0203001 Informal Interpretation

us-ftc-hsr-informal-interpretations-5fafd5503962e7870a26cf40cf9872620203001 Informal InterpretationGuidance

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Date
Rule
802.50
Staff
Michael Verne
Response/Comments
1) A co-exclusive license where the licensor retains rights to the IP is not considered by the PNO to be an exclusive license. 2) An exclusive license for a geographic area outside of the US is considered an asset located outside of the US for purposes of 802.51(a) (Note: Soon will be 802.50).

Question

From: [redacted]
To: mverne@ftc.gov
Date: 3/6/02
Subject: Intellectual property

Hi I have a transaction where pursuant to a License Development and Commercialization Agreement, Company A ( a US company) will transfer the following to Company B (a Japanese Company):

1. A co-exclusive license, without the right to sublicense to a third party. The license rights granted are limited to the research, development and commercialization of the licensed products(s) undertaken jointly by A and B.

2. An exclusive license limited to a limited geographic area (Asia).

Questions:

1. Does the PNO view a co-exclusive license as an asset under these circumstances?

2. Because B is a foreign company and the exclusive license is limited to a foreign jurisdiction would that part of the transaction be exempt under 802.51?

I would be most grateful for your guidance. Thank you.

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