FTC explains pending sale of Fischer assets to Siemens

Siemens Medical Solutions is poised to enter the prone stereotactic breast biopsy market later this year, as the result of a consent agreement signed last week by Hologic and the Federal Trade Commission regarding assets Hologic purchased last year from Fischer Imaging (DI SCAN 7/10/06, FTC scuttles Hologic purchase of some Fischer Imaging assets).

Confidentiality agreements govern disclosures regarding the agreement involving Fischer's MammoTest prone biopsy assets. As a result, some details are unknown, including how Siemens ultimately landed these assets. Interviews between DI SCAN and FTC staff attorneys, however, illuminate much of the process.

Tammy Imhoff, a staff attorney in the FTC Bureau of Competition involved in the Hologic/Fischer case, stated emphatically that the commission did not pick Siemens, but rather reviewed - favorably - Hologic/Fischer's choice of the company.

"We don't want to become a deal broker and tell parties who they have to divest assets to," Imhoff said. "Our view is that they have to meet our criteria, and that includes having a package of assets that is sufficient and can be an independent and strong competitor."

Siemens meets these requirements as they relate to the Fischer prone biopsy assets.

"We feel very strongly that, with these assets, Siemens can be every bit as competitive as Fischer was before the acquisition," said Jeffrey H. Perry, another FTC Bureau of Competition staff attorney involved in the case. "The company is on a tier that not many other companies share in terms of its ability to compete in these diagnostic imaging markets and even in the narrower field of breast imaging and breast biopsy. We think it is an ideal solution with an ideal buyer for the assets."

As part of the consent agreement, Hologic has agreed to sell all of the intellectual property relating to the Fischer MammoTest system to Siemens AG for a cash payment of $6.5 million. This agreement was achieved as part of a method known as buyer up-front.

Perry explained that this method identifies the assets that must be sold, as well as the buyer of those assets, before the FTC order is accepted. Alternatively, the FTC may simply identify the package of assets that must be divested and leave identification of the buyer until after the commission's order is accepted. The latter approach, known as a post-order divestiture, is typically used when the assets being divested constitute a stand-alone business. That is not the situation with Hologic and Fischer, which had been (and in the case of Hologic continues to be) involved in various aspects of mammography and x-ray imaging.

In either case, however, the FTC conducts a two-part analysis:

• Determine whether the buyer is suitable, a decision tied primarily to its commitment to enter the market and its ability to do so effectively (but one that could be negated if the company itself would pose an anticompetitive issue); and

• Ensure that the assets to be divested are sufficient to create an effective competitor.

The FTC necessarily gets involved early in the "buyer up-front" divestiture, but the commission's analysis is exactly the same in both cases, according to Perry. The FTC also strives not to penalize the company ordered to divest assets.

In Hologic's case this means that it will retain a "royalty-free, nonexclusive, perpetual, irrevocable, worldwide right and license to use the intellectual property relating to the MammoTest system," according to the company.