| Summary: | 碩士 === 東吳大學 === 法律學系 === 93 === In view of demands on intellectual property rights (IPR) from the high-tech industry, as well as the preferential measures on mergers and acquisitions (M&A) which creates the trend of M&A related to IPR, this paper focuses on the legal problems regarding IPR in M&A. To reduce legal risk and correctly evaluate the effects of IPR in M&A are the main purposes of this paper. Except for the different legal matters, which possibly face for the different IPR and the different industrial domains, the paper also discusses the appraisal related legal problems regarding its advantage and shortcoming to M&A. In the first chapter, the research goal and motive are introduced, including the importance of IPR to M&A and the related problems of IPR in M&A. In the second chapter, the importance of IPR to M&A is indicated. The IPR discussed in this paper limited to patent, trademark, copyright, trade secret, and integrated circuit layout. Their characteristics are listed. The role that IPR plays in M&A is also illustrated; especially for the enterprises which IPR has become its core value. The IPR plays a very important role, but high risk of IPR must be noticed. Inappropriate evaluation instead will cause the enterprise pays much higher defeat price. In the third chapter, as the legal liability and risk involved in M&A are complicated, the analysis of this paper will limit to IPR directly related legislature, including patent law, trademark law, copyright law, trade secret law, integrated circuit layout law, fair trade law, tax law and related preferential benefit rules. In the process of M&A, as IPR related legislature is quite insufficient, the civil law must be applied. However, as there are many differences in the characteristics between intellectual property rights and tangible property rights regulated in the civil law, the application is very difficult. For the IPR related legislation, it is suggested that the government should mold the advantageous condition as far as possible, and keep open and free competition market mechanism, which would be beneficial for the enterprise M&A strategic utilization. The fourth chapter discuss the evaluation on IPR, including key issues on due diligence (Ex. consideration on the different system of patent granted to the first to invent or the first to apply, infringement possibility, claim scope, trademark network
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use, assignment recording, licensing, employment contract, customer data, etc.). Appropriate due diligence can prevent the problems or any lawsuit raised after M&A. The fifth chapter discusses appraisal of IPR in M&A. The above-mentioned legal problems all have effects on the value of IPR, which reveals the difficulty of appraisal. In the various appraisal methods, domestic industries deem the free cash flow method of the income approach for appraising intangible assets more acceptable, but also recognize its difficulty. Most enterprises also approve the specialized organization to be established. As for the appraisal legal system, the rapid change of high tech industry must be considered. The rigid appraisal stipulation might have opposite effects. The key issue should lie in the establishment of appraisal organization with the government surveillance. The overseas experience can be considered for regulating the responsibilities and the principle that the appraisers should follow. In the sixth chapter, the clauses related to IPR in the contract of M&A are analyzed. The most important clauses include the list of all transferred IPR, warranties and representations clause, indemnification clause, and arbitration clause, etc. Moreover to prepare other related documents is also helpful to assure the bilateral rights and interests. In consideration of the characteristics of IPR, in listing the warranties and representations clause and indemnification clause, the different domain and region should have the different clauses; an identical clause is insufficient for all different types of IPR involved. The seventh chapter is the conclusion of the above chapters. It is proposed in the abstract way, and briefly explains the research limit. The current problems are pointed out and the future prospectus is also illustrated.
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