FTC Amendments To Premerger Notification Rules: The Who, What & Why

On November 6, 2013, the Federal Trade Commission released final amendments to the Hart-Scott-Rodino Premerger Notification Rules to clarify when a transaction involving the transfer of rights to all or part of a pharmaceutical (including biologics) patent is reportable under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act").

The final rule, which is the same as the proposed rule circulated a year ago for public comment, codifies an "all commercially significant rights" test to determine whether a transfer of rights has occurred in an exclusive patent license agreement.  Under that rule, if a patent licensor transfers all commercially significant rights to the patent, the transaction may be reportable.  The final rule states that if "limited manufacturing rights" are retained by the licensor, then the transaction may also be reportable under the Act.