2402001 Informal Interpretation

Sheinberg, Samuel I.
From: 	HSRHelp
Sent: 	Thursday, February 22, 20 24 9:4 9 AM
To: 	Walsh, Kat h ry n E. ; Be r g, Karen E. ; Musi ck, Vessel in a; Sheinberg, Sam ue l I. ; Six, Ann e; Whit eh ead, Nora;
Fetterman, Mi chelle; Burton, Jun e; Larson, Peter
Subject: 	FW : Exclusive Li ce nse and 80 2.5 0
From: Shaffer, Kr istin < kshaffer@ftc.gov>
To:
Cc: 	e p < 	e p 	c.gov>
Subject: RE: Exclusive License and 802.50
Sent: Thursda , Februa 	22, 2024 9:49:17 AM
From:
Sent: 	nes ay, 	e ruary 	,
Please see th is informal: https://www. ftc .gov/legal-library/browse/hsr-informal-interpretations/1703001
-Exclusive licenses that have no nexus to the United States are not US assets. If any portion of the li cense, includi ng
goodwill, is re lated to the US, that portion w ould need to be valued and included in the si ze of transaction.
Best regards,
Kr istin
Kristin Shaffer
Attorn ey
Pre merg er Noti fi ca t ion O ffice
Federal Trade Commission
2 02-326-2 388 I ksha ffe r @ftc. gov
:00) Eastern Time ( US & Canada )
To: HSRHelp < HSRHelp@ftc.gov>
Subject: Exclusive License and 802.50
Dear PNO,
I hope a ll is well. I w rite to seek clarification on the applicabili ty of 802.50 to an exclusive license between t wo non-U.S.
ent ities for the globa l manufacture and sa le of a patented product, including in the U.S. I have found several dated
informa l i nterpretat ions indicating that the non-U.S. port ions of the exclusive license are exempt pursuant to 802.50.
See, e.g., Informal Interpretation 0203001 (stating that exclusive licenses for geographic areas outside the U.S. are
considered assets located outside the U.S. for purposes of 802.50); Informa l Interpretat ion 0606010 (indicating that the
exclusive license at issue w as an asset located outside the U.S . for purposes of 802.50 because its source of revenue and
" know-ho w" w as exclusively European). In turn, I found another informal i nterpretat ion indicating that the U.S. port ion
of the license would be considered an acquisition of an asset for HSR purposes and not subject to 802.50. See Informal
Interpretation 0807006 (indicating that the U.S. port ion of a mult i-country exclusive license shou ld be considered an
acquisition of an asset in the U.S. ). I unfortunate ly have not been able to find more recent guidance and would therefore
appreciate confirmation that (a) the non-U.S. portions of the exclusive license are exempt pursuant to 802.50; and (b)
the U.S . portion of the exclusive license (assuming that the U.S . w ill be a source of revenue and "know -how") is
considered an acquisition of an asset for HSR purposes and that the size of transaction is the fair market val ue of the
exclusive license in the U.S.
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Many than ks,
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