducting interviews with people in different positions:

(1) Company managers: First of all, the target company's managers should understand the general situation of the target company, such as operation status, production and operation mode, industry reputation, competition power and major competitors, litigation-related information, core intellectual property rights and/or technologies, research and development projects, research and development results, research and development plans, and research independence. Secondly, interviews should be conducted on the work experience of these personnel, whether they have signed confidentiality agreements and non-compete agreements, etc.; achievements, R&D plans, and research independence. At the same time, it is necessary to understand the position, specific work content, work experience, work results, etc. of the technical personnel to analyze whether the target company's intellectual property rights have the risk of ownership disputes.

2.7.4 Interview transcripts: The entrusted party shall assign at least two interviewers to conduct individual interviews with the interviewees, and make interview transcripts according to the interview contents. The interviewers and interviewees shall sign the transcripts after confirming that they are correct. The interview transcript should be attached with the interviewee's identity certificate and labor contract as attachments, and the interview process should be photographed and kept.

2.8 Information verification

After obtaining sufficient information through preliminary investigation, data collection, interviews, etc., the entrusted party needs to organize, summarize and screen the data to verify the authenticity and relevance of the data.

2.8.1 First of all, it should be emphasized that all relevant information should be subject to the information publicly disclosed by the relevant administrative departments.The information disclosed by the third-party website and the materials and interview records provided by the target company are used as confirmation or supplement. For information whose authenticity is doubtful, the entrusted party may verify with the relevant administrative department and request the administrative department to issue corresponding certification documents.

2.8.2 If the relevant information stated by the target company in the interview cannot be confirmed, it should be required to issue a letter of commitment to ensure the authenticity of the information and assume corresponding responsibilities. In order to ensure the accuracy and credibility of the data, it is recommended that the entrusted party conduct interviews with different interviewees about the same content, or use multiple methods to verify each other and obtain supporting materials.

2.9 Communicate with third-party agencies

In a due diligence project, intellectual property is often only one part of the content. In addition to intellectual property due diligence service units, the entrusting party will also entrust securities companies, accountants, asset appraisal agencies, auditors Institutions and other intermediaries work together to conduct due diligence on other content. At this time, the trustee should actively maintain communication with third-party agencies during the due diligence process to ensure the authenticity and consistency of the information.

2.9.1 When the entrusted party and the third-party agency jointly carry out due diligence work, the investigation content may overlap or overlap. Due to the different focus and purpose of the investigation, the angle of each party's exploration and analysis of the problem will be different. Therefore, it is recommended to During the due diligence process, the entrusted party regularly summarizes the conflicting or questionable information and related risks exposed during the investigation process, and regularly holds meetings with third-party institutions to verify each other’s problems, express their opinions and listen to others’ professional opinions. .

2.9.2 For some inter-professional or inter-disciplinary issues, such as the financial issues of the target company, the valuation of intellectual property assets, etc., the trustee should communicate with professional third-party institutions and refer to their professional opinions.in order to detect potential risks in time.

2.10 Report writing

After the investigation and analysis work is completed, the trustee shall integrate the contents of the investigation work, the analysis of the data involved in the investigation, the intellectual property issues found and the corresponding handling opinions, etc., and write them down in writing Report.

2.10.1 The intellectual property due diligence report should be targeted and consistent with the actual needs of the entrusting party and the purpose of conducting due diligence. The language of the report should be professional and concise, logically clear, coherent, and focused.

2.10.2 The preface of the intellectual property due diligence report shall include the following contents: statement of purpose of due diligence report and limitation of liability, interpretation of relevant terms, scope of entrustment and due diligence, and background of due diligence.

2.10.3 The main body of the due diligence report should include the following: the first part is the statement of facts, including the work plan and completion status; the basic information of the relevant personnel of the target company participating in the due diligence investigation, the intellectual property rights of the target company and its competitors, and relevant industry fields The second is the specific legal provisions applicable to the analysis of the relevant facts; the last is the legal risk analysis and recommendation part. Disclose the existing legal risks and provide professional handling opinions or solutions accordingly.

2.10.4 The due diligence process will involve a large amount of documents and materials. The entrusted party can use the list of materials provided by the entrusting party and the target company, documents that play an important role in the legal risks disclosed in the report, relevant certification materials, etc., and based on relevant materials. Organize the charts, summary tables and other information produced as attachments to the due diligence report to make the report more complete and comprehensive.

2.11 Feedback and revision

After the trustee has written the first draft of the intellectual property due diligence report,It should be provided to the entrusting party and third-party institutions participating in due diligence in a timely manner, and adjustments should be made based on feedback.

2.11.1 After receiving the feedback from the entrusting party, the entrusted party shall fully verify and verify the problems mentioned in the feedback in the principle of objectivity, professionalism and prudence before deciding whether to adopt it and make corresponding revisions in the report.

2.11.2 After the entrusted party completes the first draft of the report, if the entrusted party finds or is informed that the relevant facts have changed, the entrusted party shall communicate with the entrusting party, conduct supplementary due diligence or revise the contents of the report as necessary, and re-evaluate the legal risks of the project.

2.11.3 After completing the first draft of the report, if the entrusted party finds that the information obtained during the due diligence process is genuine, doubtful, incorrect or incomplete, or that major key information is omitted or newly discovered, it shall supplement it in a timely manner. Conduct due diligence and update relevant content in the due diligence report in a timely manner.

2.12 Completion of the report

On the basis of a comprehensive and systematic arrangement and review of the due diligence work, combined with relevant feedback and revision opinions, the trustee finally completed the intellectual property due diligence report.

2.12.1 The intellectual property due diligence report shall indicate the reporting date and the deadline for obtaining relevant materials, and attach the signature and seal of the trustee, indicating that it is legally responsible for the due diligence report and its results.

2.12.2 After the intellectual property due diligence report is completed and before signing, the trustee shall arrange for writers and non-writers to prudently check and cross-check the due diligence report, to avoid clerical errors or format errors, which are inconsistent with the working papers Wait for mistakes.

2.13 Archive for future reference

Intellectual property due diligence involves a lot of content and documents, it is necessary to completely preserve the work records formed in the process of issuing the intellectual property due diligence project report, as well as all documents and materials obtained during the work.In order to check and reflect the problems and deficiencies of the project work.

2.13.1 Intellectual property due diligence should establish a working paper system, which is an important evidence for judging whether the due diligence team is diligent and responsible.

2.13.2 The due diligence working papers filed for reference refer to the general term for various work records and important materials related to the project obtained and produced by the due diligence project members during the due diligence process.

2.13.3 The working papers shall truly, accurately and completely reflect the due diligence work carried out, and shall be able to cover and truthfully reflect all the data and materials of the entire intellectual property due diligence, as well as the analysis and evaluation of relevant personnel.

2.13.4 The production of working papers should be in standard format, clear records, concise and easy to understand, and clear in expression, and can be numbered, sorted and classified according to the logical sequence of project work, and a unified catalogue should be established for easy reference and verification. 2.13.5 All documents involved in the project should be archived for future reference, and the project members should be responsible for the filing and reference work. 2.13.6 All archived documents should fully reflect important information such as the name of the document, the content of the document, the source of the document, the handover personnel and the corresponding date, and be accompanied by the signature of the person in charge to form a strict entry and exit record. 2.13.7 For the relevant information obtained and confirmed from a third party other than the target company, in addition to indicating the source of the information, the project members should also implement necessary investigation procedures to form corresponding investigation records and necessary signatures. 2.13.8 Before filing all documents and materials for future reference, the working papers should be carefully checked. Once any omissions or other defects are found, they should be reported to the team leader in time.and take appropriate remedial measures in a timely manner. 2.13.9 The storage period of all paper and electronic documents for project filing shall be no less than ten years.

Appendix 1: IP Due Diligence Flowchart

Appendix 2: IP Due Diligence Report Sample

Intellectual Property Due Diligence Report on ***Project

Foreword

Legal Responsibility Statement

***The Law Firm is entrusted with *** Conduct legal due diligence on the intellectual property status and risks of the project (hereinafter referred to as "the project"), and issue this report to the client (hereinafter referred to as the "client") who is responsible for this legal due diligence.

This report is based on the documents, explanations, interviews and other information provided by relevant personnel to our lawyers as of the date of this report, as well as information obtained by our lawyers through public inquiries.

This report is based solely on the information the firm has obtained so far from the information provided by the target company and the facts verified by the firm. Therefore, if further information becomes available to the Firm after the publication of this report, this report will need to be updated accordingly and may cause some of the conclusions contained therein to change.

The firm only conducts due diligence on this intellectual property from the perspective of Chinese law and at the request of the client. The analysis and suggestions made by the firm in this report are based on the laws and regulations that have been publicly released and are currently in force in China as of the date of this report. The firm does not express any opinion on investment decisions such as project feasibility, technical level, development prospects, etc., as well as other legal issues other than Chinese legal issues.

This report is issued to the client only for the purpose stated in this report. Without the prior written consent of the firm, this report shall not be used by any other unit or individual, nor shall it be used for any other purpose.

Definitions of related terms

In this report,除非文义另有所指，下列用语具有下述涵义：

简称	指	全称
	指
	指
	指

正文

一、本项目知识产权尽职调查的背景

二、本所工作计划及工作内容

3. Basic information of the participants in this project

4. Scope of intellectual property due diligence in this project

5. Basic intellectual property status of the target company

6. Legal risk analysis and suggestions

7.Appendix

Appendix

Appendix document list

Appendix 1 : Interview photos

Attachment 2: Interview records

Attachment 3: Labor contracts of the survey respondents (confidentiality agreement, non-compete agreement)

Attachment 4: Intellectual property documents: including but not limited to patent certificates (including patent specifications, patent claims , important documents issued by administrative agencies, etc.), copyright registration and modification documents,Trademark certificate and change notice, domain name registration certificate, etc.)

Attachment 5: Intellectual property related honors

Attachment 6: Intellectual property contract

Attachment 7: Letter of commitment/guarantee名称

文件主要内容

是否原件

交接人及日期

备注

.授权手续

1.1

利益冲突检索

授权手续及保密承诺

1.2

委托合同

1.3

保密协议及承诺书

.目标公司基本信息

.著作权

.商标权

. Patent rights The time of obtaining the right, the method of obtaining it, the term of protection, and the payment of annual fees项权利

.商业秘密及管理

. 域名

. Information about litigation .3

Appendix 4: Commonly used websites for intellectual property due diligence

1. Commonly used websites for corporate information inquiry:

1, National Enterprise Credit Information Publicity System: http://www.gsxt.gov.cn /index.html;

2, Tianyancha: https://www.tianyancha.com/;

3, Qixin Insurance: http://www.qixin.com/;

4, Qixinchacha: http://www .qichacha.com;

5, National Organization Code Management Center: www.nacao.org.cn.

2.1	营业执照	目标企业的成立背景、登记注册时间、历史沿革、经营范围、股权结构、对外投资、业务经营等基本信息
2.2	章程
2.3	工商登记资料
2.4	员工名册	研发机构体制及设置、研发人员构成及资历等
2.5	财务报表	研发费用及投入情况
3.1	著作登记证书、时间戳等	著作权的权属情况（是否涉及职务作品、委托作品、 Cooperative works, etc.); the time of initial acquisition of copyright, the method of acquisition, and the term of protectionml17
3.3	作品清单	著作权的权利类型等
3.4	他项权利证书	是否存在他项权利
4.1	商标注册证、核准转让注册商标证明等	商标的权属情况、取得方式(such as: original acquisition, subsequent acquisition, etc.), acquisition time, protection period, renewal fees, etc不被核准注册的情况等
4.3	他项权利证书	是否存在他项权利
4.4	荣誉证书等	商标的使用情况及驰名状态等
4.5	核准续展注册证明	Payment and renewal of trademarks, etc.
5.4	荣誉证书等	专利的使用情况
6.1	商业秘密文件	商业秘密的内容、数量、范围、重要程度及采取的保护措施
6.2	保密协议、竞业Restriction agreements, etc.	Confidentiality system, personnel management, archive management, anti-disclosure mechanism, training work, reward and punishment measures, resignation management and other trade secret management measures公式等	目标公司的技术积累和知识经验等专有技术情况
7.2	技术许可协议	专有技术对外许可情况
7.3	管理规章制度	对专有技术的管理制度
8.1	域名Situation	Ownership of the domain name, acquisition time, acquisition method, etc.
8.2	Others7
News about the target company's litigation
0. Implementation and operation
10.1	license agreement如：转让、许可、质押、出资等
10.2	转让协议、质押合同
10.3	出资协议等
1. 访谈记录及受访者提供的证明材料
11.1	访谈记录
11.2	访谈图片、音频等
11 .3	Evidence provided by respondents

. Commonly used websites for inquiring about litigation information:

1, China Judgment Documents Website: http://wenshu.court.gov.cn/;

2, China Intellectual Property Judgment Documents Website: http://ipr.court.gov .cn/;

3, Peking University Magic Weapon: http://www.pkulaw.cn/;

4, Worcester First: http://law.wkinfo.com.cn/;

5, OpenLaw: http:// openlaw.cn/;

6, non-litigated cases: https://www.itslaw.com/;

7, Caseshare: http://www.caseshare.cn.

. Commonly used copyright inquiry websites:

1, National Copyright Administration website: http://www.ncac.gov.cn/;

2, National Copyright Protection Center (National Copyright Registration Portal): http://www. gapp.gov.cn/govservice/108.shtml;

3, China Copyright Protection Center: http://www.ccopyright.com.cn/;

4, China Copyright Online: http://www.chinacopyright.org.cn ;

5, Qichacha: https://www.qichacha.com/more_zzqs.

4. Commonly used trademark inquiry website:

1, China Trademark Website: http://sbj.saic.gov.cn/;

2, ITAOTM Trademark Inquiry Website: http://www.itaotm.com/;

3, Trademark Classification Table: http://www .sbfl.cn/;

4, Qichacha: https://www.qichacha.com/more_brands;

5, Wisdom Bud trademark patsnap: http://trademark.patsnap.cn;

6, Madrid international trademark search: http ://www.wipo.int/romarin;

7, EU trademark search: https://oami.europa.eu/ohimportal/en/.

5. Commonly used patent search websites:

1, Comprehensive service platform of State Intellectual Property Office: http://www.sipo.gov.cn/zhfwpt/;

2, China Patent Information Network: http://www.patent. com.cn;

3, Patent search and analysis: http://www.pss-system.gov.cn/sipopublicsearch/portal/index.shtml;

4, SooPAT patent search: http://www.soopat.com/;

5, incoPat technology innovation intelligence platform: http://www.incopat.com/#page1;

6, patsnap wisdom bud: http://www.zhihuiya.com/;

7, INNOJOY: http://www.innojoy.com/searchresult/default.html;

8, US patent and trademark query: http://www.uspto.gov.

6. Commonly used domain name query website:

1, Ministry of Industry and Information Technology ICP/IP address/domain name information record management system: http://www.miitbeian.gov.cn/publish/query/indexFirst.action;

2, website Long tool: http://tool.chinaz.com/;

3, whois query-China million net: https://whois.aliyun.com.

Appendix 5: Summary of Commonly Used Regulations for Intellectual Property Due Diligence

I. Regulations on Intellectual Property Due Diligence

1, Securities Law of the People's Republic of China (2014)

2, Law Firm Securities Law Practice Rules (for Trial Implementation) (China Securities Regulatory Commission 2010)

3, Administrative Measures for Law Firms Engaged in Securities Legal Business (China Securities Regulatory Commission, Ministry of Justice of the People's Republic of China 2007)

4, Administrative Measures for Initial Public Offering and Listing on the Growth Enterprise Market (Order of China Securities Regulatory Commission 2015 Revised in 2009)

5. Guidelines for the Contents and Formats of Information Disclosure by Public Offering Companies No. 6 (revised by China Securities Regulatory Commission in 1999)

6, Regarding the comprehensive strengthening of intellectual property adjudication work for the construction of innovation Opinions on Providing Judicial Guarantee for a Model Country (Supreme People's Court, 2007)

7. Circular on Further Strengthening Judicial Protection of Intellectual Property Rights (Supreme People's Court, 2004)

8, Opinions on Several Issues concerning Intellectual Property Judgment and Serving the Overall Situation under the Current Economic Situation (Supreme People's Court, 2009)

9, Regarding Criminal Handling of Intellectual Property Infringement Interpretation of Several Issues Concerning the Specific Application of Law in Cases II (Supreme People's Court, Supreme People's Procuratorate, 2007)

10, Interpretation of Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Intellectual Property Infringement (Supreme People's Court, Supreme People's Procuratorate, 2004)

II. Copyright-related regulations

1, Copyright Law of the People's Republic of China (2010)

2, Regulations on the Implementation of the Copyright Law of the People's Republic of China (revised by the State Council in 2013)

3, Regulations on the Collective Administration of Copyright (revised by the State Council in 2013)

4, Regulations on the Protection of Information Network Dissemination Rights ( State Council Revised in 2013)

5, Computer Software Protection Regulations (revised by the State Council in 2013)

6, Provisions on the Implementation of International Copyright Treaties (State Council 1992)

7, Copyright Pledge Registration Measures (National Copyright Administration 2011)

8, Computer Software Copyright Registration Measures (National Copyright Administration, 2002)

9, Provisions on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Infringing the Right of Information Network Dissemination (Supreme People's Court, 2013)

10, Interpretation on Several Issues concerning the Application of Law in the Trial of Copyright Civil Disputes Court 2002)

3. Trademark-related regulations

1, Trademark Law of the People's Republic of China (revised in 2013)

2, Regulations on the Implementation of the Trademark Law of the People's Republic of China (revised in 2014 by the State Council)

3, Trademark Examination and Trial Standards (State Administration for Industry and Commerce 2017 Revised in 2014)

4, Provisions on the Recognition and Protection of Well-known Trademarks (State Administration for Industry and Commerce, 2014)

5. Provisions on the Procedures for the Registration of the Pledge of the Exclusive Right to Register a Trademark (State Administration for Industry and Commerce, 2009)

6, Interpretation of the Supreme People's Court on the Jurisdiction of Trademark Cases and the Application of Law after the Implementation of the Decision on the Amendment of the Trademark Law (The Supreme People's Court, 2014)

7, Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases Involving the Protection of Well-known Trademarks (Supreme People's Court, 2009)

8, Interpretation of Several Issues on the Application of Law in the Trial of Trademark Civil Dispute Cases (Supreme People's Court, 2002)

IV. Patent-related regulations

1, Patent Law of the People's Republic of China (revised in 2008)

2, Law of the People's Republic of China on Promoting the Transformation of Scientific and Technological Achievements (revised in 2015)

3, Law of the People's Republic of China on Progress in Science and Technology (revised in 2007)

4, Patent of the People's Republic of China Regulations for the Implementation of the Law (revised by the State Council in 2010)

5, Regulations on Patent Agency (revised by the State Council in 1991)

6, Regulations on National Defense Patents (revised by the State Council and the Central Military Commission in 2004)

7, Guidelines for Patent Examination (revised by the State Intellectual Property Office in 2017)

8, Patents Administrative Law Enforcement Measures (Amended by the State Intellectual Property Office in 2015)

9, Measures for Compulsory Licensing of Patent Implementation (Amended by the State Intellectual Property Office in 2012)

10 Several Provisions on the Application of Law in the Trial of Patent Dispute Cases (Amended by the Supreme People's Court in 2015)

11, on Several Provisions on the Application of Legal Issues to Suspension of Patent Infringement Before Litigation (Supreme People's Court, 2001) Provisions (State-owned Assets Supervision and Administration Commission of the State Council, 2010)

3, Several Provisions on Prohibiting Infringement of Trade Secrets (State Administration for Industry and Commerce 1Amended in 1998)

4, Interpretation of Several Issues Concerning the Application of Law in the Trial of Unfair Competition Civil Cases (Supreme People's Court, 2007)

6. Domain Name Relevant Regulations

1, China Internet Network Information Center Domain Name Dispute Resolution Procedure Rules (China Internet Network Information Center) Revised in 2012)

2, China Internet Network Information Center Domain Name Registration Implementation Rules (revised in 2012 by China Internet Network Information Center)

3, Uniform Dispute Resolution Policy (Uniform Dispute Resolution Policy,Internet Corporation for Assigned Names and Numbers (ICANN) 1999)

4, Notice of the General Office of the China Banking Regulatory Commission on Strengthening Domain Name Protection of Banking Financial Institutions (China Banking Regulatory Commission 2010)

5, Ministry of Industry and Information Technology on Strengthening the Internet Circular on the Security Guarantee of Domain Name System (Ministry of Industry and Information Technology, 2010)

6, Interpretation on Several Issues concerning the Application of Law in the Trial of Civil Disputes Involving Computer Network Domain Names (Supreme People's Court, 2001)

VII. Other Relevant Provisions

1, On Trial Provisions on Several Issues in Civil Dispute Cases of Conflicts between Registered Trademarks, Enterprise Names and Prior Rights (Supreme People's Court, 2008)

2, Regulations of the People's Republic of China on the Protection of New Plant Varieties (revised by the State Council in 2014)

3, Regulations on the Protection of Layout Designs of Integrated Circuits (State Council, 2011)

4, Notice of the General Office of the State Council on Issues Concerning Strengthening the Management of Integrated Circuit Cards (General Office of the State Council, 1997)

5, Notice of the Supreme People's Court on Carrying out Trials of Cases Involving Layout Design of Integrated Circuits (Supreme People's Court 2011 Year)

6, Regulations of the People's Republic of China on the Administration of Technology Import and Export (revised by the State Council in 2011)

7, Administrative Measures for the Registration of Technology Import and Export Contracts (revised in 2009 by the Ministry of Commerce)

8, General Office of the Ministry of Commerce on the import and export of dual-use items and technologies Notice on the Issue of Certificate Replacement (Ministry of Commerce, 2007)

9, Interpretation on Several Issues Concerning the Application of Law in the Trial of Technology Contract Dispute Cases (Supreme People's Court, 2005)

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Source [Fist Clap] All China Lawyers Association

2.2 Determining the entrustment of

With the increasing emphasis on intellectual property, the scope and degree of due diligence requirements for intellectual property will inevitably change accordingly. According to the different entrusting subjects, purposes, and investigation objectives of intellectual property due diligence, the content that needs to be paid attention to in the process of determining the entrusting relationship is also very different.

2.2.1 The entrusting subjects of intellectual property due diligence are diverse, and different subjects have different purposes and needs for due diligence. However, due to the particularity of intellectual property rights, when the entrusting entity issues the demand for intellectual property due diligence, its own content and direction of due diligence may not be accurate.

2.2.2 When the professional intellectual property due diligence team receives the due diligence request from the entrusting party, it shall conduct a conflict of interest search on the matters to be entrusted in advance; Due diligence project characteristics, fully communicate with the entrusting party, understand the purpose of its intellectual property due diligence, determine its actual needs, and lay the foundation for the subsequent formulation of service plans and quotations.

2.2.3 When formulating a service plan, the identity of the client and the characteristics of the project should be fully considered, and service content that meets the actual needs of due diligence should be formulated in a targeted manner. For example, for intellectual property due diligence in the process of listing for the final issue of legal opinions, when formulating service content, more attention should be paid to the comprehensive investigation of the target entity’s intellectual property ownership and litigation; When investors conduct due diligence on intellectual property rights in the investment process of target companies, they also need to focus on the stability of intellectual property rights and the investigation and analysis of infringement risks.

2.2.4 Before formulating a service plan, based on the project information provided by the entrusting party, conduct a preliminary search on the main business and intellectual property ownership of the investigation target through public channels such as the Internet, and predict the workload of due diligence, so as to better Targeted development of service content and service quotations.

2.2.5 In view of the professionalism and particularity of intellectual property rights, when formulating service plans, taking into account the characteristics of the entrusting party and the affordability of expenses, it is also possible to serve the entrusting party on the basis of meeting the basic requirements of intellectual property due diligence for the project. Provide a variety of solutions for basic service content and in-depth service content (such as intellectual property rights stability, infringement risk or conflict with others' prior rights, etc.), and clarify to the entrusting party that different service content can ultimately obtain different levels of information for The entrusting party chooses according to its actual situation.

2.2.6 Regardless of whether the entrusting party is in the form of directional inquiry or open tendering, the interested intellectual property due diligence team should submit a written quotation or service plan to the entrusting party. The brief can be adjusted accordingly, but it should at least include a brief analysis of the relevant project, the scope and content of the proposed due diligence, and the corresponding quotation for the corresponding service content, etc.

2.2.7 After the entrustment is confirmed, a written entrustment contract and power of attorney should be signed with the entrusting party on the intellectual property due diligence of the target project. The main points of the entrustment contract should include the basic information of the target company, the purpose of due diligence and the scope of services , delivery time and requirements of work results, service fees, rights and obligations of both parties, confidentiality agreement and other substantive content.

2.3 Forming a project team

After the entrustment relationship is determined, the entrusting party and the entrusting party shall establish the project separately, and jointly set up a project team to carry out intellectual property due diligence in a timely manner.

2.3.1 After the entrustment relationship is determined, the entrusting party and the entrusting party shall establish a project internally, arrange personnel and follow-up work, make a plan for the expected expenses, apply in advance and arrange for payment.

2.3.2 Intellectual property has the characteristics of being professional and interdisciplinary. The team members required for due diligence around intellectual property must also be professional and complex. Therefore, the entrusting party and the entrusting party should be organized according to the actual situation and needs of the project. The members of the project team can generally include management personnel, technical personnel, lawyers who focus on legal affairs, lawyers with technical background and other assistants, etc. designated by the client.

2.3.3 The project team shall designate a person in charge (generally the manager designated by the entrusting party) and a contact person; if the entrusted party assigns multiple people to participate in the intellectual property due diligence project, the contact person and the contact person of the entrusting party shall be responsible for the work. Arrange and connect.

2.3.4 According to the main content of intellectual property due diligence, the corresponding personnel assigned by the entrusted party will also be different. If the main investigation content is patented technology, a lawyer with technical background should be assigned to participate, preferably with the background of the patented technology under investigation. Similar lawyers are involved.

2.3.5 Before determining the members of the project team, the trustee shall conduct self-examination on the proposed participants to ensure that the proposed participants and their close relatives have no conflict of interest or interest relationship with the project, and require the participants to sign a letter of commitment and Confidentiality Agreement.

2.4 Formulating a plan

After the project team is formed, a work plan should be formulated according to the background, specificity and requirements of the project, combined with various time nodes, and the personnel and the work content of each stage should be reasonably arranged.

2.4.1 Target companies with different orientations in different projects (including but not limited to brand-oriented, technology-oriented, entertainment-oriented and comprehensive, etc.) have large differences in the proportion of intellectual property rights objects, and different project backgrounds (Including but not limited to mergers and acquisitions, listing, overseas investment, intellectual property securitization, etc.) The content and direction of intellectual property due diligence are also quite different. Therefore, when formulating a work plan, it is necessary to fully consider the specific characteristics of a specific project, grasp the key content of the work, reasonably estimate the working time, and arrange suitable personnel according to the background requirements.

2.4.2 The entrusted party shall designate the person in charge of the project and take full responsibility for the due diligence work. The members participating in the project shall divide the work of the intellectual property due diligence content item by item, and sign the list of division of work to clarify the responsibilities.

2.4.3 The entrusted party shall fully communicate with the entrusting party and relevant agencies and other time points when formulating the work plan, and arrange various tasks reasonably; Actively communicate with the entrusting party, ask the entrusting party to coordinate, and plan in advance the time for entry, personnel interviews and information provision.

2.4.4 After the work plan has been formulated, it should be sent to the client for review. For the client's feedback on the work content and time arrangement, try to cooperate with the amendment. If it is unable to cooperate with the amendment, it should be explained to the client.

2.4.5 After the work plan is formulated, if there is a change in the time node such as the base date or other major changes in the project, the work plan should be revised in time to ensure that the project process is not affected as much as possible.

2.5 Preliminary investigation

Before formal due diligence, it is recommended that the entrusted party conduct preliminary investigation on the basic information of the target company, so as to carry out the subsequent preparation of the target company's document supply list and interview outline and the verification of key materials.

2.5.1 Investigate industrial and commercial information: The trustee can inquire about corporate credit information through public channels, including business license information, information on shareholders and capital contributions, information on existence and change, information on branch offices, information on administrative licensing and punishment, information on dishonesty, etc.; The people's court publishes documents to inquire about the litigation-related information of the target company.

2.5.2 Investigate business information: learn about the target company's production and operation status, R&D status, main business and products through the target company's official website; learn about the target company's competitive advantages, the popularity of the company and related products and services through public media reports, etc. .

2.5.3 Investigate intellectual property information: query the target company's patent, trademark, copyright and domain name application, authorization, registration, registration, license, transfer and pledge information through the national public website or professional intellectual property database.

2.6 Data collection

After completing the preliminary investigation, the entrusted party should integrate the information collected by itself and the information provided by the entrusting party, sort out the project background and clarify the due diligence objectives again. Based on this goal, combined with the basic information and business model of the target company, a list of documents to be provided by the target company is drawn up, and it is required to provide relevant information and verify it.

2.6.1 Document supply list: In addition to listing the material names, the document supply list prepared by the entrusted party should also provide necessary explanations for professional documents or industry terms, and at the same time, it should clarify the method of supplying materials, such as whether to show the original, and the copies to be kept. The number of copies and the form of official seal, etc.

2.6.2 Industrial and commercial information: The trustee shall require the target company to present or retrieve the original industrial and commercial registration information file of the target company, which includes the business license, legal representative's identity certificate, application for establishment registration, shareholder identity certificate and capital contribution ratio , Articles of Association, capital verification report, capital contribution, office space certificate, bank account, previous changes, board information, branches, foreign investment, etc. It should be noted that the entrusted party needs to go through the entrustment procedures with the target company to obtain the file from the local administration for industry and commerce. In addition, the target company may also be required to provide other documents such as personnel organization charts as needed.

2.6.3 Administrative examination and approval: The entrusted party searches the relevant laws and regulations, policy regulations, industrial policies and other regulatory provisions of the target company's industry based on the preliminary investigation information to determine whether its business scope has special industry or industry guidance restrictions . For industries that require administrative approval or franchising, relevant approval documents, filing documents, etc. shall also be required.

2.6.4 Intellectual property: The trustee shall require the target company to present all its intellectual property certification documents, including but not limited to the notice of acceptance of patent application, notice of rejection, notice of grant of patent rights, patent certificate, patent issued by the State Intellectual Property Office Registration form, payment information, etc.; notice of acceptance of trademark application, notice of preliminary trial announcement, trademark registration certificate, renewal certificate, etc.; copyright registration application documents, copyright registration certificate; domain name filing information, etc. In particular, it should be noted that the target company has submitted an application or obtained authorization, but the national publicity system has not yet announced the information.

2.6.5 Technical data: The entrusted party may request the target company to provide other technical data that are not protected in the form of intellectual property rights under Item 2.6.4, especially in the form of patents, such as data on scientific and technological projects under development, completed, and expected to be carried out, and technical achievements Materials, technology award certificates, project establishment and evaluation reports in the national science and technology system, completion status of technology transformation implementation projects, as well as the target company's management and confidentiality rules, regulations and agreements involving related technologies.

2.6.6 Relevant agreements: The trustee shall require the target company to provide all intellectual property related agreements, including but not limited to intellectual property or technology licensing contracts, transfer contracts, development contracts, etc., as well as the validity, filing and performance of the contracts.

2.6.7 Data summary: After collecting the data, the entrusted party should summarize and organize the data in a timely manner, indicating the source, type, whether the data is original, whether there is any relationship or conflict between the data and other basic information, and if necessary, make supplementary due diligence and Develop a list of supplementary information.

2.7 Interviews and visits

The trustee may directly contact the target company and its personnel by means of interviews and visits to understand or verify undisclosed or conflicting information.

2.7.1 The entrusted party shall fully communicate with the target company the purpose and significance of the due diligence investigation based on the requirements of the entrusting party and the project, reasonably determine the interviewee and arrange the interview time, so as to obtain the cooperation, understanding and cooperation of the target company and the interviewee. trust.

2.7.2 Before conducting the interview, the entrusted party shall issue a confidentiality commitment letter to the target company and the interviewee in advance, promising to undertake the confidentiality obligation of the target company's business information and technical information that has not been publicly disclosed during the interview and due diligence, so as to ensure The target company and interviewees fully disclose relevant information.

2.7.3 After confirming the interviewee, the entrusted party shall draw up an interview outline according to the interviewee's position and position information, and especially shall focus on interviewing the information that has not been publicized or fully disclosed through public channels, and verify the conflicting information in the materials. The following exemplifies the interview content that should be paid attention to when conducting interviews with people in different positions:

(1) Company managers: First of all, the target company's managers should understand the general situation of the target company, such as operation status, production and operation mode, industry reputation, competition power and major competitors, litigation-related information, core intellectual property rights and/or technologies, research and development projects, research and development results, research and development plans, and research independence. Secondly, interviews should be conducted on the work experience of these personnel, whether they have signed confidentiality agreements and non-compete agreements, etc.; achievements, R&D plans, and research independence. At the same time, it is necessary to understand the position, specific work content, work experience, work results, etc. of the technical personnel to analyze whether the target company's intellectual property rights have the risk of ownership disputes.

2.7.4 Interview transcripts: The entrusted party shall assign at least two interviewers to conduct individual interviews with the interviewees, and make interview transcripts according to the interview contents. The interviewers and interviewees shall sign the transcripts after confirming that they are correct. The interview transcript should be attached with the interviewee's identity certificate and labor contract as attachments, and the interview process should be photographed and kept.

2.8 Information verification

After obtaining sufficient information through preliminary investigation, data collection, interviews, etc., the entrusted party needs to organize, summarize and screen the data to verify the authenticity and relevance of the data.

2.8.1 First of all, it should be emphasized that all relevant information should be based on the information publicly disclosed by the relevant administrative departments, and the information disclosed on the third-party website and the materials and interview records provided by the target company should be used as confirmation or supplement. For information whose authenticity is doubtful, the entrusted party may verify with the relevant administrative department and request the administrative department to issue corresponding certification documents.

2.8.2 If the relevant information stated by the target company in the interview cannot be confirmed, it should be required to issue a letter of commitment to ensure the authenticity of the information and assume corresponding responsibilities. In order to ensure the accuracy and credibility of the data, it is recommended that the entrusted party conduct interviews with different interviewees about the same content, or use multiple methods to verify each other and obtain supporting materials.

2.9 Communicate with third-party agencies

In a due diligence project, intellectual property is often only one part of the content. In addition to intellectual property due diligence service units, the entrusting party will also entrust securities companies, accountants, asset appraisal agencies, auditors Institutions and other intermediaries work together to conduct due diligence on other content. At this time, the trustee should actively maintain communication with third-party agencies during the due diligence process to ensure the authenticity and consistency of the information.

2.9.1 When the entrusted party and the third-party agency jointly carry out due diligence work, the investigation content may overlap or overlap. Due to the different focus and purpose of the investigation, the angle of each party's exploration and analysis of the problem will be different. Therefore, it is recommended to During the due diligence process, the entrusted party regularly summarizes the conflicting or questionable information and related risks exposed during the investigation process, and regularly holds meetings with third-party institutions to verify each other’s problems, express their opinions and listen to others’ professional opinions. .

2.9.2 For some inter-professional or inter-disciplinary issues, such as the target company's financial issues, intellectual property asset valuation issues, etc., the trustee should communicate with professional third-party institutions and refer to their professional opinions, so as to discover potential problems in a timely manner. risks of.

2.10 Report writing

After the investigation and analysis work is completed, the trustee shall integrate the contents of the investigation work, the analysis of the data involved in the investigation, the intellectual property issues found and the corresponding handling opinions, etc., and write them down in writing Report.

2.10.1 The intellectual property due diligence report should be targeted and consistent with the actual needs of the entrusting party and the purpose of conducting due diligence. The language of the report should be professional and concise, logically clear, coherent, and focused.

2.10.2 The preface of the intellectual property due diligence report shall include the following contents: statement of purpose of due diligence report and limitation of liability, interpretation of relevant terms, scope of entrustment and due diligence, and background of due diligence.

2.10.3 The main body of the due diligence report should include the following: the first part is the statement of facts, including the work plan and completion status; the basic information of the relevant personnel of the target company participating in the due diligence investigation, the intellectual property rights of the target company and its competitors, and relevant industry fields The second is the specific legal provisions applicable to the analysis of the relevant facts; the last is the legal risk analysis and recommendation part. Disclose the existing legal risks and provide professional handling opinions or solutions accordingly.

2.10.4 The due diligence process will involve a large amount of documents and materials. The entrusted party can use the list of materials provided by the entrusting party and the target company, documents that play an important role in the legal risks disclosed in the report, relevant certification materials, etc., and based on relevant materials. Organize the charts, summary tables and other information produced as attachments to the due diligence report to make the report more complete and comprehensive.

2.11 Feedback and revision

After the entrusted party has written the first draft of the intellectual property due diligence report, it should promptly provide it to the entrusting party and third-party institutions participating in the due diligence, and make adjustments and revisions based on the feedback.

2.11.1 After receiving the feedback from the entrusting party, the entrusted party shall fully verify and verify the problems mentioned in the feedback in the principle of objectivity, professionalism and prudence before deciding whether to adopt it and make corresponding revisions in the report.

2.11.2 After the entrusted party completes the first draft of the report, if the entrusted party finds or is informed that the relevant facts have changed, the entrusted party shall communicate with the entrusting party, conduct supplementary due diligence or revise the contents of the report as necessary, and re-evaluate the legal risks of the project.

2.11.3 After completing the first draft of the report, if the entrusted party finds that the information obtained during the due diligence process is genuine, doubtful, incorrect or incomplete, or that major key information is omitted or newly discovered, it shall supplement it in a timely manner. Conduct due diligence and update relevant content in the due diligence report in a timely manner.

2.12 Completion of the report

On the basis of a comprehensive and systematic arrangement and review of the due diligence work, combined with relevant feedback and revision opinions, the trustee finally completed the intellectual property due diligence report.

2.12.1 The intellectual property due diligence report shall indicate the reporting date and the deadline for obtaining relevant materials, and attach the signature and seal of the trustee, indicating that it is legally responsible for the due diligence report and its results.

2.12.2 After the intellectual property due diligence report is completed and before signing, the trustee shall arrange for writers and non-writers to prudently check and cross-check the due diligence report, to avoid clerical errors or format errors, which are inconsistent with the working papers Wait for mistakes.

2.13 Archive for future reference.

Intellectual property due diligence involves a lot of content and documents. It is necessary to completely preserve the work records formed during the process of issuing the intellectual property due diligence project report, as well as all documents and materials obtained during the work, for future inspection. And reflect the problems and deficiencies of the project work.

2.13.1 Intellectual property due diligence should establish a working paper system, which is an important evidence for judging whether the due diligence team is diligent and responsible.

2.13.2 The due diligence working papers filed for reference refer to the general term for various work records and important materials related to the project obtained and produced by the due diligence project members during the due diligence process.

2.13.3 The working papers shall truly, accurately and completely reflect the due diligence work carried out, and shall be able to cover and truthfully reflect all the data and materials of the entire intellectual property due diligence, as well as the analysis and evaluation of relevant personnel.

2.13.4 The production of working papers should be in standard format, clear records, concise and easy to understand, and clear in expression, and can be numbered, sorted and classified according to the logical sequence of project work, and a unified catalogue should be established for easy reference and verification. 2.13.5 All documents involved in the project should be archived for future reference, and the project members should be responsible for the filing and reference work. 2.13.6 All archived documents should fully reflect important information such as the name of the document, the content of the document, the source of the document, the handover personnel and the corresponding date, and be accompanied by the signature of the person in charge to form a strict entry and exit record.2.13.7 For the relevant information obtained and confirmed from a third party other than the target company, in addition to indicating the source of the information, the project members should also implement necessary investigation procedures to form corresponding investigation records and necessary signatures. 2.13.8 Before filing all documents for future reference, the working papers should be carefully checked. Once any omissions or other defects are found, they should be reported to the team leader in a timely manner, and corresponding remedial measures should be taken in a timely manner. 2.13.9 The storage period of all paper and electronic documents for project filing shall be no less than ten years.

Appendix 1: IP Due Diligence Flowchart

Appendix 2: IP Due Diligence Report Sample

Intellectual Property Due Diligence Report on ***Project

Foreword

Legal Responsibility Statement

***The Law Firm is entrusted with *** Conduct legal due diligence on the intellectual property status and risks of the project (hereinafter referred to as "the project"), and issue this report to the client (hereinafter referred to as the "client") who is responsible for this legal due diligence.

This report is based on the documents, explanations, interviews and other information provided by relevant personnel to our lawyers as of the date of this report, as well as information obtained by our lawyers through public inquiries.

This report is based solely on the information the firm has obtained so far from the information provided by the target company and the facts verified by the firm. Therefore, if further information becomes available to the Firm after the publication of this report, this report will need to be updated accordingly and may cause some of the conclusions contained therein to change.

The firm only conducts due diligence on this intellectual property from the perspective of Chinese law and at the request of the client. The analysis and suggestions made by the firm in this report are based on the laws and regulations that have been publicly released and are currently in force in China as of the date of this report.The firm does not express any opinion on investment decisions such as project feasibility, technical level, development prospects, etc., as well as other legal issues other than Chinese legal issues.

This report is issued to the client only for the purpose stated in this report. Without the prior written consent of the firm, this report shall not be used by any other unit or individual, nor shall it be used for any other purpose.

All China Lawyers Association

Operation Guidelines for Intellectual Property Due Diligence

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Contents

Chapter 1General Provisions

.1 The Concept of Intellectual Property Due Diligence

.2 The Meaning of Intellectual Property Due Diligence

.3 The Purpose of Intellectual Property Due Diligence

.3 The Purpose of Intellectual Property Due Diligence32

3 Basic Principles of Intellectual Property Due Diligence

.5 Methods of Intellectual Property Due Diligence

.6 Scope of Intellectual Property Due Diligence

.7 Specific Contents of Intellectual Property Due Diligence

Chapter II Operational Process of Intellectual Property Due Diligence

2.1 Operational Process概述

2.2 确定委托

2.3 立项组队

2.4 制定计划

2.5 前期调查

2.6 资料搜集

2.7 访谈走访

2.8 信息核查

2.9 与第三方机构沟通交流

2.10 报告Write

2.11 Feedback and revision

2.12 Report completed

2.13 Documents for reference

Appendix 1: IP Due Diligence Flowchart

Appendix II: IP Due Diligence Report Sample

Appendix III: IP Due Diligence Archive Checklist

Appendix IV: Common Websites for IP Due Diligence

Appendix V: IP Due Diligence Summary of common regulations for investigationIt cannot be used as a basis for judging whether lawyers are practicing due diligence and compliance, nor can it be used as a basis for investigating lawyers' responsibilities.

1.1 The concept of intellectual property due diligence

Intellectual property due diligence refers to entrusting a third-party professional organization or personnel to conduct a comprehensive investigation and systematic review of the intellectual property rights of the target company based on specific commercial needs, and provide investment for the entrusting party or expected investment. Non-litigation legal service activities that provide the target company with intellectual property information that may affect the expected business plan or other key factors, and ultimately form a professional summary report.

1.2 The significance of intellectual property due diligence

1.2.1 Solving the problem of information asymmetry , to obtain a comprehensive and systematic factual basis, so as to help make an objective and scientific assessment of the accurate value of the target company, facilitate business negotiations and facilitate the conclusion of transactions.

1.2.2 Discovering value and revealing risks

The entrusting party can conduct comprehensive value mining and risk assessment of the target company's intellectual property assets based on the results and reports of intellectual property due diligence, so as to better understand the actual value of the target company's intellectual property, And it is helpful to discover the potential legal risks that may hinder future commercial activities or transactions and the possible hidden costs, so as to avoid the increase of business plan or transaction risks and costs.

1.2.3 Adjust and improve the commercial plan Adjustment and improvement of business plan and transaction structure.

1.3 Purpose of intellectual property due diligence

From a macro perspective,The purpose of intellectual property due diligence is basically the same. There are two main reasons. One is to sort out the intellectual property status of the target company, including the content of rights, ownership of rights, source of rights, burden of rights, and value of rights, etc.; the second is to analyze the existence of intellectual property rights of the target company. Risk, including implementation risk, transaction risk, management risk, etc.

From a micro perspective, the purpose of intellectual property due diligence will vary with the business needs of the client. There are various business needs for conducting due diligence, and different target settings may affect the preparation of due diligence. and analysis focus. For example, if the purpose of the entrusting party's business plan is to obtain the technical employees and technical secrets of the target company, the intellectual property due diligence target setting should focus on the investigation of the employee's situation, and should investigate the target company's service invention achievements, technical personnel's Proportion and incentive methods, whereabouts of technical personnel after the commercial plan or transaction, etc.; if the reason for the entrusting party to conduct due diligence is to obtain the well-known or emerging brand of the target company, the objectives and content of intellectual property due diligence should be based on the objectives Whether the company's brand has been granted full rights protection is determined. Therefore, intellectual property due diligence personnel should fully communicate with the client to understand its expectations and objectives, so as to formulate scientific, reasonable and practical intellectual property due diligence objectives that are consistent with their business plans or transactions.

1.4 Basic principles of intellectual property due diligence Inconsistent, attempts to influence the judgment of the entrusting party. When accepting the entrustment of the entrusting party to carry out intellectual property due diligence on the target company, the entrusted party shall follow the principle of reasonableness and prudence, always maintain a prudent and cautious attitude, and be diligent and responsible.Have reasonable doubts about any data, information and oral statements made by relevant personnel and documents provided, carefully check and verify whether there are major differences or inconsistencies between the obtained information and the actual situation, and avoid excessive trust in the target company. Ignoring potential risks and affecting the authenticity of due diligence findings.

1.4.2 Confidentiality principle

In order to ensure the accuracy of intellectual property due diligence results, the trustee often needs the target company to disclose a large amount of information to it when conducting intellectual property due diligence, many of which involve the target company's operating secrets and technical secrets. , once the leakage will have a significant impact on its business activities. In order to reduce the concerns of the target company and reduce the obstruction of intellectual property due diligence, the entrusted party should always abide by the principle of confidentiality when conducting due diligence, and the information and documents obtained from the entrusting party, the target company and other relevant subjects due to due diligence, The relevant information and other content that you have learned must abide by the confidentiality obligation to prevent the leakage of information.

1.4.3 Principles of professionalism

Intellectual property itself is a professional field that integrates knowledge of law, technology, management, economy, etc. Therefore, intellectual property due diligence requires very high professionalism, requiring investigators to make full use of their own work experience , professional ability, professional sense of smell, etc. to scientifically and objectively judge the intellectual property situation of the target company. Therefore, the intellectual property due diligence team members should not only have a deep understanding of professional knowledge, but also select compound talents with inter-professional background as much as possible, rationally divide labor, complement each other's advantages, and strive to make informed decisions on the target company's intellectual property status and risks. Accurate scientific investigation.

1.4.4 Principle of Objectivity

The trustee generally conducts intellectual property due diligence on the target company based on the trustee's entrustment.However, this does not mean that the entrusted party should be subject to the position and requirements of the entrusting party or the target company when conducting intellectual property due diligence and make false or unrealistic due diligence results. The trustee shall adhere to the principle of objectivity in due diligence, take facts as the basis, conduct investigation and judgment in strict accordance with the provisions of relevant laws and regulations, and issue corresponding legal opinions, and shall not arbitrarily guess or make judgments without sufficient evidence.

1.5 Methods of intellectual property due diligence

1.5.1 Review of documents

Intellectual property due diligence often involves a large number of documents, and review and audit of documents is one of the most commonly used methods in due diligence. After obtaining the corresponding documents, the entrusted party should carefully check and compare the relevant documents to ensure the authenticity, integrity and authority of the documents, and conduct in-depth analysis of the documents to fully explore the real information hidden behind the documents. . Generally speaking, the documents mainly come from the following sources:

1, provided by the entrusting party or the target company voluntarily. In order to complete due diligence, the target company usually provides relevant intellectual property information on its own initiative or at the request of the entrusted party, such as intellectual property ownership certificates, intellectual property-related agreements, etc. The entrusting party should also disclose the relevant information to the entrusting party if it is aware of it.

2. Obtain publicly disclosed intellectual property information related to the target company through third-party channels such as public media and the Internet. For example, inquire about the legal status of intellectual property on the official intellectual property website and professional database, inquire about the litigation situation of intellectual property on the relevant court website, or learn about the latest operating trends of the target company's intellectual property through media reports, etc.

1.5.2 Interview

For some information or problems that are difficult to obtain from written materials, the trustee can obtain information in the form of interviews. The trustee should pay attention,The statements or explanations made by the interviewees in the interviews should not be trusted. The interview contents of the interviewees should be verified with each other and with other materials, and proof materials should be provided, and false statements should be excluded to ensure the authenticity of the interview contents. believable.

1. The content of the interview should not be the same or generalized. Instead, targeted interview content should be designed for interviewees at different levels and positions. At the same time, attention should be paid to designing questions that can confirm each other in the interview content of different objects.

2. Communicate face-to-face with relevant persons in charge of various levels and departments within the target company and employees in specific positions, and conduct interviews on certain specific issues to obtain a more comprehensive and in-depth understanding of the target company. At the same time, interviews can also be conducted with relevant customers, partners and even competitors of the target company when necessary.

1.5.3 Visit

In order to verify the integrity of the target company and the authenticity and credibility of the information provided by the trustee, the trustee can visit the industry association or government department where the target company is located, and learn about the current situation, development trend and goals of the industry by The company's actual competitiveness in the industry, the implementation and application of the target company's intellectual property rights in the industry, etc., to understand the actual value of the target company's intellectual property rights from the side.

1.5.4 On-site field investigation

On-site field investigation means that the entrusted party obtains an intuitive understanding of the target enterprise through on-site inspection and investigation of the R&D, production, sales and other links of the target enterprise. A memorandum should be prepared for reference after the on-site investigation. For target companies with different orientations, the location of their on-site field investigations should be focused. For example, for a research-oriented target company, investigators can focus on visiting its technology R&D department to learn about the technology R&D situation; a brand-oriented target company can focus on visiting its product sales site,Understand the competitiveness of the brand in the market, customer recognition and dependence on the brand, etc.

1.5.5 Correspondence

Correspondence means that the target company cannot submit the original or relevant materials for verification, or the relevant issues are important and it is necessary to ensure the authenticity, and the specific situation can be verified by sending a letter to the relevant unit for verification. A due diligence method.

At the same time, when the relevant information cannot be collected or the real situation cannot be fully understood for some issues, in order to reduce the risk of errors in due diligence, the target company can be required to submit all the materials and documents provided by the target company. Significant omission of declaration or letter of guarantee.

1.5.6 Non-public investigation

When necessary, the entrusted party may also adopt non-public investigation methods to obtain information about the target company's intellectual property rights without the target company's knowledge, such as by contacting the target company's affiliates, competition Opponents and business partners can obtain the required relevant information within the legal scope by asking people in the industry about the target company's situation, etc., and make a memorandum for future reference, so as to reduce the risk of being deceived by the target company's false information.

1.6 Scope of intellectual property due diligence

Different types of intellectual property require different contents to be investigated. The entrusted party can refer to the following general contents of intellectual property due diligence to carry out investigation work.And then combined with the actual situation and rights characteristics to conduct specific investigations.

1.6.1 Ownership status

The target company can acquire intellectual property rights or obtain intellectual property related rights and interests through original acquisition, subsequent acquisition, licensing, etc.

1. When the target company obtains the copyright of the work through independent creation, independent research and development of related technologies and improvement plans, etc., and applies for a patent to obtain the patent right, or obtains the trademark right through the independent design and the application for the exclusive right to register the industrial and commercial logo Under such circumstances, the trustee shall conduct a detailed review of the ownership of the target company’s intellectual property, including:

(1) the registration status on the intellectual property right certificate; Involving work/invention, commissioned work/invention, cooperative work/invention, whether there is a co-owner, etc;

2. When the target company acquires intellectual property rights through transfer, etc., it needs to pay attention to review:

(1) Whether the transfer contract signed between the intellectual property transferor and the transferee is true and legal;

(2) Intellectual property transfer procedures Whether it is legal and complete, and whether the transfer has been registered;

(3) whether the transferred intellectual property is valid;

(4) whether there is a situation in which the transfer of rights is prohibited in the intellectual property;

(5) whether the intellectual property has been licensed to others , in what way to allow others to use it, etc.

3. When the target company obtains the right to use intellectual property through licensing or licenses its intellectual property to others,When conducting due diligence, you need to pay attention to review the following:

(1) intellectual property is licensed or licensed by which way of exclusive license, exclusive license, or general license;

(2) intellectual property license or license How the scope of use is agreed, including the geographical scope, the scope of goods or services, and the scope of authority; ;

(5) Whether the license or the licensed intellectual property has expired or is about to expire;

(6) The license fee of the intellectual property;

(7) Whether the intellectual property license implementation contract has been registered in the relevant department;

(8) Whether there are clauses in the intellectual property license contract that may cause its termination due to changes in the target company, or any clauses that may have a significant impact on the expected business plan or transaction value, etc.

1.6.2 Legal status

's review of the legal status of intellectual property mainly includes:

(1) relevant information on the application, announcement, authorization, and invalidation of intellectual property rights;

(2) the valid status of intellectual property rights, the remaining protection period , payment status.

For trademarks or patents, in order to expand the scope of protection, the target company may also apply for a series of trademarks or patents.for an accurate assessment of the status of entitlements.

1.6.3 Rights content

Different intellectual property rights content is different:

1, copyright content includes publication, modification, signature, etc. personal rights and reproduction, distribution, rental, performance, broadcasting, adaptation, information network dissemination and other property rights;

2, patent rights include manufacturing, use, sales, promises to sell , import, etc.;

3, trademark rights include exclusive use rights, prohibition rights, license rights and other content.

When examining the intellectual property rights of the target company, the entrusted party should not only examine its actual control over the intellectual property rights, but also examine the rights content of its intellectual property rights, especially when the reason for the entrusting party to carry out intellectual property due diligence is to use the target company In the case of intellectual property rights, the entrusted party should focus on examining whether the content of its rights meets the business needs of the entrusting party, such as whether the scope of goods or services approved and registered by the target company’s trademark covers the scope of the entrusting party’s business activities.

1.6.4 Legal risk

The legal risk of intellectual property includes investigation of general litigation, litigation risk analysis and legal risk analysis when no litigation occurs.

1. Investigation of litigation situation: Investigate the litigation situation of the target company, understand the situation and progress of the case, and report the litigation risk according to the analysis opinions of the attorney and the target company. Does the operation have an impact and to what extent.

2. Litigation risk analysis: under the special request of the entrusting party, according to the stipulations of the entrustment contract , further analyze the litigation of the target company, and analyze the risks of the target company in the litigation based on the evidence of the case. To confirm the analysis opinions of the target company and its attorneys,Report truthfully.

3. Risk analysis of not involved in litigation: If the target company is not involved in litigation, if the entrusting party is more concerned about whether there are legal risks in its key intellectual property content, whether the target company will become the accused infringer, the intellectual property rights it enjoys Whether it will be claimed by others has an important impact on the implementation of the entrusting party's expected business plan or transaction. Then, according to the agreement of the entrustment contract, it is necessary to conduct a more in-depth investigation and analysis on whether the target company has the risk of ownership or infringement. Specifically, we can start from the following:

(1) Whether the intellectual property rights such as patents and copyrights enjoyed by the target company may be claimed by others, such as whether there is a competition restriction between the employed employees and the previous employer or the use of others’ trade secrets , technical secrets, etc; There is a conflict between the rights or the legal rights of others, such as whether there will be a conflict between the target company's trademark and others' trade names and domain names;

(4) Whether the target company's intellectual property rights may be revoked or invalid, such as trademarks, domain names Whether it is invalid or revoked due to squatting or other reasons, the patent is invalid because it does not meet the legal requirements for granting patent rights, etc.; How high is the possibility of property rights, what is the risk of infringement, what is the amount of compensation for infringement, whether there is a plan to avoid infringement, etc.

1.7 Specific content of intellectual property due diligence

Intellectual property covers a wide range of content,Including but not limited to: patents, trademarks, copyrights, trade secrets, know-how, network domain names related to enterprises/commodities, protection of appellations of origin, integrated circuit layout design exclusive rights , new plant variety rights and other rights related to intellectual property. However, general intellectual property due diligence is mainly aimed at: patents, trademarks, copyrights, trade secrets, etc.

1.7.1 Copyright due diligence

Copyright due diligence mainly combines relevant materials and information, and conducts due diligence on the following specific content in terms of copyright ownership, legal status, operation, litigation and legal risks enjoyed by the target company :

1. List of copyrighted works of the target company, which should include the certificate number, type of work, author, source of rights, attribution of rights, and restrictions on rights.

2, the completion date of each work of the target company, the date of publication, the remaining rights period, and whether the copyright registration has been handled .

3. If the target company has handled the copyright registration, it will mainly check the copyright registration certificate, verify it in combination with the website of the National Copyright Registration Center, and verify its copyright ownership through interviews and other methods.

4. If the target company has not handled the copyright registration, but claims to have the copyright of the work, it needs to check the relevant agreement, work creation manuscript, software code and related certification documents:

(1) If the target company obtains the copyright by hosting the creation, it needs to check the creation The draft, the minutes and resolutions of the meeting presided over the creation, the time certificate for the completion of the creation, the certificate for the first publication, etc. shall be reviewed; Content review;

(3) If the target company obtains copyright by cooperating with others,It is necessary to review the cooperation agreement, the right attribution agreement, etc.;

(4) If the target company obtains the copyright through personal job creation, it is necessary to review the content of the job work ownership agreement and the company's internal job creation incentive measures;

( 5) If the target company obtains the copyright through the transfer, it needs to review the copyright transfer agreement, the transfer fee payment certificate, the copyright registration change certificate, etc.; The time of publication and whether the country is a member state of the Berne Convention shall be reviewed.

5. If the target company obtains the right to use the copyright by means of a license, the copyright ownership certificate, the copyright license using the protocol, the license fee payment certificate, the scope and limitation of the licensed use, the license type and Review the terms of use and the remaining period.

6. If the target company invests the copyright as a price, it is necessary to review the conditions of the investment object, the relationship between the investment object and the target company, and the reasonableness of the copyright price in the investment agreement.

7. If the target company licenses or sublicenses the copyright to others, it is necessary to review the license agreement, license term, license type, license scope and restrictions, and license fee payment certificate.

8. If the target company pledges the copyright,It is necessary to review the copyright pledge agreement, pledge purpose, duration, and copyright pledge register.

9, the litigation and arbitration of the target company related to copyright or copyright agreement.

10, the non-disclosure agreement between the target company and the core R&D creators, the content stipulated in the non-compete agreement, and the distribution of non-compete compensation.

11. The target company's internal rules and regulations for copyright management and protection, as well as relevant confidentiality measures for core copyrights.

12. The work history of the core R&D and creative personnel of the target company and the labor contract , the non-disclosure agreement, the content of the non-compete agreement and the distribution of non-compete compensation.

13. The specific content of each work of the target company, whether there is a risk of infringing others' prior copyrights (including adjacent rights ) or other prior rights such as the right to name and portrait, or the risk of unfair competition.

The aforementioned items 10-13 depend on the specific needs of the project and the service content agreed with the client, whether due diligence is required.

1.7.2 Trademark due diligence

Trademark due diligence mainly combines relevant materials and information, aiming at the registration application, trademark ownership status, legal status, operation status, litigation situation and legal risks of the registered trademark of the target company. We will conduct due diligence on the following specific content:

1, list of target company’s trademarks, which should include registration type, trademark number, trademark style, application date, authorization date, renewal status, content of goods or services approved for registration, transfer status, Licensing, etc.

2. If the target company's trademark has been approved for registration,It is necessary to check the registration category, trademark number, trademark style, application date, authorization date, renewal status, and the content of goods or services approved for registration for each trademark certificate and notification of changes and renewals. Check the trademark status.

3. If the target company's trademark has not been approved for registration, then:

(1) If the target company's trademark has been submitted for registration but has not been approved for registration, the notice of acceptance of the trademark registration application, the payment certificate for the registration application fee, and the official statement during the application process are required. Approval documents and other contents shall be reviewed in combination with China Trademark Network. , the actual use of the trademark, the well-known situation, etc.

4. If the target company applies for registration of an international trademark, it needs to review the international trademark ownership certificate, application documents, registration application category, and legal provisions of the application country for trademark registration application.

5. If the target company obtains trademark application rights or trademark rights through entrusted design or cooperative design, it is necessary to review the entrustment agreement, cooperation agreement and the content of the ownership of rights.

6. If the target company obtains the trademark application right or trademark right through transfer, it needs to review the transfer agreement, transfer registration certificate, trademark change certificate, transfer fee payment certificate, etc.

7. If the target company obtains the right to use the copyright by means of license, it needs to agree on the trademark ownership certificate, license agreement, license fee payment certificate, the scope and restrictions of the licensed use, the type of license and the term of use and the remaining period, the registration certificate of the license contract, the agreement on the common use of the trademark, etc.

8. If the target company invests the trademark rights as a price,It is necessary to review the situation of the investment object, the relationship between the investment object and the target company, and the reasonableness of the price of the trademark right in the investment agreement.

9. If the target company licenses or sublicenses the trademark rights to others, it needs to review the license agreement, license term, license type, license scope and restrictions, license fee payment certificate, and contract filing status.

10. If the target company pledges the trademark right, it needs to review the copyright pledge agreement, pledge purpose, time limit, and trademark pledge register.

11. The litigation and arbitration of the target company related to trademark rights or trademark rights agreements.

12, whether the target company's trademark is still distinctive, whether there is a risk of being weakened or a generic name called an approved registration category, etc.

13. Review whether the target company has the risk of revoking its registered trademark if it is not used for 3 consecutive years.

14. Examining whether there is a risk of infringing the lawful prior rights of others for the trademarks that have been used by the target company but have not been approved for registration.

The aforementioned items 12-14 depend on the specific needs of the project and the service content agreed with the entrusting party, whether due diligence is required.

1.7.3 Patent due diligence

Patent due diligence mainly combines relevant materials and information to review the target company's relevant patent application authorization, patent ownership status, legal status, operation, litigation and legal risks. Carry out due diligence on the following specific content:

1, list of patents of the target company, the content should include the type, name, application number, application date, publication (吿) number, public (吿) date, authorization date, and validity period of the patent and patent application. , legal status, assignment, licensing, etc.

2, the target company has authorized patents,The patent certificate , the copy of the patent register, the authorization text, the validity period, the annual fee payment certificate, etc. need to be examined.

3. For patents that have been submitted by the target company but have not yet been authorized, it is necessary to review the official documents such as the receipt of application documents, the notice of acceptance of patent application, the notice of entry into substantive examination, and the notice of examination opinion, as well as payment vouchers.

4. If the target company obtains the patent application right or patent right through its own research and development, it is necessary to investigate the sources of materials and technologies used in the research and development, and examine the content of the patent right certificate and technical research and development record documents.

5. If the target company obtains the patent application right or patent right through entrusted development or cooperative development, it is necessary to review the entrusted development agreement, cooperative development agreement, relevant clauses or agreements on the ownership of rights, etc.

6. If the target company obtains a patent right through a personal service invention, it is necessary to review the service invention ownership agreement, the work experience of the inventor or designer, and the company's internal service invention management regulations.

7. If the target company obtains the patent application right or patent right through transfer, it is necessary to review the transfer agreement, transfer registration certificate, patent bibliographic change certificate, change announcement, and transfer fee payment certificate.

8. If the target company obtains the right to use the patent by means of license, it needs to verify the patent ownership certificate, license agreement, license contract record registration certificate, license fee payment certificate, license scope, license type and Review the terms of use, etc.

9. If the target company invests the patent application rights or patent rights as a price, it is necessary to review the patent ownership certificate, the patent right evaluation report , and the investment agreement.

10. If the target company licenses or sublicenses the patent rights to others,It is necessary to review the patent ownership certificate, license agreement, license fee payment certificate, license period, license type, license scope, contract record and other contents.

11. If the target company pledges the patent right, it needs to examine the patent ownership certificate, pledge agreement, patent pledge registration certificate, payment of annual fee, etc.

12. The litigation and arbitration of the target company related to patent rights or patent rights agreements.

13. The non-disclosure agreement between the target company and the core R&D personnel, the content of the non-compete agreement and the distribution of non-compete compensation.

14, the internal rules and regulations of the target company's patent management and protection, and the relevant confidentiality measures for the core technology in the process of research and development.

15. The work history of the core R&D personnel of the target company and the content stipulated in the labor contract, non-disclosure agreement, non-compete agreement and the payment of non-compete compensation with their original units.

16. The stability of the target company's patents, including but not limited to whether the granted patent is subject to reexamination or invalidation procedures, whether the patent (application) belongs to common knowledge and free technology in the technical field, and whether it may be previously disclosed.

17. The target company's competitors' products and patents, and analyze whether the competitor's products have the possibility of infringing the target company's patent rights, or whether the target company's products (especially core products) have the possibility of infringing the competitors' patent rights.

The above-mentioned items 13-17 depend on the specific needs of the project and the service content agreed with the client, whether due diligence is required.

1.7.4 Due diligence on trade secrets

Trade secrets include business secrets and technical secrets.Investigate including but not limited to the following:

1, the target company's commercial secret ownership certification materials, such as technical information or business information formation records, etc.

2. The expression and usage of the target company's trade secrets.

3. The implementation of the company's internal trade secret management system and the implementation of trade secret confidentiality measures, such as whether it has signed confidentiality agreements with employees, non-compete agreements Scope of secrecy, confidentiality obligations, etc.

4. The target company's labor contract involving trade secret R&D personnel, the agreement and incentive measures for job creation or job invention, etc.

5. The work history of the core R&D personnel of the target company and the contents stipulated in the labor contract, non-disclosure agreement, non-compete agreement and the payment of non-compete compensation with their original units.

6. If the target company licenses its proprietary technology to the outside world, it needs to review the license agreement, license term, license type, license scope and restrictions, license fee payment certificate, etc.

1.7.5 Domain name due diligence

In view of the fact that most companies have their own websites, and domain names are the basis for holding websites, and disputes over domain names and trademark rights are frequent, it is necessary to conduct due diligence on domain names to detect and prevent risk.

domain name due diligence should be combined with relevant materials and information, including but not limited to the following:

1, target company domain name and list of corresponding websites,It should include the domain name registration time, website opening time, website name, website filing subject, and the relationship between the filing subject and the target company, etc.

2, target company domain name registration application documents, domain name registration certificate, record information and other ownership certification materials.

3. Time, protection period, remaining period and renewal of the target company's domain name application for registration.

4. The use and transfer of the target company's domain name, including proof of use, transfer agreement, proof of rights change, etc.

5. Litigation, arbitration, etc. of the target company related to the domain name or the domain name agreement.

6. Whether the domain name of the target company has been squatted.

7. Whether the target company's domain name conflicts with other people's legal prior rights such as prior trademark rights, well-known service unique names, etc., and whether there are reasonable reasons for using such domain names and proof materials, etc.

The aforementioned items 6-7 depend on the specific needs of the project and the service content agreed with the client, whether due diligence is required.

Chapter II Operational Process of Intellectual Property Due Diligence

2.1 Operational Process Overview

The necessity and importance of intellectual property due diligence are becoming more and more prominent, and the breadth and depth of due diligence are gradually expanding. Therefore, the knowledge corresponding to specific projects The scope of title due diligence varies. However, in general, intellectual property due diligence is generally carried out according to the following operating procedures:

2.1.1 Sending a demand: the entrusting party will solicit the entrusted party through targeted inquiry or open bidding due to the need for intellectual property due diligence in the relevant project;

2.1.2 Submit quotation: Whether it is in the form of directional inquiry or open bidding, interested intellectual property due diligence units should submit a written quotation or service plan to the entrusting party; actual needs,Select an intellectual property due diligence service unit according to the quotation, sign an entrustment contract, and determine the entrustment relationship and due diligence content;

2.1.4 Project establishment and team formation: The entrusting party and the entrusting party respectively set up the intellectual property due diligence project, and each selects the appropriate

2.1.5 Formulation of a plan: the entrusted party formulates a work plan and a list of due diligence contents according to the actual situation and time node of the project;

2.1.6 Preliminary investigation: the entrusted party conducts an investigation based on the preliminary information provided by the entrusting party and the Internet public channels. Pre-investigation of the due diligence objectives involved in the project;

2.1.7 Data collection: The entrusted party draws up a list of data based on the preliminary investigation and actual needs, and collects data through the methods provided by the consignor, by the entity under investigation, and by self-collection;

2. 1.8 Interviews and visits: Based on the actual needs of the project, the entrusted party makes an interview list for the actual controllers, shareholders, senior managers, and core technical personnel of the target unit, and obtains relevant information through interviews and visits;

2.1.9 Verification information: for the entrusting party, The information provided by the target unit and the content learned from the interviews require the relevant units and personnel to make real and legal commitments. At the same time, the trustee needs to verify the relevant information and materials through credible channels such as government departments and third-party agencies;

2. 1.10 Communicate with third-party institutions: During the process of intellectual property due diligence, under the organization of the entrusting party, it is also necessary to maintain good communication with third-party institutions such as appraisal agencies and accountants, such as the arrangement of entry, data collection, interview arrangements and even In the process of information verification and other processes, the parties shall communicate and exchange in a timely manner the parts that overlap or may have mutual influence;Based on this, draft and write intellectual property due diligence report;

2.1.12 Feedback and revision: make necessary adjustments and revisions according to the feedback from the entrusting party and related institutions on the draft of the intellectual property due diligence report;

2.1.13 Supplementary due diligence: in the benchmark If there is a change in the time node such as the day, the main intellectual property target changes, or it is really necessary, carry out supplementary intellectual property due diligence according to the actual needs of the project;

2.1.14 Completion of the report: combined with intellectual property due diligence (including supplementary due diligence) According to the results of the entrusting party, refer to the feedback from the entrusting party, make final adjustments, and complete the intellectual property due diligence report;

2.1.15 Archive for future reference: In accordance with legal regulations, contractual agreements and internal requirements of the unit, further check the working papers, due diligence process of intellectual property due diligence The report shall be archived for future reference.

2.2 Determining the entrustment of

With the increasing emphasis on intellectual property, the scope and degree of due diligence requirements for intellectual property will inevitably change accordingly. According to the different entrusting subjects, purposes, and investigation objectives of intellectual property due diligence, the content that needs to be paid attention to in the process of determining the entrusting relationship is also very different.

2.2.1 The entrusting subjects of intellectual property due diligence are diverse, and different subjects have different purposes and needs for due diligence. However, due to the particularity of intellectual property rights, when the entrusting entity issues the demand for intellectual property due diligence, its own content and direction of due diligence may not be accurate.

2.2.2 When the professional intellectual property due diligence team receives the due diligence request from the entrusting party, it shall conduct a conflict of interest search on the matters to be entrusted in advance; Due diligence project characteristics, fully communicate with the entrusting party to understand the purpose of its intellectual property due diligence,Determine its actual needs and lay the foundation for the subsequent formulation of service plans and quotations.

2.2.3 When formulating a service plan, the identity of the client and the characteristics of the project should be fully considered, and service content that meets the actual needs of due diligence should be formulated in a targeted manner. For example, for intellectual property due diligence in the process of listing for the final issue of legal opinions, when formulating service content, more attention should be paid to the comprehensive investigation of the target entity’s intellectual property ownership and litigation; When investors conduct due diligence on intellectual property rights in the investment process of target companies, they also need to focus on the stability of intellectual property rights and the investigation and analysis of infringement risks.

2.2.4 Before formulating a service plan, based on the project information provided by the entrusting party, conduct a preliminary search on the main business and intellectual property ownership of the investigation target through public channels such as the Internet, and predict the workload of due diligence, so as to better Targeted development of service content and service quotations.

2.2.5 In view of the professionalism and particularity of intellectual property rights, when formulating service plans, taking into account the characteristics of the entrusting party and the affordability of expenses, it is also possible to serve the entrusting party on the basis of meeting the basic requirements of intellectual property due diligence for the project. Provide a variety of solutions for basic service content and in-depth service content (such as intellectual property rights stability, infringement risk or conflict with others' prior rights, etc.), and clarify to the entrusting party that different service content can ultimately obtain different levels of information for The entrusting party chooses according to its actual situation.

2.2.6 Regardless of whether the entrusting party is in the form of directional inquiry or open tendering, the interested intellectual property due diligence team should submit a written quotation or service plan to the entrusting party. can be adjusted accordingly,However, it should at least include a brief analysis of the relevant project, the scope and content of the proposed due diligence, and the corresponding quotation for the corresponding service content.

2.2.7 After the entrustment is confirmed, a written entrustment contract and power of attorney should be signed with the entrusting party on the intellectual property due diligence of the target project. The main points of the entrustment contract should include the basic information of the target company, the purpose of due diligence and the scope of services , delivery time and requirements of work results, service fees, rights and obligations of both parties, confidentiality agreement and other substantive content.

2.3 Forming a project team

After the entrustment relationship is determined, the entrusting party and the entrusting party shall establish the project separately, and jointly set up a project team to carry out intellectual property due diligence in a timely manner.

2.3.1 After the entrustment relationship is determined, the entrusting party and the entrusting party shall establish a project internally, arrange personnel and follow-up work, make a plan for the expected expenses, apply in advance and arrange for payment.

2.3.2 Intellectual property has the characteristics of being professional and interdisciplinary. The team members required for due diligence around intellectual property must also be professional and complex. Therefore, the entrusting party and the entrusting party should be organized according to the actual situation and needs of the project. The members of the project team can generally include management personnel, technical personnel, lawyers who focus on legal affairs, lawyers with technical background and other assistants, etc. designated by the client.

2.3.3 The project team shall designate a person in charge (generally the manager designated by the entrusting party) and a contact person; if the entrusted party assigns multiple people to participate in the intellectual property due diligence project, the contact person and the contact person of the entrusting party shall be responsible for the work. Arrange and connect.

2.3.4 According to the main content of intellectual property due diligence, the corresponding personnel assigned by the entrusted party will also be different. If the main investigation content is patented technology, lawyers with technical background shall be assigned to participate.Ideally, attorneys with similar technical backgrounds as the patent being investigated should participate.

2.3.5 Before determining the members of the project team, the trustee shall conduct self-examination on the proposed participants to ensure that the proposed participants and their close relatives have no conflict of interest or interest relationship with the project, and require the participants to sign a letter of commitment and Confidentiality Agreement.

2.4 Formulating a plan

After the project team is formed, a work plan should be formulated according to the background, specificity and requirements of the project, combined with various time nodes, and the personnel and the work content of each stage should be reasonably arranged.

2.4.1 Target companies with different orientations in different projects (including but not limited to brand-oriented, technology-oriented, entertainment-oriented and comprehensive, etc.) have large differences in the proportion of intellectual property rights objects, and different project backgrounds (Including but not limited to mergers and acquisitions, listing, overseas investment, intellectual property securitization, etc.) The content and direction of intellectual property due diligence are also quite different. Therefore, when formulating a work plan, it is necessary to fully consider the specific characteristics of a specific project, grasp the key content of the work, reasonably estimate the working time, and arrange suitable personnel according to the background requirements.

2.4.2 The entrusted party shall designate the person in charge of the project and take full responsibility for the due diligence work. The members participating in the project shall divide the work of the intellectual property due diligence content item by item, and sign the list of division of work to clarify the responsibilities.

2.4.3 The entrusted party shall fully communicate with the entrusting party and relevant agencies and other time points when formulating the work plan, and arrange various tasks reasonably; Actively communicate with the entrusting party, ask the entrusting party to coordinate, and plan in advance the time for entry, personnel interviews and information provision.

2.4.4 After the work plan has been formulated, it shall be sent to the client for review.For the opinions of the entrusting party on the work content and time arrangement, try to cooperate with the amendment, and if it is unable to cooperate with the amendment, it shall explain to the entrusting party.

2.4.5 After the work plan is formulated, if there is a change in the time node such as the base date or other major changes in the project, the work plan should be revised in time to ensure that the project process is not affected as much as possible.

2.5 Preliminary investigation

Before formal due diligence, it is recommended that the entrusted party conduct preliminary investigation on the basic information of the target company, so as to carry out the subsequent preparation of the target company's document supply list and interview outline and the verification of key materials.

2.5.1 Investigate industrial and commercial information: The trustee can inquire about corporate credit information through public channels, including business license information, information on shareholders and capital contributions, information on existence and change, information on branch offices, information on administrative licensing and punishment, information on dishonesty, etc.; The people's court publishes documents to inquire about the litigation-related information of the target company.

2.5.2 Investigate business information: learn about the target company's production and operation status, R&D status, main business and products through the target company's official website; learn about the target company's competitive advantages, the popularity of the company and related products and services through public media reports, etc. .

2.5.3 Investigate intellectual property information: query the target company's patent, trademark, copyright and domain name application, authorization, registration, registration, license, transfer and pledge information through the national public website or professional intellectual property database.

2.6 Data collection

After completing the preliminary investigation, the entrusted party should integrate the information collected by itself and the information provided by the entrusting party, sort out the project background and clarify the due diligence objectives again. Based on this goal, combined with the basic information and business model of the target company, a list of documents to be provided by the target company is drawn up.Ask them to provide appropriate information and verify.

2.6.1 Document supply list: In addition to listing the material names, the document supply list prepared by the entrusted party should also provide necessary explanations for professional documents or industry terms, and at the same time, it should clarify the method of supplying materials, such as whether to show the original, and the copies to be kept. The number of copies and the form of official seal, etc.

2.6.2 Industrial and commercial information: The trustee shall require the target company to present or retrieve the original industrial and commercial registration information file of the target company, which includes the business license, legal representative's identity certificate, application for establishment registration, shareholder identity certificate and capital contribution ratio , Articles of Association, capital verification report, capital contribution, office space certificate, bank account, previous changes, board information, branches, foreign investment, etc. It should be noted that the entrusted party needs to go through the entrustment procedures with the target company to obtain the file from the local administration for industry and commerce. In addition, the target company may also be required to provide other documents such as personnel organization charts as needed.

2.6.3 Administrative examination and approval: The entrusted party searches the relevant laws and regulations, policy regulations, industrial policies and other regulatory provisions of the target company's industry based on the preliminary investigation information to determine whether its business scope has special industry or industry guidance restrictions . For industries that require administrative approval or franchising, relevant approval documents, filing documents, etc. shall also be required.

2.6.4 Intellectual property: The trustee shall require the target company to present all its intellectual property certification documents, including but not limited to the notice of acceptance of patent application, notice of rejection, notice of grant of patent rights, patent certificate, patent issued by the State Intellectual Property Office Registration form, payment information, etc.; notice of acceptance of trademark application, notice of preliminary trial announcement, trademark registration certificate, renewal certificate, etc.; copyright registration application documents, copyright registration certificate; domain name filing information, etc. In particular, it should be noted that the target company has submitted an application or obtained authorization,However, the supporting documents of the information that has not been announced by the national publicity system.

2.6.5 Technical data: The entrusted party may request the target company to provide other technical data that are not protected in the form of intellectual property rights under Item 2.6.4, especially in the form of patents, such as data on scientific and technological projects under development, completed, and expected to be carried out, and technical achievements Materials, technology award certificates, project establishment and evaluation reports in the national science and technology system, completion status of technology transformation implementation projects, as well as the target company's management and confidentiality rules, regulations and agreements involving related technologies.

2.6.6 Relevant agreements: The trustee shall require the target company to provide all intellectual property related agreements, including but not limited to intellectual property or technology licensing contracts, transfer contracts, development contracts, etc., as well as the validity, filing and performance of the contracts.

2.6.7 Data summary: After collecting the data, the entrusted party should summarize and organize the data in a timely manner, indicating the source, type, whether the data is original, whether there is any relationship or conflict between the data and other basic information, and if necessary, make supplementary due diligence and Develop a list of supplementary information.

2.7 Interviews and visits

The trustee may directly contact the target company and its personnel by means of interviews and visits to understand or verify undisclosed or conflicting information.

2.7.1 The entrusted party shall fully communicate with the target company the purpose and significance of the due diligence investigation based on the requirements of the entrusting party and the project, reasonably determine the interviewee and arrange the interview time, so as to obtain the cooperation, understanding and cooperation of the target company and the interviewee. trust.

2.7.2 Before conducting the interview, the entrusted party shall issue a confidentiality commitment letter to the target company and the interviewee in advance, promising to undertake the confidentiality obligation of the target company's business information and technical information that has not been publicly disclosed during the interview and due diligence, so as to ensure The target company and interviewees fully disclose relevant information.

2.7.3 After identifying the interviewee,The entrusted party shall draw up an interview outline based on the position and position information of the interviewee, and especially shall focus on interviewing the information that has not been publicized or fully disclosed through public channels, and verify the conflicting information in the materials. The following exemplifies the interview content that should be paid attention to when conducting interviews with people in different positions:

(1) Company managers: First of all, the target company's managers should understand the general situation of the target company, such as operation status, production and operation mode, industry reputation, competition power and major competitors, litigation-related information, core intellectual property rights and/or technologies, research and development projects, research and development results, research and development plans, and research independence. Secondly, interviews should be conducted on the work experience of these personnel, whether they have signed confidentiality agreements and non-compete agreements, etc.; achievements, R&D plans, and research independence. At the same time, it is necessary to understand the position, specific work content, work experience, work results, etc. of the technical personnel to analyze whether the target company's intellectual property rights have the risk of ownership disputes.

2.7.4 Interview transcripts: The entrusted party shall assign at least two interviewers to conduct individual interviews with the interviewees, and make interview transcripts according to the interview contents. The interviewers and interviewees shall sign the transcripts after confirming that they are correct. The interview transcript should be attached with the interviewee's identity certificate and labor contract as attachments, and the interview process should be photographed and kept.

2.8 Information verification

After obtaining sufficient information through preliminary investigation, data collection, interviews, etc., the entrusted party needs to organize, summarize and screen the data to verify the authenticity and relevance of the data.

2.8.1 First of all, it should be emphasized that all relevant information should be subject to the information publicly disclosed by the relevant administrative departments.The information disclosed by the third-party website and the materials and interview records provided by the target company are used as confirmation or supplement. For information whose authenticity is doubtful, the entrusted party may verify with the relevant administrative department and request the administrative department to issue corresponding certification documents.

2.8.2 If the relevant information stated by the target company in the interview cannot be confirmed, it should be required to issue a letter of commitment to ensure the authenticity of the information and assume corresponding responsibilities. In order to ensure the accuracy and credibility of the data, it is recommended that the entrusted party conduct interviews with different interviewees about the same content, or use multiple methods to verify each other and obtain supporting materials.

2.9 Communicate with third-party agencies

In a due diligence project, intellectual property is often only one part of the content. In addition to intellectual property due diligence service units, the entrusting party will also entrust securities companies, accountants, asset appraisal agencies, auditors Institutions and other intermediaries work together to conduct due diligence on other content. At this time, the trustee should actively maintain communication with third-party agencies during the due diligence process to ensure the authenticity and consistency of the information.

2.9.1 When the entrusted party and the third-party agency jointly carry out due diligence work, the investigation content may overlap or overlap. Due to the different focus and purpose of the investigation, the angle of each party's exploration and analysis of the problem will be different. Therefore, it is recommended to During the due diligence process, the entrusted party regularly summarizes the conflicting or questionable information and related risks exposed during the investigation process, and regularly holds meetings with third-party institutions to verify each other’s problems, express their opinions and listen to others’ professional opinions. .

2.9.2 For some inter-professional or inter-disciplinary issues, such as the financial issues of the target company, the valuation of intellectual property assets, etc., the trustee should communicate with professional third-party institutions and refer to their professional opinions.in order to detect potential risks in time.

2.10 Report writing

After the investigation and analysis work is completed, the trustee shall integrate the contents of the investigation work, the analysis of the data involved in the investigation, the intellectual property issues found and the corresponding handling opinions, etc., and write them down in writing Report.

2.10.1 The intellectual property due diligence report should be targeted and consistent with the actual needs of the entrusting party and the purpose of conducting due diligence. The language of the report should be professional and concise, logically clear, coherent, and focused.

2.10.2 The preface of the intellectual property due diligence report shall include the following contents: statement of purpose of due diligence report and limitation of liability, interpretation of relevant terms, scope of entrustment and due diligence, and background of due diligence.

2.10.3 The main body of the due diligence report should include the following: the first part is the statement of facts, including the work plan and completion status; the basic information of the relevant personnel of the target company participating in the due diligence investigation, the intellectual property rights of the target company and its competitors, and relevant industry fields The second is the specific legal provisions applicable to the analysis of the relevant facts; the last is the legal risk analysis and recommendation part. Disclose the existing legal risks and provide professional handling opinions or solutions accordingly.

2.10.4 The due diligence process will involve a large amount of documents and materials. The entrusted party can use the list of materials provided by the entrusting party and the target company, documents that play an important role in the legal risks disclosed in the report, relevant certification materials, etc., and based on relevant materials. Organize the charts, summary tables and other information produced as attachments to the due diligence report to make the report more complete and comprehensive.

2.11 Feedback and revision

After the trustee has written the first draft of the intellectual property due diligence report,It should be provided to the entrusting party and third-party institutions participating in due diligence in a timely manner, and adjustments should be made based on feedback.

2.11.1 After receiving the feedback from the entrusting party, the entrusted party shall fully verify and verify the problems mentioned in the feedback in the principle of objectivity, professionalism and prudence before deciding whether to adopt it and make corresponding revisions in the report.

2.11.2 After the entrusted party completes the first draft of the report, if the entrusted party finds or is informed that the relevant facts have changed, the entrusted party shall communicate with the entrusting party, conduct supplementary due diligence or revise the contents of the report as necessary, and re-evaluate the legal risks of the project.

2.11.3 After completing the first draft of the report, if the entrusted party finds that the information obtained during the due diligence process is genuine, doubtful, incorrect or incomplete, or that major key information is omitted or newly discovered, it shall supplement it in a timely manner. Conduct due diligence and update relevant content in the due diligence report in a timely manner.

2.12 Completion of the report

On the basis of a comprehensive and systematic arrangement and review of the due diligence work, combined with relevant feedback and revision opinions, the trustee finally completed the intellectual property due diligence report.

2.12.1 The intellectual property due diligence report shall indicate the reporting date and the deadline for obtaining relevant materials, and attach the signature and seal of the trustee, indicating that it is legally responsible for the due diligence report and its results.

2.12.2 After the intellectual property due diligence report is completed and before signing, the trustee shall arrange for writers and non-writers to prudently check and cross-check the due diligence report, to avoid clerical errors or format errors, which are inconsistent with the working papers Wait for mistakes.

2.13 Archive for future reference

Intellectual property due diligence involves a lot of content and documents, it is necessary to completely preserve the work records formed in the process of issuing the intellectual property due diligence project report, as well as all documents and materials obtained during the work.In order to check and reflect the problems and deficiencies of the project work.

2.13.1 Intellectual property due diligence should establish a working paper system, which is an important evidence for judging whether the due diligence team is diligent and responsible.

2.13.2 The due diligence working papers filed for reference refer to the general term for various work records and important materials related to the project obtained and produced by the due diligence project members during the due diligence process.

2.13.3 The working papers shall truly, accurately and completely reflect the due diligence work carried out, and shall be able to cover and truthfully reflect all the data and materials of the entire intellectual property due diligence, as well as the analysis and evaluation of relevant personnel.

2.13.4 The production of working papers should be in standard format, clear records, concise and easy to understand, and clear in expression, and can be numbered, sorted and classified according to the logical sequence of project work, and a unified catalogue should be established for easy reference and verification. 2.13.5 All documents involved in the project should be archived for future reference, and the project members should be responsible for the filing and reference work. 2.13.6 All archived documents should fully reflect important information such as the name of the document, the content of the document, the source of the document, the handover personnel and the corresponding date, and be accompanied by the signature of the person in charge to form a strict entry and exit record. 2.13.7 For the relevant information obtained and confirmed from a third party other than the target company, in addition to indicating the source of the information, the project members should also implement necessary investigation procedures to form corresponding investigation records and necessary signatures. 2.13.8 Before filing all documents and materials for future reference, the working papers should be carefully checked. Once any omissions or other defects are found, they should be reported to the team leader in time.and take appropriate remedial measures in a timely manner. 2.13.9 The storage period of all paper and electronic documents for project filing shall be no less than ten years.

Appendix 1: IP Due Diligence Flowchart

Appendix 2: IP Due Diligence Report Sample

Intellectual Property Due Diligence Report on ***Project

Foreword

Legal Responsibility Statement

***The Law Firm is entrusted with *** Conduct legal due diligence on the intellectual property status and risks of the project (hereinafter referred to as "the project"), and issue this report to the client (hereinafter referred to as the "client") who is responsible for this legal due diligence.

This report is based on the documents, explanations, interviews and other information provided by relevant personnel to our lawyers as of the date of this report, as well as information obtained by our lawyers through public inquiries.

This report is based solely on the information the firm has obtained so far from the information provided by the target company and the facts verified by the firm. Therefore, if further information becomes available to the Firm after the publication of this report, this report will need to be updated accordingly and may cause some of the conclusions contained therein to change.

The firm only conducts due diligence on this intellectual property from the perspective of Chinese law and at the request of the client. The analysis and suggestions made by the firm in this report are based on the laws and regulations that have been publicly released and are currently in force in China as of the date of this report. The firm does not express any opinion on investment decisions such as project feasibility, technical level, development prospects, etc., as well as other legal issues other than Chinese legal issues.

This report is issued to the client only for the purpose stated in this report. Without the prior written consent of the firm, this report shall not be used by any other unit or individual, nor shall it be used for any other purpose.

Definitions of related terms

In this report,除非文义另有所指，下列用语具有下述涵义：

简称	指	全称
	指
	指
	指

正文

一、本项目知识产权尽职调查的背景

二、本所工作计划及工作内容

3. Basic information of the participants in this project

4. Scope of intellectual property due diligence in this project

5. Basic intellectual property status of the target company

6. Legal risk analysis and suggestions

7.Appendix

Appendix

Appendix document list

Appendix 1 : Interview photos

Attachment 2: Interview records

Attachment 3: Labor contracts of the survey respondents (confidentiality agreement, non-compete agreement)

Attachment 4: Intellectual property documents: including but not limited to patent certificates (including patent specifications, patent claims , important documents issued by administrative agencies, etc.), copyright registration and modification documents,Trademark certificate and change notice, domain name registration certificate, etc.)

Attachment 5: Intellectual property related honors

Attachment 6: Intellectual property contract

Attachment 7: Letter of commitment/guarantee名称

文件主要内容

是否原件

交接人及日期

备注

.授权手续

1.1

利益冲突检索

授权手续及保密承诺

1.2

委托合同

1.3

保密协议及承诺书

.目标公司基本信息

.著作权

.商标权

. Patent rights The time of obtaining the right, the method of obtaining it, the term of protection, and the payment of annual fees项权利

.商业秘密及管理

. 域名

. Information about litigation .3

Appendix 4: Commonly used websites for intellectual property due diligence

1. Commonly used websites for corporate information inquiry:

1, National Enterprise Credit Information Publicity System: http://www.gsxt.gov.cn /index.html;

2, Tianyancha: https://www.tianyancha.com/;

3, Qixin Insurance: http://www.qixin.com/;

4, Qixinchacha: http://www .qichacha.com;

5, National Organization Code Management Center: www.nacao.org.cn.

2.1	营业执照	目标企业的成立背景、登记注册时间、历史沿革、经营范围、股权结构、对外投资、业务经营等基本信息
2.2	章程
2.3	工商登记资料
2.4	员工名册	研发机构体制及设置、研发人员构成及资历等
2.5	财务报表	研发费用及投入情况
3.1	著作登记证书、时间戳等	著作权的权属情况（是否涉及职务作品、委托作品、 Cooperative works, etc.); the time of initial acquisition of copyright, the method of acquisition, and the term of protectionml17
3.3	作品清单	著作权的权利类型等
3.4	他项权利证书	是否存在他项权利
4.1	商标注册证、核准转让注册商标证明等	商标的权属情况、取得方式(such as: original acquisition, subsequent acquisition, etc.), acquisition time, protection period, renewal fees, etc不被核准注册的情况等
4.3	他项权利证书	是否存在他项权利
4.4	荣誉证书等	商标的使用情况及驰名状态等
4.5	核准续展注册证明	Payment and renewal of trademarks, etc.
5.4	荣誉证书等	专利的使用情况
6.1	商业秘密文件	商业秘密的内容、数量、范围、重要程度及采取的保护措施
6.2	保密协议、竞业Restriction agreements, etc.	Confidentiality system, personnel management, archive management, anti-disclosure mechanism, training work, reward and punishment measures, resignation management and other trade secret management measures公式等	目标公司的技术积累和知识经验等专有技术情况
7.2	技术许可协议	专有技术对外许可情况
7.3	管理规章制度	对专有技术的管理制度
8.1	域名Situation	Ownership of the domain name, acquisition time, acquisition method, etc.
8.2	Others7
News about the target company's litigation
0. Implementation and operation
10.1	license agreement如：转让、许可、质押、出资等
10.2	转让协议、质押合同
10.3	出资协议等
1. 访谈记录及受访者提供的证明材料
11.1	访谈记录
11.2	访谈图片、音频等
11 .3	Evidence provided by respondents

. Commonly used websites for inquiring about litigation information:

1, China Judgment Documents Website: http://wenshu.court.gov.cn/;

2, China Intellectual Property Judgment Documents Website: http://ipr.court.gov .cn/;

3, Peking University Magic Weapon: http://www.pkulaw.cn/;

4, Worcester First: http://law.wkinfo.com.cn/;

5, OpenLaw: http:// openlaw.cn/;

6, non-litigated cases: https://www.itslaw.com/;

7, Caseshare: http://www.caseshare.cn.

. Commonly used copyright inquiry websites:

1, National Copyright Administration website: http://www.ncac.gov.cn/;

2, National Copyright Protection Center (National Copyright Registration Portal): http://www. gapp.gov.cn/govservice/108.shtml;

3, China Copyright Protection Center: http://www.ccopyright.com.cn/;

4, China Copyright Online: http://www.chinacopyright.org.cn ;

5, Qichacha: https://www.qichacha.com/more_zzqs.

4. Commonly used trademark inquiry website:

1, China Trademark Website: http://sbj.saic.gov.cn/;

2, ITAOTM Trademark Inquiry Website: http://www.itaotm.com/;

3, Trademark Classification Table: http://www .sbfl.cn/;

4, Qichacha: https://www.qichacha.com/more_brands;

5, Wisdom Bud trademark patsnap: http://trademark.patsnap.cn;

6, Madrid international trademark search: http ://www.wipo.int/romarin;

7, EU trademark search: https://oami.europa.eu/ohimportal/en/.

5. Commonly used patent search websites:

1, Comprehensive service platform of State Intellectual Property Office: http://www.sipo.gov.cn/zhfwpt/;

2, China Patent Information Network: http://www.patent. com.cn;

3, Patent search and analysis: http://www.pss-system.gov.cn/sipopublicsearch/portal/index.shtml;

4, SooPAT patent search: http://www.soopat.com/;

5, incoPat technology innovation intelligence platform: http://www.incopat.com/#page1;

6, patsnap wisdom bud: http://www.zhihuiya.com/;

7, INNOJOY: http://www.innojoy.com/searchresult/default.html;

8, US patent and trademark query: http://www.uspto.gov.

6. Commonly used domain name query website:

1, Ministry of Industry and Information Technology ICP/IP address/domain name information record management system: http://www.miitbeian.gov.cn/publish/query/indexFirst.action;

2, website Long tool: http://tool.chinaz.com/;

3, whois query-China million net: https://whois.aliyun.com.

Appendix 5: Summary of Commonly Used Regulations for Intellectual Property Due Diligence

I. Regulations on Intellectual Property Due Diligence

1, Securities Law of the People's Republic of China (2014)

2, Law Firm Securities Law Practice Rules (for Trial Implementation) (China Securities Regulatory Commission 2010)

3, Administrative Measures for Law Firms Engaged in Securities Legal Business (China Securities Regulatory Commission, Ministry of Justice of the People's Republic of China 2007)

4, Administrative Measures for Initial Public Offering and Listing on the Growth Enterprise Market (Order of China Securities Regulatory Commission 2015 Revised in 2009)

5. Guidelines for the Contents and Formats of Information Disclosure by Public Offering Companies No. 6 (revised by China Securities Regulatory Commission in 1999)

6, Regarding the comprehensive strengthening of intellectual property adjudication work for the construction of innovation Opinions on Providing Judicial Guarantee for a Model Country (Supreme People's Court, 2007)

7. Circular on Further Strengthening Judicial Protection of Intellectual Property Rights (Supreme People's Court, 2004)

8, Opinions on Several Issues concerning Intellectual Property Judgment and Serving the Overall Situation under the Current Economic Situation (Supreme People's Court, 2009)

9, Regarding Criminal Handling of Intellectual Property Infringement Interpretation of Several Issues Concerning the Specific Application of Law in Cases II (Supreme People's Court, Supreme People's Procuratorate, 2007)

10, Interpretation of Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Intellectual Property Infringement (Supreme People's Court, Supreme People's Procuratorate, 2004)

II. Copyright-related regulations

1, Copyright Law of the People's Republic of China (2010)

2, Regulations on the Implementation of the Copyright Law of the People's Republic of China (revised by the State Council in 2013)

3, Regulations on the Collective Administration of Copyright (revised by the State Council in 2013)

4, Regulations on the Protection of Information Network Dissemination Rights ( State Council Revised in 2013)

5, Computer Software Protection Regulations (revised by the State Council in 2013)

6, Provisions on the Implementation of International Copyright Treaties (State Council 1992)

7, Copyright Pledge Registration Measures (National Copyright Administration 2011)

8, Computer Software Copyright Registration Measures (National Copyright Administration, 2002)

9, Provisions on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Infringing the Right of Information Network Dissemination (Supreme People's Court, 2013)

10, Interpretation on Several Issues concerning the Application of Law in the Trial of Copyright Civil Disputes Court 2002)

3. Trademark-related regulations

1, Trademark Law of the People's Republic of China (revised in 2013)

2, Regulations on the Implementation of the Trademark Law of the People's Republic of China (revised in 2014 by the State Council)

3, Trademark Examination and Trial Standards (State Administration for Industry and Commerce 2017 Revised in 2014)

4, Provisions on the Recognition and Protection of Well-known Trademarks (State Administration for Industry and Commerce, 2014)

5. Provisions on the Procedures for the Registration of the Pledge of the Exclusive Right to Register a Trademark (State Administration for Industry and Commerce, 2009)

6, Interpretation of the Supreme People's Court on the Jurisdiction of Trademark Cases and the Application of Law after the Implementation of the Decision on the Amendment of the Trademark Law (The Supreme People's Court, 2014)

7, Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases Involving the Protection of Well-known Trademarks (Supreme People's Court, 2009)

8, Interpretation of Several Issues on the Application of Law in the Trial of Trademark Civil Dispute Cases (Supreme People's Court, 2002)

IV. Patent-related regulations

1, Patent Law of the People's Republic of China (revised in 2008)

2, Law of the People's Republic of China on Promoting the Transformation of Scientific and Technological Achievements (revised in 2015)

3, Law of the People's Republic of China on Progress in Science and Technology (revised in 2007)

4, Patent of the People's Republic of China Regulations for the Implementation of the Law (revised by the State Council in 2010)

5, Regulations on Patent Agency (revised by the State Council in 1991)

6, Regulations on National Defense Patents (revised by the State Council and the Central Military Commission in 2004)

7, Guidelines for Patent Examination (revised by the State Intellectual Property Office in 2017)

8, Patents Administrative Law Enforcement Measures (Amended by the State Intellectual Property Office in 2015)

9, Measures for Compulsory Licensing of Patent Implementation (Amended by the State Intellectual Property Office in 2012)

10 Several Provisions on the Application of Law in the Trial of Patent Dispute Cases (Amended by the Supreme People's Court in 2015)

11, on Several Provisions on the Application of Legal Issues to Suspension of Patent Infringement Before Litigation (Supreme People's Court, 2001) Provisions (State-owned Assets Supervision and Administration Commission of the State Council, 2010)

3, Several Provisions on Prohibiting Infringement of Trade Secrets (State Administration for Industry and Commerce 1Amended in 1998)

4, Interpretation of Several Issues Concerning the Application of Law in the Trial of Unfair Competition Civil Cases (Supreme People's Court, 2007)

6. Domain Name Relevant Regulations

1, China Internet Network Information Center Domain Name Dispute Resolution Procedure Rules (China Internet Network Information Center) Revised in 2012)

2, China Internet Network Information Center Domain Name Registration Implementation Rules (revised in 2012 by China Internet Network Information Center)

3, Uniform Dispute Resolution Policy (Uniform Dispute Resolution Policy,Internet Corporation for Assigned Names and Numbers (ICANN) 1999)

4, Notice of the General Office of the China Banking Regulatory Commission on Strengthening Domain Name Protection of Banking Financial Institutions (China Banking Regulatory Commission 2010)

5, Ministry of Industry and Information Technology on Strengthening the Internet Circular on the Security Guarantee of Domain Name System (Ministry of Industry and Information Technology, 2010)

6, Interpretation on Several Issues concerning the Application of Law in the Trial of Civil Disputes Involving Computer Network Domain Names (Supreme People's Court, 2001)

VII. Other Relevant Provisions

1, On Trial Provisions on Several Issues in Civil Dispute Cases of Conflicts between Registered Trademarks, Enterprise Names and Prior Rights (Supreme People's Court, 2008)

2, Regulations of the People's Republic of China on the Protection of New Plant Varieties (revised by the State Council in 2014)

3, Regulations on the Protection of Layout Designs of Integrated Circuits (State Council, 2011)

4, Notice of the General Office of the State Council on Issues Concerning Strengthening the Management of Integrated Circuit Cards (General Office of the State Council, 1997)

5, Notice of the Supreme People's Court on Carrying out Trials of Cases Involving Layout Design of Integrated Circuits (Supreme People's Court 2011 Year)

6, Regulations of the People's Republic of China on the Administration of Technology Import and Export (revised by the State Council in 2011)

7, Administrative Measures for the Registration of Technology Import and Export Contracts (revised in 2009 by the Ministry of Commerce)

8, General Office of the Ministry of Commerce on the import and export of dual-use items and technologies Notice on the Issue of Certificate Replacement (Ministry of Commerce, 2007)

9, Interpretation on Several Issues Concerning the Application of Law in the Trial of Technology Contract Dispute Cases (Supreme People's Court, 2005)

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Source [Fist Clap] All China Lawyers Association

2. Commonly used websites for inquiring about litigation information:

1, China Judgment Documents Website: http://wenshu.court.gov.cn/;

2, China Intellectual Property Judgment Documents Website: http://ipr.court.gov .cn/;

3, Peking University Magic Weapon: http://www.pkulaw.cn/;

4, Worcester First: http://law.wkinfo.com.cn/;

5, OpenLaw: http:// openlaw.cn/;

6, non-litigated cases: https://www.itslaw.com/;

7, Caseshare: http://www.caseshare.cn.

. Commonly used copyright inquiry websites:

1, National Copyright Administration website: http://www.ncac.gov.cn/;

2, National Copyright Protection Center (National Copyright Registration Portal): http://www. gapp.gov.cn/govservice/108.shtml;

3, China Copyright Protection Center: http://www.ccopyright.com.cn/;

4, China Copyright Online: http://www.chinacopyright.org.cn ;

5, Qichacha: https://www.qichacha.com/more_zzqs.

4. Commonly used trademark search websites:

1, China Trademark Website: http://sbj.saic.gov.cn/;

2, ITAOTM Trademark Search Website: http://www.itaotm.com/;

3, Trademark classification table: http://www.sbfl.cn/;

4, Qichacha: https://www.qichacha.com/more_brands;

5, Wisdom Bud trademark patsnap: http://trademark.patsnap.cn ;

6, Madrid international trademark search: http://www.wipo.int/romarin;

7, EU trademark search: https://oami.europa.eu/ohimportal/en/.

5. Commonly used patent search websites:

1, Comprehensive service platform of State Intellectual Property Office: http://www.sipo.gov.cn/zhfwpt/;

2, China Patent Information Network: http://www.patent. com.cn;

3, Patent search and analysis: http://www.pss-system.gov.cn/sipopublicsearch/portal/index.shtml;

4, SooPAT patent search: http://www.soopat.com/;

5, incoPat Technology Innovation Intelligence Platform: http://www.incopat.com/#page1;

6, patsnap Wisdom Bud: http://www.zhihuiya.com/;

7, INNOJOY: http://www.innojoy .com/searchresult/default.html;

8, US patent and trademark search: http://www.uspto.gov.

6. Commonly used domain name query website:

1, Ministry of Industry and Information Technology ICP/IP address/domain name information record management system: http://www.miitbeian.gov.cn/publish/query/indexFirst.action;

2, website Long tool: http://tool.chinaz.com/;

3, whois query-China million net: https://whois.aliyun.com.

All China Lawyers Association

Operation Guidelines for Intellectual Property Due Diligence

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Contents

Chapter 1General Provisions

.1 The Concept of Intellectual Property Due Diligence

.2 The Meaning of Intellectual Property Due Diligence

.3 The Purpose of Intellectual Property Due Diligence

.3 The Purpose of Intellectual Property Due Diligence32

3 Basic Principles of Intellectual Property Due Diligence

.5 Methods of Intellectual Property Due Diligence

.6 Scope of Intellectual Property Due Diligence

.7 Specific Contents of Intellectual Property Due Diligence

Chapter II Operational Process of Intellectual Property Due Diligence

2.1 Operational Process概述

2.2 确定委托

2.3 立项组队

2.4 制定计划

2.5 前期调查

2.6 资料搜集

2.7 访谈走访

2.8 信息核查

2.9 与第三方机构沟通交流

2.10 报告Write

2.11 Feedback and revision

2.12 Report completed

2.13 Documents for reference

Appendix 1: IP Due Diligence Flowchart

Appendix II: IP Due Diligence Report Sample

Appendix III: IP Due Diligence Archive Checklist

Appendix IV: Common Websites for IP Due Diligence

Appendix V: IP Due Diligence Summary of common regulations for investigationIt cannot be used as a basis for judging whether lawyers are practicing due diligence and compliance, nor can it be used as a basis for investigating lawyers' responsibilities.

1.1 The concept of intellectual property due diligence

Intellectual property due diligence refers to entrusting a third-party professional organization or personnel to conduct a comprehensive investigation and systematic review of the intellectual property rights of the target company based on specific commercial needs, and provide investment for the entrusting party or expected investment. Non-litigation legal service activities that provide the target company with intellectual property information that may affect the expected business plan or other key factors, and ultimately form a professional summary report.

1.2 The significance of intellectual property due diligence

1.2.1 Solving the problem of information asymmetry , to obtain a comprehensive and systematic factual basis, so as to help make an objective and scientific assessment of the accurate value of the target company, facilitate business negotiations and facilitate the conclusion of transactions.

1.2.2 Discovering value and revealing risks

The entrusting party can conduct comprehensive value mining and risk assessment of the target company's intellectual property assets based on the results and reports of intellectual property due diligence, so as to better understand the actual value of the target company's intellectual property, And it is helpful to discover the potential legal risks that may hinder future commercial activities or transactions and the possible hidden costs, so as to avoid the increase of business plan or transaction risks and costs.

1.2.3 Adjust and improve the commercial plan Adjustment and improvement of business plan and transaction structure.

1.3 Purpose of intellectual property due diligence

From a macro perspective,The purpose of intellectual property due diligence is basically the same. There are two main reasons. One is to sort out the intellectual property status of the target company, including the content of rights, ownership of rights, source of rights, burden of rights, and value of rights, etc.; the second is to analyze the existence of intellectual property rights of the target company. Risk, including implementation risk, transaction risk, management risk, etc.

From a micro perspective, the purpose of intellectual property due diligence will vary with the business needs of the client. There are various business needs for conducting due diligence, and different target settings may affect the preparation of due diligence. and analysis focus. For example, if the purpose of the entrusting party's business plan is to obtain the technical employees and technical secrets of the target company, the intellectual property due diligence target setting should focus on the investigation of the employee's situation, and should investigate the target company's service invention achievements, technical personnel's Proportion and incentive methods, whereabouts of technical personnel after the commercial plan or transaction, etc.; if the reason for the entrusting party to conduct due diligence is to obtain the well-known or emerging brand of the target company, the objectives and content of intellectual property due diligence should be based on the objectives Whether the company's brand has been granted full rights protection is determined. Therefore, intellectual property due diligence personnel should fully communicate with the client to understand its expectations and objectives, so as to formulate scientific, reasonable and practical intellectual property due diligence objectives that are consistent with their business plans or transactions.

1.4 Basic principles of intellectual property due diligence Inconsistent, attempts to influence the judgment of the entrusting party. When accepting the entrustment of the entrusting party to carry out intellectual property due diligence on the target company, the entrusted party shall follow the principle of reasonableness and prudence, always maintain a prudent and cautious attitude, and be diligent and responsible.Have reasonable doubts about any data, information and oral statements made by relevant personnel and documents provided, carefully check and verify whether there are major differences or inconsistencies between the obtained information and the actual situation, and avoid excessive trust in the target company. Ignoring potential risks and affecting the authenticity of due diligence findings.

1.4.2 Confidentiality principle

In order to ensure the accuracy of intellectual property due diligence results, the trustee often needs the target company to disclose a large amount of information to it when conducting intellectual property due diligence, many of which involve the target company's operating secrets and technical secrets. , once the leakage will have a significant impact on its business activities. In order to reduce the concerns of the target company and reduce the obstruction of intellectual property due diligence, the entrusted party should always abide by the principle of confidentiality when conducting due diligence, and the information and documents obtained from the entrusting party, the target company and other relevant subjects due to due diligence, The relevant information and other content that you have learned must abide by the confidentiality obligation to prevent the leakage of information.

1.4.3 Principles of professionalism

Intellectual property itself is a professional field that integrates knowledge of law, technology, management, economy, etc. Therefore, intellectual property due diligence requires very high professionalism, requiring investigators to make full use of their own work experience , professional ability, professional sense of smell, etc. to scientifically and objectively judge the intellectual property situation of the target company. Therefore, the intellectual property due diligence team members should not only have a deep understanding of professional knowledge, but also select compound talents with inter-professional background as much as possible, rationally divide labor, complement each other's advantages, and strive to make informed decisions on the target company's intellectual property status and risks. Accurate scientific investigation.

1.4.4 Principle of Objectivity

The trustee generally conducts intellectual property due diligence on the target company based on the trustee's entrustment.However, this does not mean that the entrusted party should be subject to the position and requirements of the entrusting party or the target company when conducting intellectual property due diligence and make false or unrealistic due diligence results. The trustee shall adhere to the principle of objectivity in due diligence, take facts as the basis, conduct investigation and judgment in strict accordance with the provisions of relevant laws and regulations, and issue corresponding legal opinions, and shall not arbitrarily guess or make judgments without sufficient evidence.

1.5 Methods of intellectual property due diligence

1.5.1 Review of documents

Intellectual property due diligence often involves a large number of documents, and review and audit of documents is one of the most commonly used methods in due diligence. After obtaining the corresponding documents, the entrusted party should carefully check and compare the relevant documents to ensure the authenticity, integrity and authority of the documents, and conduct in-depth analysis of the documents to fully explore the real information hidden behind the documents. . Generally speaking, the documents mainly come from the following sources:

1, provided by the entrusting party or the target company voluntarily. In order to complete due diligence, the target company usually provides relevant intellectual property information on its own initiative or at the request of the entrusted party, such as intellectual property ownership certificates, intellectual property-related agreements, etc. The entrusting party should also disclose the relevant information to the entrusting party if it is aware of it.

2. Obtain publicly disclosed intellectual property information related to the target company through third-party channels such as public media and the Internet. For example, inquire about the legal status of intellectual property on the official intellectual property website and professional database, inquire about the litigation situation of intellectual property on the relevant court website, or learn about the latest operating trends of the target company's intellectual property through media reports, etc.

1.5.2 Interview

For some information or problems that are difficult to obtain from written materials, the trustee can obtain information in the form of interviews. The trustee should pay attention,The statements or explanations made by the interviewees in the interviews should not be trusted. The interview contents of the interviewees should be verified with each other and with other materials, and proof materials should be provided, and false statements should be excluded to ensure the authenticity of the interview contents. believable.

1. The content of the interview should not be the same or generalized. Instead, targeted interview content should be designed for interviewees at different levels and positions. At the same time, attention should be paid to designing questions that can confirm each other in the interview content of different objects.

2. Communicate face-to-face with relevant persons in charge of various levels and departments within the target company and employees in specific positions, and conduct interviews on certain specific issues to obtain a more comprehensive and in-depth understanding of the target company. At the same time, interviews can also be conducted with relevant customers, partners and even competitors of the target company when necessary.

1.5.3 Visit

In order to verify the integrity of the target company and the authenticity and credibility of the information provided by the trustee, the trustee can visit the industry association or government department where the target company is located, and learn about the current situation, development trend and goals of the industry by The company's actual competitiveness in the industry, the implementation and application of the target company's intellectual property rights in the industry, etc., to understand the actual value of the target company's intellectual property rights from the side.

1.5.4 On-site field investigation

On-site field investigation means that the entrusted party obtains an intuitive understanding of the target enterprise through on-site inspection and investigation of the R&D, production, sales and other links of the target enterprise. A memorandum should be prepared for reference after the on-site investigation. For target companies with different orientations, the location of their on-site field investigations should be focused. For example, for a research-oriented target company, investigators can focus on visiting its technology R&D department to learn about the technology R&D situation; a brand-oriented target company can focus on visiting its product sales site,Understand the competitiveness of the brand in the market, customer recognition and dependence on the brand, etc.

1.5.5 Correspondence

Correspondence means that the target company cannot submit the original or relevant materials for verification, or the relevant issues are important and it is necessary to ensure the authenticity, and the specific situation can be verified by sending a letter to the relevant unit for verification. A due diligence method.

At the same time, when the relevant information cannot be collected or the real situation cannot be fully understood for some issues, in order to reduce the risk of errors in due diligence, the target company can be required to submit all the materials and documents provided by the target company. Significant omission of declaration or letter of guarantee.

1.5.6 Non-public investigation

When necessary, the entrusted party may also adopt non-public investigation methods to obtain information about the target company's intellectual property rights without the target company's knowledge, such as by contacting the target company's affiliates, competition Opponents and business partners can obtain the required relevant information within the legal scope by asking people in the industry about the target company's situation, etc., and make a memorandum for future reference, so as to reduce the risk of being deceived by the target company's false information.

1.6 Scope of intellectual property due diligence

Different types of intellectual property require different contents to be investigated. The entrusted party can refer to the following general contents of intellectual property due diligence to carry out investigation work.And then combined with the actual situation and rights characteristics to conduct specific investigations.

1.6.1 Ownership status

The target company can acquire intellectual property rights or obtain intellectual property related rights and interests through original acquisition, subsequent acquisition, licensing, etc.

1. When the target company obtains the copyright of the work through independent creation, independent research and development of related technologies and improvement plans, etc., and applies for a patent to obtain the patent right, or obtains the trademark right through the independent design and the application for the exclusive right to register the industrial and commercial logo Under such circumstances, the trustee shall conduct a detailed review of the ownership of the target company’s intellectual property, including:

(1) the registration status on the intellectual property right certificate; Involving work/invention, commissioned work/invention, cooperative work/invention, whether there is a co-owner, etc;

2. When the target company acquires intellectual property rights through transfer, etc., it needs to pay attention to review:

(1) Whether the transfer contract signed between the intellectual property transferor and the transferee is true and legal;

(2) Intellectual property transfer procedures Whether it is legal and complete, and whether the transfer has been registered;

(3) whether the transferred intellectual property is valid;

(4) whether there is a situation in which the transfer of rights is prohibited in the intellectual property;

(5) whether the intellectual property has been licensed to others , in what way to allow others to use it, etc.

3. When the target company obtains the right to use intellectual property through licensing or licenses its intellectual property to others,When conducting due diligence, you need to pay attention to review the following:

(1) intellectual property is licensed or licensed by which way of exclusive license, exclusive license, or general license;

(2) intellectual property license or license How the scope of use is agreed, including the geographical scope, the scope of goods or services, and the scope of authority; ;

(5) Whether the license or the licensed intellectual property has expired or is about to expire;

(6) The license fee of the intellectual property;

(7) Whether the intellectual property license implementation contract has been registered in the relevant department;

(8) Whether there are clauses in the intellectual property license contract that may cause its termination due to changes in the target company, or any clauses that may have a significant impact on the expected business plan or transaction value, etc.

1.6.2 Legal status

's review of the legal status of intellectual property mainly includes:

(1) relevant information on the application, announcement, authorization, and invalidation of intellectual property rights;

(2) the valid status of intellectual property rights, the remaining protection period , payment status.

For trademarks or patents, in order to expand the scope of protection, the target company may also apply for a series of trademarks or patents.for an accurate assessment of the status of entitlements.

1.6.3 Rights content

Different intellectual property rights content is different:

1, copyright content includes publication, modification, signature, etc. personal rights and reproduction, distribution, rental, performance, broadcasting, adaptation, information network dissemination and other property rights;

2, patent rights include manufacturing, use, sales, promises to sell , import, etc.;

3, trademark rights include exclusive use rights, prohibition rights, license rights and other content.

When examining the intellectual property rights of the target company, the entrusted party should not only examine its actual control over the intellectual property rights, but also examine the rights content of its intellectual property rights, especially when the reason for the entrusting party to carry out intellectual property due diligence is to use the target company In the case of intellectual property rights, the entrusted party should focus on examining whether the content of its rights meets the business needs of the entrusting party, such as whether the scope of goods or services approved and registered by the target company’s trademark covers the scope of the entrusting party’s business activities.

1.6.4 Legal risk

The legal risk of intellectual property includes investigation of general litigation, litigation risk analysis and legal risk analysis when no litigation occurs.

1. Investigation of litigation situation: Investigate the litigation situation of the target company, understand the situation and progress of the case, and report the litigation risk according to the analysis opinions of the attorney and the target company. Does the operation have an impact and to what extent.

2. Litigation risk analysis: under the special request of the entrusting party, according to the stipulations of the entrustment contract , further analyze the litigation of the target company, and analyze the risks of the target company in the litigation based on the evidence of the case. To confirm the analysis opinions of the target company and its attorneys,Report truthfully.

3. Risk analysis of not involved in litigation: If the target company is not involved in litigation, if the entrusting party is more concerned about whether there are legal risks in its key intellectual property content, whether the target company will become the accused infringer, the intellectual property rights it enjoys Whether it will be claimed by others has an important impact on the implementation of the entrusting party's expected business plan or transaction. Then, according to the agreement of the entrustment contract, it is necessary to conduct a more in-depth investigation and analysis on whether the target company has the risk of ownership or infringement. Specifically, we can start from the following:

(1) Whether the intellectual property rights such as patents and copyrights enjoyed by the target company may be claimed by others, such as whether there is a competition restriction between the employed employees and the previous employer or the use of others’ trade secrets , technical secrets, etc; There is a conflict between the rights or the legal rights of others, such as whether there will be a conflict between the target company's trademark and others' trade names and domain names;

(4) Whether the target company's intellectual property rights may be revoked or invalid, such as trademarks, domain names Whether it is invalid or revoked due to squatting or other reasons, the patent is invalid because it does not meet the legal requirements for granting patent rights, etc.; How high is the possibility of property rights, what is the risk of infringement, what is the amount of compensation for infringement, whether there is a plan to avoid infringement, etc.

1.7 Specific content of intellectual property due diligence

Intellectual property covers a wide range of content,Including but not limited to: patents, trademarks, copyrights, trade secrets, know-how, network domain names related to enterprises/commodities, protection of appellations of origin, integrated circuit layout design exclusive rights , new plant variety rights and other rights related to intellectual property. However, general intellectual property due diligence is mainly aimed at: patents, trademarks, copyrights, trade secrets, etc.

1.7.1 Copyright due diligence

Copyright due diligence mainly combines relevant materials and information, and conducts due diligence on the following specific content in terms of copyright ownership, legal status, operation, litigation and legal risks enjoyed by the target company :

1. List of copyrighted works of the target company, which should include the certificate number, type of work, author, source of rights, attribution of rights, and restrictions on rights.

2, the completion date of each work of the target company, the date of publication, the remaining rights period, and whether the copyright registration has been handled .

3. If the target company has handled the copyright registration, it will mainly check the copyright registration certificate, verify it in combination with the website of the National Copyright Registration Center, and verify its copyright ownership through interviews and other methods.

4. If the target company has not handled the copyright registration, but claims to have the copyright of the work, it needs to check the relevant agreement, work creation manuscript, software code and related certification documents:

(1) If the target company obtains the copyright by hosting the creation, it needs to check the creation The draft, the minutes and resolutions of the meeting presided over the creation, the time certificate for the completion of the creation, the certificate for the first publication, etc. shall be reviewed; Content review;

(3) If the target company obtains copyright by cooperating with others,It is necessary to review the cooperation agreement, the right attribution agreement, etc.;

(4) If the target company obtains the copyright through personal job creation, it is necessary to review the content of the job work ownership agreement and the company's internal job creation incentive measures;

( 5) If the target company obtains the copyright through the transfer, it needs to review the copyright transfer agreement, the transfer fee payment certificate, the copyright registration change certificate, etc.; The time of publication and whether the country is a member state of the Berne Convention shall be reviewed.

5. If the target company obtains the right to use the copyright by means of a license, the copyright ownership certificate, the copyright license using the protocol, the license fee payment certificate, the scope and limitation of the licensed use, the license type and Review the terms of use and the remaining period.

6. If the target company invests the copyright as a price, it is necessary to review the conditions of the investment object, the relationship between the investment object and the target company, and the reasonableness of the copyright price in the investment agreement.

7. If the target company licenses or sublicenses the copyright to others, it is necessary to review the license agreement, license term, license type, license scope and restrictions, and license fee payment certificate.

8. If the target company pledges the copyright,It is necessary to review the copyright pledge agreement, pledge purpose, duration, and copyright pledge register.

9, the litigation and arbitration of the target company related to copyright or copyright agreement.

10, the non-disclosure agreement between the target company and the core R&D creators, the content stipulated in the non-compete agreement, and the distribution of non-compete compensation.

11. The target company's internal rules and regulations for copyright management and protection, as well as relevant confidentiality measures for core copyrights.

12. The work history of the core R&D and creative personnel of the target company and the labor contract , the non-disclosure agreement, the content of the non-compete agreement and the distribution of non-compete compensation.

13. The specific content of each work of the target company, whether there is a risk of infringing others' prior copyrights (including adjacent rights ) or other prior rights such as the right to name and portrait, or the risk of unfair competition.

The aforementioned items 10-13 depend on the specific needs of the project and the service content agreed with the client, whether due diligence is required.

1.7.2 Trademark due diligence

Trademark due diligence mainly combines relevant materials and information, aiming at the registration application, trademark ownership status, legal status, operation status, litigation situation and legal risks of the registered trademark of the target company. We will conduct due diligence on the following specific content:

1, list of target company’s trademarks, which should include registration type, trademark number, trademark style, application date, authorization date, renewal status, content of goods or services approved for registration, transfer status, Licensing, etc.

2. If the target company's trademark has been approved for registration,It is necessary to check the registration category, trademark number, trademark style, application date, authorization date, renewal status, and the content of goods or services approved for registration for each trademark certificate and notification of changes and renewals. Check the trademark status.

3. If the target company's trademark has not been approved for registration, then:

(1) If the target company's trademark has been submitted for registration but has not been approved for registration, the notice of acceptance of the trademark registration application, the payment certificate for the registration application fee, and the official statement during the application process are required. Approval documents and other contents shall be reviewed in combination with China Trademark Network. , the actual use of the trademark, the well-known situation, etc.

4. If the target company applies for registration of an international trademark, it needs to review the international trademark ownership certificate, application documents, registration application category, and legal provisions of the application country for trademark registration application.

5. If the target company obtains trademark application rights or trademark rights through entrusted design or cooperative design, it is necessary to review the entrustment agreement, cooperation agreement and the content of the ownership of rights.

6. If the target company obtains the trademark application right or trademark right through transfer, it needs to review the transfer agreement, transfer registration certificate, trademark change certificate, transfer fee payment certificate, etc.

7. If the target company obtains the right to use the copyright by means of license, it needs to agree on the trademark ownership certificate, license agreement, license fee payment certificate, the scope and restrictions of the licensed use, the type of license and the term of use and the remaining period, the registration certificate of the license contract, the agreement on the common use of the trademark, etc.

8. If the target company invests the trademark rights as a price,It is necessary to review the situation of the investment object, the relationship between the investment object and the target company, and the reasonableness of the price of the trademark right in the investment agreement.

9. If the target company licenses or sublicenses the trademark rights to others, it needs to review the license agreement, license term, license type, license scope and restrictions, license fee payment certificate, and contract filing status.

10. If the target company pledges the trademark right, it needs to review the copyright pledge agreement, pledge purpose, time limit, and trademark pledge register.

11. The litigation and arbitration of the target company related to trademark rights or trademark rights agreements.

12, whether the target company's trademark is still distinctive, whether there is a risk of being weakened or a generic name called an approved registration category, etc.

13. Review whether the target company has the risk of revoking its registered trademark if it is not used for 3 consecutive years.

14. Examining whether there is a risk of infringing the lawful prior rights of others for the trademarks that have been used by the target company but have not been approved for registration.

The aforementioned items 12-14 depend on the specific needs of the project and the service content agreed with the entrusting party, whether due diligence is required.

1.7.3 Patent due diligence

Patent due diligence mainly combines relevant materials and information to review the target company's relevant patent application authorization, patent ownership status, legal status, operation, litigation and legal risks. Carry out due diligence on the following specific content:

1, list of patents of the target company, the content should include the type, name, application number, application date, publication (吿) number, public (吿) date, authorization date, and validity period of the patent and patent application. , legal status, assignment, licensing, etc.

2, the target company has authorized patents,The patent certificate , the copy of the patent register, the authorization text, the validity period, the annual fee payment certificate, etc. need to be examined.

3. For patents that have been submitted by the target company but have not yet been authorized, it is necessary to review the official documents such as the receipt of application documents, the notice of acceptance of patent application, the notice of entry into substantive examination, and the notice of examination opinion, as well as payment vouchers.

4. If the target company obtains the patent application right or patent right through its own research and development, it is necessary to investigate the sources of materials and technologies used in the research and development, and examine the content of the patent right certificate and technical research and development record documents.

5. If the target company obtains the patent application right or patent right through entrusted development or cooperative development, it is necessary to review the entrusted development agreement, cooperative development agreement, relevant clauses or agreements on the ownership of rights, etc.

6. If the target company obtains a patent right through a personal service invention, it is necessary to review the service invention ownership agreement, the work experience of the inventor or designer, and the company's internal service invention management regulations.

7. If the target company obtains the patent application right or patent right through transfer, it is necessary to review the transfer agreement, transfer registration certificate, patent bibliographic change certificate, change announcement, and transfer fee payment certificate.

8. If the target company obtains the right to use the patent by means of license, it needs to verify the patent ownership certificate, license agreement, license contract record registration certificate, license fee payment certificate, license scope, license type and Review the terms of use, etc.

9. If the target company invests the patent application rights or patent rights as a price, it is necessary to review the patent ownership certificate, the patent right evaluation report , and the investment agreement.

10. If the target company licenses or sublicenses the patent rights to others,It is necessary to review the patent ownership certificate, license agreement, license fee payment certificate, license period, license type, license scope, contract record and other contents.

11. If the target company pledges the patent right, it needs to examine the patent ownership certificate, pledge agreement, patent pledge registration certificate, payment of annual fee, etc.

12. The litigation and arbitration of the target company related to patent rights or patent rights agreements.

13. The non-disclosure agreement between the target company and the core R&D personnel, the content of the non-compete agreement and the distribution of non-compete compensation.

14, the internal rules and regulations of the target company's patent management and protection, and the relevant confidentiality measures for the core technology in the process of research and development.

15. The work history of the core R&D personnel of the target company and the content stipulated in the labor contract, non-disclosure agreement, non-compete agreement and the payment of non-compete compensation with their original units.

16. The stability of the target company's patents, including but not limited to whether the granted patent is subject to reexamination or invalidation procedures, whether the patent (application) belongs to common knowledge and free technology in the technical field, and whether it may be previously disclosed.

17. The target company's competitors' products and patents, and analyze whether the competitor's products have the possibility of infringing the target company's patent rights, or whether the target company's products (especially core products) have the possibility of infringing the competitors' patent rights.

The above-mentioned items 13-17 depend on the specific needs of the project and the service content agreed with the client, whether due diligence is required.

1.7.4 Due diligence on trade secrets

Trade secrets include business secrets and technical secrets.Investigate including but not limited to the following:

1, the target company's commercial secret ownership certification materials, such as technical information or business information formation records, etc.

2. The expression and usage of the target company's trade secrets.

3. The implementation of the company's internal trade secret management system and the implementation of trade secret confidentiality measures, such as whether it has signed confidentiality agreements with employees, non-compete agreements Scope of secrecy, confidentiality obligations, etc.

4. The target company's labor contract involving trade secret R&D personnel, the agreement and incentive measures for job creation or job invention, etc.

5. The work history of the core R&D personnel of the target company and the contents stipulated in the labor contract, non-disclosure agreement, non-compete agreement and the payment of non-compete compensation with their original units.

6. If the target company licenses its proprietary technology to the outside world, it needs to review the license agreement, license term, license type, license scope and restrictions, license fee payment certificate, etc.

1.7.5 Domain name due diligence

In view of the fact that most companies have their own websites, and domain names are the basis for holding websites, and disputes over domain names and trademark rights are frequent, it is necessary to conduct due diligence on domain names to detect and prevent risk.

domain name due diligence should be combined with relevant materials and information, including but not limited to the following:

1, target company domain name and list of corresponding websites,It should include the domain name registration time, website opening time, website name, website filing subject, and the relationship between the filing subject and the target company, etc.

2, target company domain name registration application documents, domain name registration certificate, record information and other ownership certification materials.

3. Time, protection period, remaining period and renewal of the target company's domain name application for registration.

4. The use and transfer of the target company's domain name, including proof of use, transfer agreement, proof of rights change, etc.

5. Litigation, arbitration, etc. of the target company related to the domain name or the domain name agreement.

6. Whether the domain name of the target company has been squatted.

7. Whether the target company's domain name conflicts with other people's legal prior rights such as prior trademark rights, well-known service unique names, etc., and whether there are reasonable reasons for using such domain names and proof materials, etc.

The aforementioned items 6-7 depend on the specific needs of the project and the service content agreed with the client, whether due diligence is required.

Chapter II Operational Process of Intellectual Property Due Diligence

2.1 Operational Process Overview

The necessity and importance of intellectual property due diligence are becoming more and more prominent, and the breadth and depth of due diligence are gradually expanding. Therefore, the knowledge corresponding to specific projects The scope of title due diligence varies. However, in general, intellectual property due diligence is generally carried out according to the following operating procedures:

2.1.1 Sending a demand: the entrusting party will solicit the entrusted party through targeted inquiry or open bidding due to the need for intellectual property due diligence in the relevant project;

2.1.2 Submit quotation: Whether it is in the form of directional inquiry or open bidding, interested intellectual property due diligence units should submit a written quotation or service plan to the entrusting party; actual needs,Select an intellectual property due diligence service unit according to the quotation, sign an entrustment contract, and determine the entrustment relationship and due diligence content;

2.1.4 Project establishment and team formation: The entrusting party and the entrusting party respectively set up the intellectual property due diligence project, and each selects the appropriate

2.1.5 Formulation of a plan: the entrusted party formulates a work plan and a list of due diligence contents according to the actual situation and time node of the project;

2.1.6 Preliminary investigation: the entrusted party conducts an investigation based on the preliminary information provided by the entrusting party and the Internet public channels. Pre-investigation of the due diligence objectives involved in the project;

2.1.7 Data collection: The entrusted party draws up a list of data based on the preliminary investigation and actual needs, and collects data through the methods provided by the consignor, by the entity under investigation, and by self-collection;

2. 1.8 Interviews and visits: Based on the actual needs of the project, the entrusted party makes an interview list for the actual controllers, shareholders, senior managers, and core technical personnel of the target unit, and obtains relevant information through interviews and visits;

2.1.9 Verification information: for the entrusting party, The information provided by the target unit and the content learned from the interviews require the relevant units and personnel to make real and legal commitments. At the same time, the trustee needs to verify the relevant information and materials through credible channels such as government departments and third-party agencies;

2. 1.10 Communicate with third-party institutions: During the process of intellectual property due diligence, under the organization of the entrusting party, it is also necessary to maintain good communication with third-party institutions such as appraisal agencies and accountants, such as the arrangement of entry, data collection, interview arrangements and even In the process of information verification and other processes, the parties shall communicate and exchange in a timely manner the parts that overlap or may have mutual influence;Based on this, draft and write intellectual property due diligence report;

2.1.12 Feedback and revision: make necessary adjustments and revisions according to the feedback from the entrusting party and related institutions on the draft of the intellectual property due diligence report;

2.1.13 Supplementary due diligence: in the benchmark If there is a change in the time node such as the day, the main intellectual property target changes, or it is really necessary, carry out supplementary intellectual property due diligence according to the actual needs of the project;

2.1.14 Completion of the report: combined with intellectual property due diligence (including supplementary due diligence) According to the results of the entrusting party, refer to the feedback from the entrusting party, make final adjustments, and complete the intellectual property due diligence report;

2.1.15 Archive for future reference: In accordance with legal regulations, contractual agreements and internal requirements of the unit, further check the working papers, due diligence process of intellectual property due diligence The report shall be archived for future reference.

2.2 Determining the entrustment of

With the increasing emphasis on intellectual property, the scope and degree of due diligence requirements for intellectual property will inevitably change accordingly. According to the different entrusting subjects, purposes, and investigation objectives of intellectual property due diligence, the content that needs to be paid attention to in the process of determining the entrusting relationship is also very different.

2.2.1 The entrusting subjects of intellectual property due diligence are diverse, and different subjects have different purposes and needs for due diligence. However, due to the particularity of intellectual property rights, when the entrusting entity issues the demand for intellectual property due diligence, its own content and direction of due diligence may not be accurate.

2.2.2 When the professional intellectual property due diligence team receives the due diligence request from the entrusting party, it shall conduct a conflict of interest search on the matters to be entrusted in advance; Due diligence project characteristics, fully communicate with the entrusting party to understand the purpose of its intellectual property due diligence,Determine its actual needs and lay the foundation for the subsequent formulation of service plans and quotations.

2.2.3 When formulating a service plan, the identity of the client and the characteristics of the project should be fully considered, and service content that meets the actual needs of due diligence should be formulated in a targeted manner. For example, for intellectual property due diligence in the process of listing for the final issue of legal opinions, when formulating service content, more attention should be paid to the comprehensive investigation of the target entity’s intellectual property ownership and litigation; When investors conduct due diligence on intellectual property rights in the investment process of target companies, they also need to focus on the stability of intellectual property rights and the investigation and analysis of infringement risks.

2.2.4 Before formulating a service plan, based on the project information provided by the entrusting party, conduct a preliminary search on the main business and intellectual property ownership of the investigation target through public channels such as the Internet, and predict the workload of due diligence, so as to better Targeted development of service content and service quotations.

2.2.5 In view of the professionalism and particularity of intellectual property rights, when formulating service plans, taking into account the characteristics of the entrusting party and the affordability of expenses, it is also possible to serve the entrusting party on the basis of meeting the basic requirements of intellectual property due diligence for the project. Provide a variety of solutions for basic service content and in-depth service content (such as intellectual property rights stability, infringement risk or conflict with others' prior rights, etc.), and clarify to the entrusting party that different service content can ultimately obtain different levels of information for The entrusting party chooses according to its actual situation.

2.2.6 Regardless of whether the entrusting party is in the form of directional inquiry or open tendering, the interested intellectual property due diligence team should submit a written quotation or service plan to the entrusting party. can be adjusted accordingly,However, it should at least include a brief analysis of the relevant project, the scope and content of the proposed due diligence, and the corresponding quotation for the corresponding service content.

2.2.7 After the entrustment is confirmed, a written entrustment contract and power of attorney should be signed with the entrusting party on the intellectual property due diligence of the target project. The main points of the entrustment contract should include the basic information of the target company, the purpose of due diligence and the scope of services , delivery time and requirements of work results, service fees, rights and obligations of both parties, confidentiality agreement and other substantive content.

2.3 Forming a project team

After the entrustment relationship is determined, the entrusting party and the entrusting party shall establish the project separately, and jointly set up a project team to carry out intellectual property due diligence in a timely manner.

2.3.1 After the entrustment relationship is determined, the entrusting party and the entrusting party shall establish a project internally, arrange personnel and follow-up work, make a plan for the expected expenses, apply in advance and arrange for payment.

2.3.2 Intellectual property has the characteristics of being professional and interdisciplinary. The team members required for due diligence around intellectual property must also be professional and complex. Therefore, the entrusting party and the entrusting party should be organized according to the actual situation and needs of the project. The members of the project team can generally include management personnel, technical personnel, lawyers who focus on legal affairs, lawyers with technical background and other assistants, etc. designated by the client.

2.3.3 The project team shall designate a person in charge (generally the manager designated by the entrusting party) and a contact person; if the entrusted party assigns multiple people to participate in the intellectual property due diligence project, the contact person and the contact person of the entrusting party shall be responsible for the work. Arrange and connect.

2.3.4 According to the main content of intellectual property due diligence, the corresponding personnel assigned by the entrusted party will also be different. If the main investigation content is patented technology, lawyers with technical background shall be assigned to participate.Ideally, attorneys with similar technical backgrounds as the patent being investigated should participate.

2.3.5 Before determining the members of the project team, the trustee shall conduct self-examination on the proposed participants to ensure that the proposed participants and their close relatives have no conflict of interest or interest relationship with the project, and require the participants to sign a letter of commitment and Confidentiality Agreement.

2.4 Formulating a plan

After the project team is formed, a work plan should be formulated according to the background, specificity and requirements of the project, combined with various time nodes, and the personnel and the work content of each stage should be reasonably arranged.

2.4.1 Target companies with different orientations in different projects (including but not limited to brand-oriented, technology-oriented, entertainment-oriented and comprehensive, etc.) have large differences in the proportion of intellectual property rights objects, and different project backgrounds (Including but not limited to mergers and acquisitions, listing, overseas investment, intellectual property securitization, etc.) The content and direction of intellectual property due diligence are also quite different. Therefore, when formulating a work plan, it is necessary to fully consider the specific characteristics of a specific project, grasp the key content of the work, reasonably estimate the working time, and arrange suitable personnel according to the background requirements.

2.4.2 The entrusted party shall designate the person in charge of the project and take full responsibility for the due diligence work. The members participating in the project shall divide the work of the intellectual property due diligence content item by item, and sign the list of division of work to clarify the responsibilities.

2.4.3 The entrusted party shall fully communicate with the entrusting party and relevant agencies and other time points when formulating the work plan, and arrange various tasks reasonably; Actively communicate with the entrusting party, ask the entrusting party to coordinate, and plan in advance the time for entry, personnel interviews and information provision.

2.4.4 After the work plan has been formulated, it shall be sent to the client for review.For the opinions of the entrusting party on the work content and time arrangement, try to cooperate with the amendment, and if it is unable to cooperate with the amendment, it shall explain to the entrusting party.

2.4.5 After the work plan is formulated, if there is a change in the time node such as the base date or other major changes in the project, the work plan should be revised in time to ensure that the project process is not affected as much as possible.

2.5 Preliminary investigation

Before formal due diligence, it is recommended that the entrusted party conduct preliminary investigation on the basic information of the target company, so as to carry out the subsequent preparation of the target company's document supply list and interview outline and the verification of key materials.

2.5.1 Investigate industrial and commercial information: The trustee can inquire about corporate credit information through public channels, including business license information, information on shareholders and capital contributions, information on existence and change, information on branch offices, information on administrative licensing and punishment, information on dishonesty, etc.; The people's court publishes documents to inquire about the litigation-related information of the target company.

2.5.2 Investigate business information: learn about the target company's production and operation status, R&D status, main business and products through the target company's official website; learn about the target company's competitive advantages, the popularity of the company and related products and services through public media reports, etc. .

2.5.3 Investigate intellectual property information: query the target company's patent, trademark, copyright and domain name application, authorization, registration, registration, license, transfer and pledge information through the national public website or professional intellectual property database.

2.6 Data collection

After completing the preliminary investigation, the entrusted party should integrate the information collected by itself and the information provided by the entrusting party, sort out the project background and clarify the due diligence objectives again. Based on this goal, combined with the basic information and business model of the target company, a list of documents to be provided by the target company is drawn up.Ask them to provide appropriate information and verify.

2.6.1 Document supply list: In addition to listing the material names, the document supply list prepared by the entrusted party should also provide necessary explanations for professional documents or industry terms, and at the same time, it should clarify the method of supplying materials, such as whether to show the original, and the copies to be kept. The number of copies and the form of official seal, etc.

2.6.2 Industrial and commercial information: The trustee shall require the target company to present or retrieve the original industrial and commercial registration information file of the target company, which includes the business license, legal representative's identity certificate, application for establishment registration, shareholder identity certificate and capital contribution ratio , Articles of Association, capital verification report, capital contribution, office space certificate, bank account, previous changes, board information, branches, foreign investment, etc. It should be noted that the entrusted party needs to go through the entrustment procedures with the target company to obtain the file from the local administration for industry and commerce. In addition, the target company may also be required to provide other documents such as personnel organization charts as needed.

2.6.3 Administrative examination and approval: The entrusted party searches the relevant laws and regulations, policy regulations, industrial policies and other regulatory provisions of the target company's industry based on the preliminary investigation information to determine whether its business scope has special industry or industry guidance restrictions . For industries that require administrative approval or franchising, relevant approval documents, filing documents, etc. shall also be required.

2.6.4 Intellectual property: The trustee shall require the target company to present all its intellectual property certification documents, including but not limited to the notice of acceptance of patent application, notice of rejection, notice of grant of patent rights, patent certificate, patent issued by the State Intellectual Property Office Registration form, payment information, etc.; notice of acceptance of trademark application, notice of preliminary trial announcement, trademark registration certificate, renewal certificate, etc.; copyright registration application documents, copyright registration certificate; domain name filing information, etc. In particular, it should be noted that the target company has submitted an application or obtained authorization,However, the supporting documents of the information that has not been announced by the national publicity system.

2.6.5 Technical data: The entrusted party may request the target company to provide other technical data that are not protected in the form of intellectual property rights under Item 2.6.4, especially in the form of patents, such as data on scientific and technological projects under development, completed, and expected to be carried out, and technical achievements Materials, technology award certificates, project establishment and evaluation reports in the national science and technology system, completion status of technology transformation implementation projects, as well as the target company's management and confidentiality rules, regulations and agreements involving related technologies.

2.6.6 Relevant agreements: The trustee shall require the target company to provide all intellectual property related agreements, including but not limited to intellectual property or technology licensing contracts, transfer contracts, development contracts, etc., as well as the validity, filing and performance of the contracts.

2.6.7 Data summary: After collecting the data, the entrusted party should summarize and organize the data in a timely manner, indicating the source, type, whether the data is original, whether there is any relationship or conflict between the data and other basic information, and if necessary, make supplementary due diligence and Develop a list of supplementary information.

2.7 Interviews and visits

The trustee may directly contact the target company and its personnel by means of interviews and visits to understand or verify undisclosed or conflicting information.

2.7.1 The entrusted party shall fully communicate with the target company the purpose and significance of the due diligence investigation based on the requirements of the entrusting party and the project, reasonably determine the interviewee and arrange the interview time, so as to obtain the cooperation, understanding and cooperation of the target company and the interviewee. trust.

2.7.2 Before conducting the interview, the entrusted party shall issue a confidentiality commitment letter to the target company and the interviewee in advance, promising to undertake the confidentiality obligation of the target company's business information and technical information that has not been publicly disclosed during the interview and due diligence, so as to ensure The target company and interviewees fully disclose relevant information.

2.7.3 After identifying the interviewee,The entrusted party shall draw up an interview outline based on the position and position information of the interviewee, and especially shall focus on interviewing the information that has not been publicized or fully disclosed through public channels, and verify the conflicting information in the materials. The following exemplifies the interview content that should be paid attention to when conducting interviews with people in different positions:

(1) Company managers: First of all, the target company's managers should understand the general situation of the target company, such as operation status, production and operation mode, industry reputation, competition power and major competitors, litigation-related information, core intellectual property rights and/or technologies, research and development projects, research and development results, research and development plans, and research independence. Secondly, interviews should be conducted on the work experience of these personnel, whether they have signed confidentiality agreements and non-compete agreements, etc.; achievements, R&D plans, and research independence. At the same time, it is necessary to understand the position, specific work content, work experience, work results, etc. of the technical personnel to analyze whether the target company's intellectual property rights have the risk of ownership disputes.

2.7.4 Interview transcripts: The entrusted party shall assign at least two interviewers to conduct individual interviews with the interviewees, and make interview transcripts according to the interview contents. The interviewers and interviewees shall sign the transcripts after confirming that they are correct. The interview transcript should be attached with the interviewee's identity certificate and labor contract as attachments, and the interview process should be photographed and kept.

2.8 Information verification

After obtaining sufficient information through preliminary investigation, data collection, interviews, etc., the entrusted party needs to organize, summarize and screen the data to verify the authenticity and relevance of the data.

2.8.1 First of all, it should be emphasized that all relevant information should be subject to the information publicly disclosed by the relevant administrative departments.The information disclosed by the third-party website and the materials and interview records provided by the target company are used as confirmation or supplement. For information whose authenticity is doubtful, the entrusted party may verify with the relevant administrative department and request the administrative department to issue corresponding certification documents.

2.8.2 If the relevant information stated by the target company in the interview cannot be confirmed, it should be required to issue a letter of commitment to ensure the authenticity of the information and assume corresponding responsibilities. In order to ensure the accuracy and credibility of the data, it is recommended that the entrusted party conduct interviews with different interviewees about the same content, or use multiple methods to verify each other and obtain supporting materials.

2.9 Communicate with third-party agencies

In a due diligence project, intellectual property is often only one part of the content. In addition to intellectual property due diligence service units, the entrusting party will also entrust securities companies, accountants, asset appraisal agencies, auditors Institutions and other intermediaries work together to conduct due diligence on other content. At this time, the trustee should actively maintain communication with third-party agencies during the due diligence process to ensure the authenticity and consistency of the information.

2.9.1 When the entrusted party and the third-party agency jointly carry out due diligence work, the investigation content may overlap or overlap. Due to the different focus and purpose of the investigation, the angle of each party's exploration and analysis of the problem will be different. Therefore, it is recommended to During the due diligence process, the entrusted party regularly summarizes the conflicting or questionable information and related risks exposed during the investigation process, and regularly holds meetings with third-party institutions to verify each other’s problems, express their opinions and listen to others’ professional opinions. .

2.9.2 For some inter-professional or inter-disciplinary issues, such as the financial issues of the target company, the valuation of intellectual property assets, etc., the trustee should communicate with professional third-party institutions and refer to their professional opinions.in order to detect potential risks in time.

2.10 Report writing

After the investigation and analysis work is completed, the trustee shall integrate the contents of the investigation work, the analysis of the data involved in the investigation, the intellectual property issues found and the corresponding handling opinions, etc., and write them down in writing Report.

2.10.1 The intellectual property due diligence report should be targeted and consistent with the actual needs of the entrusting party and the purpose of conducting due diligence. The language of the report should be professional and concise, logically clear, coherent, and focused.

2.10.2 The preface of the intellectual property due diligence report shall include the following contents: statement of purpose of due diligence report and limitation of liability, interpretation of relevant terms, scope of entrustment and due diligence, and background of due diligence.

2.10.3 The main body of the due diligence report should include the following: the first part is the statement of facts, including the work plan and completion status; the basic information of the relevant personnel of the target company participating in the due diligence investigation, the intellectual property rights of the target company and its competitors, and relevant industry fields The second is the specific legal provisions applicable to the analysis of the relevant facts; the last is the legal risk analysis and recommendation part. Disclose the existing legal risks and provide professional handling opinions or solutions accordingly.

2.10.4 The due diligence process will involve a large amount of documents and materials. The entrusted party can use the list of materials provided by the entrusting party and the target company, documents that play an important role in the legal risks disclosed in the report, relevant certification materials, etc., and based on relevant materials. Organize the charts, summary tables and other information produced as attachments to the due diligence report to make the report more complete and comprehensive.

2.11 Feedback and revision

After the trustee has written the first draft of the intellectual property due diligence report,It should be provided to the entrusting party and third-party institutions participating in due diligence in a timely manner, and adjustments should be made based on feedback.

2.11.1 After receiving the feedback from the entrusting party, the entrusted party shall fully verify and verify the problems mentioned in the feedback in the principle of objectivity, professionalism and prudence before deciding whether to adopt it and make corresponding revisions in the report.

2.11.2 After the entrusted party completes the first draft of the report, if the entrusted party finds or is informed that the relevant facts have changed, the entrusted party shall communicate with the entrusting party, conduct supplementary due diligence or revise the contents of the report as necessary, and re-evaluate the legal risks of the project.

2.11.3 After completing the first draft of the report, if the entrusted party finds that the information obtained during the due diligence process is genuine, doubtful, incorrect or incomplete, or that major key information is omitted or newly discovered, it shall supplement it in a timely manner. Conduct due diligence and update relevant content in the due diligence report in a timely manner.

2.12 Completion of the report

On the basis of a comprehensive and systematic arrangement and review of the due diligence work, combined with relevant feedback and revision opinions, the trustee finally completed the intellectual property due diligence report.

2.12.1 The intellectual property due diligence report shall indicate the reporting date and the deadline for obtaining relevant materials, and attach the signature and seal of the trustee, indicating that it is legally responsible for the due diligence report and its results.

2.12.2 After the intellectual property due diligence report is completed and before signing, the trustee shall arrange for writers and non-writers to prudently check and cross-check the due diligence report, to avoid clerical errors or format errors, which are inconsistent with the working papers Wait for mistakes.

2.13 Archive for future reference

Intellectual property due diligence involves a lot of content and documents, it is necessary to completely preserve the work records formed in the process of issuing the intellectual property due diligence project report, as well as all documents and materials obtained during the work.In order to check and reflect the problems and deficiencies of the project work.

2.13.1 Intellectual property due diligence should establish a working paper system, which is an important evidence for judging whether the due diligence team is diligent and responsible.

2.13.2 The due diligence working papers filed for reference refer to the general term for various work records and important materials related to the project obtained and produced by the due diligence project members during the due diligence process.

2.13.3 The working papers shall truly, accurately and completely reflect the due diligence work carried out, and shall be able to cover and truthfully reflect all the data and materials of the entire intellectual property due diligence, as well as the analysis and evaluation of relevant personnel.

2.13.4 The production of working papers should be in standard format, clear records, concise and easy to understand, and clear in expression, and can be numbered, sorted and classified according to the logical sequence of project work, and a unified catalogue should be established for easy reference and verification. 2.13.5 All documents involved in the project should be archived for future reference, and the project members should be responsible for the filing and reference work. 2.13.6 All archived documents should fully reflect important information such as the name of the document, the content of the document, the source of the document, the handover personnel and the corresponding date, and be accompanied by the signature of the person in charge to form a strict entry and exit record. 2.13.7 For the relevant information obtained and confirmed from a third party other than the target company, in addition to indicating the source of the information, the project members should also implement necessary investigation procedures to form corresponding investigation records and necessary signatures. 2.13.8 Before filing all documents and materials for future reference, the working papers should be carefully checked. Once any omissions or other defects are found, they should be reported to the team leader in time.and take appropriate remedial measures in a timely manner. 2.13.9 The storage period of all paper and electronic documents for project filing shall be no less than ten years.

Appendix 1: IP Due Diligence Flowchart

Appendix 2: IP Due Diligence Report Sample

Intellectual Property Due Diligence Report on ***Project

Foreword

Legal Responsibility Statement

***The Law Firm is entrusted with *** Conduct legal due diligence on the intellectual property status and risks of the project (hereinafter referred to as "the project"), and issue this report to the client (hereinafter referred to as the "client") who is responsible for this legal due diligence.

This report is based on the documents, explanations, interviews and other information provided by relevant personnel to our lawyers as of the date of this report, as well as information obtained by our lawyers through public inquiries.

This report is based solely on the information the firm has obtained so far from the information provided by the target company and the facts verified by the firm. Therefore, if further information becomes available to the Firm after the publication of this report, this report will need to be updated accordingly and may cause some of the conclusions contained therein to change.

The firm only conducts due diligence on this intellectual property from the perspective of Chinese law and at the request of the client. The analysis and suggestions made by the firm in this report are based on the laws and regulations that have been publicly released and are currently in force in China as of the date of this report. The firm does not express any opinion on investment decisions such as project feasibility, technical level, development prospects, etc., as well as other legal issues other than Chinese legal issues.

This report is issued to the client only for the purpose stated in this report. Without the prior written consent of the firm, this report shall not be used by any other unit or individual, nor shall it be used for any other purpose.

Definitions of related terms

In this report,除非文义另有所指，下列用语具有下述涵义：

简称	指	全称
	指
	指
	指

正文

一、本项目知识产权尽职调查的背景

二、本所工作计划及工作内容

3. Basic information of the participants in this project

4. Scope of intellectual property due diligence in this project

5. Basic intellectual property status of the target company

6. Legal risk analysis and suggestions

7.Appendix

Appendix

Appendix document list

Appendix 1 : Interview photos

Attachment 2: Interview records

Attachment 3: Labor contracts of the survey respondents (confidentiality agreement, non-compete agreement)

Attachment 4: Intellectual property documents: including but not limited to patent certificates (including patent specifications, patent claims , important documents issued by administrative agencies, etc.), copyright registration and modification documents,Trademark certificate and change notice, domain name registration certificate, etc.)

Attachment 5: Intellectual property related honors

Attachment 6: Intellectual property contract

Attachment 7: Letter of commitment/guarantee名称

文件主要内容

是否原件

交接人及日期

备注

.授权手续

1.1

利益冲突检索

授权手续及保密承诺

1.2

委托合同

1.3

保密协议及承诺书

.目标公司基本信息

.著作权

.商标权

. Patent rights The time of obtaining the right, the method of obtaining it, the term of protection, and the payment of annual fees项权利

.商业秘密及管理

. 域名

. Information about litigation .3

Appendix 4: Commonly used websites for intellectual property due diligence

1. Commonly used websites for corporate information inquiry:

1, National Enterprise Credit Information Publicity System: http://www.gsxt.gov.cn /index.html;

2, Tianyancha: https://www.tianyancha.com/;

3, Qixin Insurance: http://www.qixin.com/;

4, Qixinchacha: http://www .qichacha.com;

5, National Organization Code Management Center: www.nacao.org.cn.

2.1	营业执照	目标企业的成立背景、登记注册时间、历史沿革、经营范围、股权结构、对外投资、业务经营等基本信息
2.2	章程
2.3	工商登记资料
2.4	员工名册	研发机构体制及设置、研发人员构成及资历等
2.5	财务报表	研发费用及投入情况
3.1	著作登记证书、时间戳等	著作权的权属情况（是否涉及职务作品、委托作品、 Cooperative works, etc.); the time of initial acquisition of copyright, the method of acquisition, and the term of protectionml17
3.3	作品清单	著作权的权利类型等
3.4	他项权利证书	是否存在他项权利
4.1	商标注册证、核准转让注册商标证明等	商标的权属情况、取得方式(such as: original acquisition, subsequent acquisition, etc.), acquisition time, protection period, renewal fees, etc不被核准注册的情况等
4.3	他项权利证书	是否存在他项权利
4.4	荣誉证书等	商标的使用情况及驰名状态等
4.5	核准续展注册证明	Payment and renewal of trademarks, etc.
5.4	荣誉证书等	专利的使用情况
6.1	商业秘密文件	商业秘密的内容、数量、范围、重要程度及采取的保护措施
6.2	保密协议、竞业Restriction agreements, etc.	Confidentiality system, personnel management, archive management, anti-disclosure mechanism, training work, reward and punishment measures, resignation management and other trade secret management measures公式等	目标公司的技术积累和知识经验等专有技术情况
7.2	技术许可协议	专有技术对外许可情况
7.3	管理规章制度	对专有技术的管理制度
8.1	域名Situation	Ownership of the domain name, acquisition time, acquisition method, etc.
8.2	Others7
News about the target company's litigation
0. Implementation and operation
10.1	license agreement如：转让、许可、质押、出资等
10.2	转让协议、质押合同
10.3	出资协议等
1. 访谈记录及受访者提供的证明材料
11.1	访谈记录
11.2	访谈图片、音频等
11 .3	Evidence provided by respondents

. Commonly used websites for inquiring about litigation information:

1, China Judgment Documents Website: http://wenshu.court.gov.cn/;

2, China Intellectual Property Judgment Documents Website: http://ipr.court.gov .cn/;

3, Peking University Magic Weapon: http://www.pkulaw.cn/;

4, Worcester First: http://law.wkinfo.com.cn/;

5, OpenLaw: http:// openlaw.cn/;

6, non-litigated cases: https://www.itslaw.com/;

7, Caseshare: http://www.caseshare.cn.

. Commonly used copyright inquiry websites:

1, National Copyright Administration website: http://www.ncac.gov.cn/;

2, National Copyright Protection Center (National Copyright Registration Portal): http://www. gapp.gov.cn/govservice/108.shtml;

3, China Copyright Protection Center: http://www.ccopyright.com.cn/;

4, China Copyright Online: http://www.chinacopyright.org.cn ;

5, Qichacha: https://www.qichacha.com/more_zzqs.

4. Commonly used trademark inquiry website:

1, China Trademark Website: http://sbj.saic.gov.cn/;

2, ITAOTM Trademark Inquiry Website: http://www.itaotm.com/;

3, Trademark Classification Table: http://www .sbfl.cn/;

4, Qichacha: https://www.qichacha.com/more_brands;

5, Wisdom Bud trademark patsnap: http://trademark.patsnap.cn;

6, Madrid international trademark search: http ://www.wipo.int/romarin;

7, EU trademark search: https://oami.europa.eu/ohimportal/en/.

5. Commonly used patent search websites:

1, Comprehensive service platform of State Intellectual Property Office: http://www.sipo.gov.cn/zhfwpt/;

2, China Patent Information Network: http://www.patent. com.cn;

3, Patent search and analysis: http://www.pss-system.gov.cn/sipopublicsearch/portal/index.shtml;

4, SooPAT patent search: http://www.soopat.com/;

5, incoPat technology innovation intelligence platform: http://www.incopat.com/#page1;

6, patsnap wisdom bud: http://www.zhihuiya.com/;

7, INNOJOY: http://www.innojoy.com/searchresult/default.html;

8, US patent and trademark query: http://www.uspto.gov.

6. Commonly used domain name query website:

1, Ministry of Industry and Information Technology ICP/IP address/domain name information record management system: http://www.miitbeian.gov.cn/publish/query/indexFirst.action;

2, website Long tool: http://tool.chinaz.com/;

3, whois query-China million net: https://whois.aliyun.com.

Appendix 5: Summary of Commonly Used Regulations for Intellectual Property Due Diligence

I. Regulations on Intellectual Property Due Diligence

1, Securities Law of the People's Republic of China (2014)

2, Law Firm Securities Law Practice Rules (for Trial Implementation) (China Securities Regulatory Commission 2010)

3, Administrative Measures for Law Firms Engaged in Securities Legal Business (China Securities Regulatory Commission, Ministry of Justice of the People's Republic of China 2007)

4, Administrative Measures for Initial Public Offering and Listing on the Growth Enterprise Market (Order of China Securities Regulatory Commission 2015 Revised in 2009)

5. Guidelines for the Contents and Formats of Information Disclosure by Public Offering Companies No. 6 (revised by China Securities Regulatory Commission in 1999)

6, Regarding the comprehensive strengthening of intellectual property adjudication work for the construction of innovation Opinions on Providing Judicial Guarantee for a Model Country (Supreme People's Court, 2007)

7. Circular on Further Strengthening Judicial Protection of Intellectual Property Rights (Supreme People's Court, 2004)

8, Opinions on Several Issues concerning Intellectual Property Judgment and Serving the Overall Situation under the Current Economic Situation (Supreme People's Court, 2009)

9, Regarding Criminal Handling of Intellectual Property Infringement Interpretation of Several Issues Concerning the Specific Application of Law in Cases II (Supreme People's Court, Supreme People's Procuratorate, 2007)

10, Interpretation of Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Intellectual Property Infringement (Supreme People's Court, Supreme People's Procuratorate, 2004)

II. Copyright-related regulations

1, Copyright Law of the People's Republic of China (2010)

2, Regulations on the Implementation of the Copyright Law of the People's Republic of China (revised by the State Council in 2013)

3, Regulations on the Collective Administration of Copyright (revised by the State Council in 2013)

4, Regulations on the Protection of Information Network Dissemination Rights ( State Council Revised in 2013)

5, Computer Software Protection Regulations (revised by the State Council in 2013)

6, Provisions on the Implementation of International Copyright Treaties (State Council 1992)

7, Copyright Pledge Registration Measures (National Copyright Administration 2011)

8, Computer Software Copyright Registration Measures (National Copyright Administration, 2002)

9, Provisions on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Infringing the Right of Information Network Dissemination (Supreme People's Court, 2013)

10, Interpretation on Several Issues concerning the Application of Law in the Trial of Copyright Civil Disputes Court 2002)

3. Trademark-related regulations

1, Trademark Law of the People's Republic of China (revised in 2013)

2, Regulations on the Implementation of the Trademark Law of the People's Republic of China (revised in 2014 by the State Council)

3, Trademark Examination and Trial Standards (State Administration for Industry and Commerce 2017 Revised in 2014)

4, Provisions on the Recognition and Protection of Well-known Trademarks (State Administration for Industry and Commerce, 2014)

5. Provisions on the Procedures for the Registration of the Pledge of the Exclusive Right to Register a Trademark (State Administration for Industry and Commerce, 2009)

6, Interpretation of the Supreme People's Court on the Jurisdiction of Trademark Cases and the Application of Law after the Implementation of the Decision on the Amendment of the Trademark Law (The Supreme People's Court, 2014)

7, Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases Involving the Protection of Well-known Trademarks (Supreme People's Court, 2009)

8, Interpretation of Several Issues on the Application of Law in the Trial of Trademark Civil Dispute Cases (Supreme People's Court, 2002)

IV. Patent-related regulations

1, Patent Law of the People's Republic of China (revised in 2008)

2, Law of the People's Republic of China on Promoting the Transformation of Scientific and Technological Achievements (revised in 2015)

3, Law of the People's Republic of China on Progress in Science and Technology (revised in 2007)

4, Patent of the People's Republic of China Regulations for the Implementation of the Law (revised by the State Council in 2010)

5, Regulations on Patent Agency (revised by the State Council in 1991)

6, Regulations on National Defense Patents (revised by the State Council and the Central Military Commission in 2004)

7, Guidelines for Patent Examination (revised by the State Intellectual Property Office in 2017)

8, Patents Administrative Law Enforcement Measures (Amended by the State Intellectual Property Office in 2015)

9, Measures for Compulsory Licensing of Patent Implementation (Amended by the State Intellectual Property Office in 2012)

10 Several Provisions on the Application of Law in the Trial of Patent Dispute Cases (Amended by the Supreme People's Court in 2015)

11, on Several Provisions on the Application of Legal Issues to Suspension of Patent Infringement Before Litigation (Supreme People's Court, 2001) Provisions (State-owned Assets Supervision and Administration Commission of the State Council, 2010)

3, Several Provisions on Prohibiting Infringement of Trade Secrets (State Administration for Industry and Commerce 1Amended in 1998)

4, Interpretation of Several Issues Concerning the Application of Law in the Trial of Unfair Competition Civil Cases (Supreme People's Court, 2007)

6. Domain Name Relevant Regulations

1, China Internet Network Information Center Domain Name Dispute Resolution Procedure Rules (China Internet Network Information Center) Revised in 2012)

2, China Internet Network Information Center Domain Name Registration Implementation Rules (revised in 2012 by China Internet Network Information Center)

3, Uniform Dispute Resolution Policy (Uniform Dispute Resolution Policy,Internet Corporation for Assigned Names and Numbers (ICANN) 1999)

4, Notice of the General Office of the China Banking Regulatory Commission on Strengthening Domain Name Protection of Banking Financial Institutions (China Banking Regulatory Commission 2010)

5, Ministry of Industry and Information Technology on Strengthening the Internet Circular on the Security Guarantee of Domain Name System (Ministry of Industry and Information Technology, 2010)

6, Interpretation on Several Issues concerning the Application of Law in the Trial of Civil Disputes Involving Computer Network Domain Names (Supreme People's Court, 2001)

VII. Other Relevant Provisions

1, On Trial Provisions on Several Issues in Civil Dispute Cases of Conflicts between Registered Trademarks, Enterprise Names and Prior Rights (Supreme People's Court, 2008)

2, Regulations of the People's Republic of China on the Protection of New Plant Varieties (revised by the State Council in 2014)

3, Regulations on the Protection of Layout Designs of Integrated Circuits (State Council, 2011)

4, Notice of the General Office of the State Council on Issues Concerning Strengthening the Management of Integrated Circuit Cards (General Office of the State Council, 1997)

5, Notice of the Supreme People's Court on Carrying out Trials of Cases Involving Layout Design of Integrated Circuits (Supreme People's Court 2011 Year)

6, Regulations of the People's Republic of China on the Administration of Technology Import and Export (revised by the State Council in 2011)

7, Administrative Measures for the Registration of Technology Import and Export Contracts (revised in 2009 by the Ministry of Commerce)

8, General Office of the Ministry of Commerce on the import and export of dual-use items and technologies Notice on the Issue of Certificate Replacement (Ministry of Commerce, 2007)

9, Interpretation on Several Issues Concerning the Application of Law in the Trial of Technology Contract Dispute Cases (Supreme People's Court, 2005)

---

Source [Fist Clap] All China Lawyers Association

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