Today the Federal Trade Commission (FTC) announced proposed
changes to the Hart-Scott-Rodino (HSR) premerger notification rules
that will impact the types of transactions for which pharmaceutical
companies will be required to file HSR notifications with the
Department of Justice and FTC. The proposed rulemaking is
meant to clarify when a transfer of exclusive rights to a patent in
the pharmaceutical industry results in a potentially reportable
acquisition of assets under the HSR Act.
Previously -- although never actually codified -- the FTC would
determine whether the transfer of rights to a patent (usually in
the form of a license) was a reportable event under the HSR Act by
focusing on whether the licensor transferred the exclusive rights
to "make, use and sell" under a patent. The
emphasis on the transfer of the exclusive right to manufacture
would result in scenarios where parties would not be required to
report the transfer of patent rights because although the
