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15 USC CHAPTER 69 - COOPERATIVE RESEARCH 01/06/03

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TITLE 15 - COMMERCE AND TRADE

CHAPTER 69 - COOPERATIVE RESEARCH

.

-HEAD-

CHAPTER 69 - COOPERATIVE RESEARCH

-MISC1-

Sec.

4301. Definitions.

4302. Rule of reason standard.

4303. Limitation on recovery.

(a) Amount recoverable.

(b) Recovery by States.

(c) Conduct similar under State law.

(d) Interest.

(e) Applicability.

4304. Award of costs, including attorney's fees, to substantially

prevailing party; offset.

4305. Disclosure of joint venture.

(a) Written notifications; filing.

(b) Publication; Federal Register; notice.

(c) Effect of notice.

(d) Exemption; disclosure; information.

(e) Withdrawal of notification.

(f) Judicial review; inapplicable with respect to

notifications.

(g) Admissibility into evidence; disclosure of

conduct; publication of notice; supporting or

answering claims under antitrust laws.

4306. Application of section 4303 protections to production of

products, processes, and services.

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15 USC Sec. 4301 01/06/03

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TITLE 15 - COMMERCE AND TRADE

CHAPTER 69 - COOPERATIVE RESEARCH

-HEAD-

Sec. 4301. Definitions

-STATUTE-

(a) For purposes of this chapter:

(1) The term ''antitrust laws'' has the meaning given it in

subsection (a) of section 12 of this title, except that such term

includes section 45 of this title to the extent that such section

45 of this title applies to unfair methods of competition.

(2) The term ''Attorney General'' means the Attorney General of

the United States.

(3) The term ''Commission'' means the Federal Trade Commission.

(4) The term ''person'' has the meaning given it in subsection

(a) of section 12 of this title.

(5) The term ''State'' has the meaning given it in section

15g(2) of this title.

(6) The term ''joint venture'' means any group of activities,

including attempting to make, making, or performing a contract,

by two or more persons for the purpose of -

(A) theoretical analysis, experimentation, or systematic

study of phenomena or observable facts,

(B) the development or testing of basic engineering

techniques,

(C) the extension of investigative findings or theory of a

scientific or technical nature into practical application for

experimental and demonstration purposes, including the

experimental production and testing of models, prototypes,

equipment, materials, and processes,

(D) the production of a product, process, or service,

(E) the testing in connection with the production of a

product, process, or service by such venture,

(F) the collection, exchange, and analysis of research or

production information, or

(G) any combination of the purposes specified in

subparagraphs (A), (B), (C), (D), (E), and (F),

and may include the establishment and operation of facilities for

the conducting of such venture, the conducting of such venture on

a protected and proprietary basis, and the prosecuting of

applications for patents and the granting of licenses for the

results of such venture, but does not include any activity

specified in subsection (b) of this section.

(b) The term ''joint venture'' excludes the following activities

involving two or more persons:

(1) exchanging information among competitors relating to costs,

sales, profitability, prices, marketing, or distribution of any

product, process, or service if such information is not

reasonably required to carry out the purpose of such venture,

(2) entering into any agreement or engaging in any other

conduct restricting, requiring, or otherwise involving the

marketing, distribution, or provision by any person who is a

party to such venture of any product, process, or service, other

than -

(A) the distribution among the parties to such venture, in

accordance with such venture, of a product, process, or service

produced by such venture,

(B) the marketing of proprietary information, such as patents

and trade secrets, developed through such venture formed under

a written agreement entered into before June 10, 1993, or

(C) the licensing, conveying, or transferring of intellectual

property, such as patents and trade secrets, developed through

such venture formed under a written agreement entered into on

or after June 10, 1993,

(3) entering into any agreement or engaging in any other

conduct -

(A) to restrict or require the sale, licensing, or sharing of

inventions, developments, products, processes, or services not

developed through, or produced by, such venture, or

(B) to restrict or require participation by any person who is

a party to such venture in other research and development

activities,

that is not reasonably required to prevent misappropriation of

proprietary information contributed by any person who is a party

to such venture or of the results of such venture,

(4) entering into any agreement or engaging in any other

conduct allocating a market with a competitor,

(5) exchanging information among competitors relating to

production (other than production by such venture) of a product,

process, or service if such information is not reasonably

required to carry out the purpose of such venture,

(6) entering into any agreement or engaging in any other

conduct restricting, requiring, or otherwise involving the

production (other than the production by such venture) of a

product, process, or service,

(7) using existing facilities for the production of a product,

process, or service by such venture unless such use involves the

production of a new product or technology, and

(8) except as provided in paragraphs (2), (3), and (6),

entering into any agreement or engaging in any other conduct to

restrict or require participation by any person who is a party to

such venture, in any unilateral or joint activity that is not

reasonably required to carry out the purpose of such venture.

-SOURCE-

(Pub. L. 98-462, Sec. 2, Oct. 11, 1984, 98 Stat. 1815; Pub. L.

103-42, Sec. 3(b), (c), June 10, 1993, 107 Stat. 117, 118.)

-MISC1-

AMENDMENTS

1993 - Subsec. (a)(6). Pub. L. 103-42, Sec. 3(b), struck out

''research and development'' after ''joint'' in introductory

provisions, inserted subpars. (D) and (E), redesignated former

subpars. (D) and (E) as (F) and (G), respectively, inserted ''or

production'' after ''research'' in subpar. (F), substituted ''(D),

(E), and (F)'' for ''and (D)'' in subpar. (G), and substituted

''such venture'' for ''research'' after ''facilities for the

conducting of'' in concluding provisions.

Subsec. (b). Pub. L. 103-42, Sec. 3(c)(1), struck out ''research

and development'' before ''venture'' in introductory provisions.

Subsec. (b)(1). Pub. L. 103-42, Sec. 3(c)(2), substituted ''if

such information is not reasonably required to carry out'' for

''that is not reasonably required to conduct the research and

development that is''.

Subsec. (b)(2). Pub. L. 103-42, Sec. 3(c)(3), amended par. (2)

generally. Prior to amendment, par. (2) read as follows:

''entering into any agreement or engaging in any other conduct

restricting, requiring, or otherwise involving the production or

marketing by any person who is a party to such venture of any

product, process, or service, other than the production or

marketing of proprietary information developed through such

venture, such as patents and trade secrets, and''.

Subsec. (b)(3). Pub. L. 103-42, Sec. 3(c)(4), in subpar. (A)

substituted '', developments, products, processes, or services not

developed through, or produced by,'' for ''or developments not

developed through'', in subpar. (B) substituted ''any person who is

a party to such venture'' for ''such party'', and at end of

concluding provisions substituted comma for period.

Subsec. (b)(4) to (8). Pub. L. 103-42, Sec. 3(c)(5), added pars.

(4) to (8).

SHORT TITLE OF 1993 AMENDMENT

Section 1 of Pub. L. 103-42 provided that: ''This Act (enacting

section 4306 of this title, amending this section and sections 4302

to 4305 of this title, enacting provisions set out as notes under

this section and section 4305 of this title, and amending a

provision set out as a note under this section) may be cited as the

'National Cooperative Production Amendments of 1993'.''

SHORT TITLE

Section 1 of Pub. L. 98-462, as amended by Pub. L. 103-42, Sec.

3(a), June 10, 1993, 107 Stat. 117, provided that: ''This Act

(enacting this chapter) may be cited as the 'National Cooperative

Research and Production Act of 1993'.''

COOPERATIVE RESEARCH AND PRODUCTION; CONGRESSIONAL STATEMENT OF

FINDINGS AND PURPOSE

Section 2 of Pub. L. 103-42 provided that:

''(a) Findings. - The Congress finds that -

''(1) technological innovation and its profitable

commercialization are critical components of the ability of the

United States to raise the living standards of Americans and to

compete in world markets;

''(2) cooperative arrangements among nonaffiliated businesses

in the private sector are often essential for successful

technological innovation; and

''(3) the antitrust laws may have been mistakenly perceived to

inhibit procompetitive cooperative innovation arrangements, and

so clarification serves a useful purpose in helping to promote

such arrangements.

''(b) Purpose. - It is the purpose of this Act (see Short Title

of 1993 Amendment note above) to promote innovation, facilitate

trade, and strengthen the competitiveness of the United States in

world markets by clarifying the applicability of the rule of reason

standard and establishing a procedure under which businesses may

notify the Department of Justice and Federal Trade Commission of

their cooperative ventures and thereby qualify for a single-damages

limitation on civil antitrust liability.''

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 4305, 4306 of this title;

title 42 section 13541.

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15 USC Sec. 4302 01/06/03

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TITLE 15 - COMMERCE AND TRADE

CHAPTER 69 - COOPERATIVE RESEARCH

-HEAD-

Sec. 4302. Rule of reason standard

-STATUTE-

In any action under the antitrust laws, or under any State law

similar to the antitrust laws, the conduct of any person in making

or performing a contract to carry out a joint venture shall not be

deemed illegal per se; such conduct shall be judged on the basis of

its reasonableness, taking into account all relevant factors

affecting competition, including, but not limited to, effects on

competition in properly defined, relevant research, development,

product, process, and service markets. For the purpose of

determining a properly defined, relevant market, worldwide capacity

shall be considered to the extent that it may be appropriate in the

circumstances.

-SOURCE-

(Pub. L. 98-462, Sec. 3, Oct. 11, 1984, 98 Stat. 1816; Pub. L.

103-42, Sec. 3(d), June 10, 1993, 107 Stat. 119.)

-MISC1-

AMENDMENTS

1993 - Pub. L. 103-42 substituted ''joint venture'' for ''joint

research and development venture'' and '', development, product,

process, and service'' for ''and development'' and inserted at end

''For the purpose of determining a properly defined, relevant

market, worldwide capacity shall be considered to the extent that

it may be appropriate in the circumstances.''

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15 USC Sec. 4303 01/06/03

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TITLE 15 - COMMERCE AND TRADE

CHAPTER 69 - COOPERATIVE RESEARCH

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Sec. 4303. Limitation on recovery

-STATUTE-

(a) Amount recoverable

Notwithstanding section 15 of this title and in lieu of the

relief specified in such section, any person who is entitled to

recovery on a claim under such section shall recover the actual

damages sustained by such person, interest calculated at the rate

specified in section 1961 of title 28 on such actual damages as

specified in subsection (d) of this section, and the cost of suit

attributable to such claim, including a reasonable attorney's fee

pursuant to section 4304 of this title if such claim -

(1) results from conduct that is within the scope of a

notification that has been filed under section 4305(a) of this

title for a joint venture, and

(2) is filed after such notification becomes effective pursuant

to section 4305(c) of this title.

(b) Recovery by States

Notwithstanding section 15c of this title, and in lieu of the

relief specified in such section, any State that is entitled to

monetary relief on a claim under such section shall recover the

total damage sustained as described in subsection (a)(1) of such

section, interest calculated at the rate specified in section 1961

of title 28 on such total damage as specified in subsection (d) of

this section, and the cost of suit attributable to such claim,

including a reasonable attorney's fee pursuant to section 15c of

this title if such claim -

(1) results from conduct that is within the scope of a

notification that has been filed under section 4305(a) of this

title for a joint venture, and

(2) is filed after such notification becomes effective pursuant

to section 4305(c) of this title.

(c) Conduct similar under State law

Notwithstanding any provision of any State law providing damages

for conduct similar to that forbidden by the antitrust laws, any

person who is entitled to recovery on a claim under such provision

shall not recover in excess of the actual damages sustained by such

person, interest calculated at the rate specified in section 1961

of title 28 on such actual damages as specified in subsection (d)

of this section, and the cost of suit attributable to such claim,

including a reasonable attorney's fee pursuant to section 4304 of

this title if such claim -

(1) results from conduct that is within the scope of a

notification that has been filed under section 4305(a) of this

title for a joint venture, and

(2) is filed after notification has become effective pursuant

to section 4305(c) of this title.

(d) Interest

Interest shall be awarded on the damages involved for the period

beginning on the earliest date for which injury can be established

and ending on the date of judgment, unless the court finds that the

award of all or part of such interest is unjust in the

circumstances.

(e) Applicability

This section shall be applicable only if the challenged conduct

of a person defending against a claim is not in violation of any

decree or order, entered or issued after October 11, 1984, in any

case or proceeding under the antitrust laws or any State law

similar to the antitrust laws challenging such conduct as part of a

joint venture.

-SOURCE-

(Pub. L. 98-462, Sec. 4, Oct. 11, 1984, 98 Stat. 1816; Pub. L.

103-42, Sec. 3(e)(1), June 10, 1993, 107 Stat. 119.)

-MISC1-

AMENDMENTS

1993 - Subsecs. (a) to (c). Pub. L. 103-42, Sec. 3(e)(1)(A), (B),

in introductory provisions inserted ''of this section'' after

''subsection (d)'' and in par. (1) substituted ''joint venture''

for ''joint research and development venture''.

Subsec. (e). Pub. L. 103-42, Sec. 3(e)(1)(A), (C), substituted

''October 11, 1984,'' for ''the effective date of this Act'' and

substituted ''joint venture'' for ''joint research and development

venture''.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 4305, 4306 of this title.

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15 USC Sec. 4304 01/06/03

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TITLE 15 - COMMERCE AND TRADE

CHAPTER 69 - COOPERATIVE RESEARCH

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Sec. 4304. Award of costs, including attorney's fees, to

substantially prevailing party; offset

-STATUTE-

(a) Notwithstanding sections 15 and 26 of this title, in any

claim under the antitrust laws, or any State law similar to the

antitrust laws, based on the conducting of a joint venture, the

court shall, at the conclusion of the action -

(1) award to a substantially prevailing claimant the cost of

suit attributable to such claim, including a reasonable

attorney's fee, or

(2) award to a substantially prevailing party defending against

any such claim the cost of suit attributable to such claim,

including a reasonable attorney's fee, if the claim, or the

claimant's conduct during the litigation of the claim, was

frivolous, unreasonable, without foundation, or in bad faith.

(b) The award made under subsection (a) of this section may be

offset in whole or in part by an award in favor of any other party

for any part of the cost of suit, including a reasonable attorney's

fee, attributable to conduct during the litigation by any

prevailing party that the court finds to be frivolous,

unreasonable, without foundation, or in bad faith.

-SOURCE-

(Pub. L. 98-462, Sec. 5, Oct. 11, 1984, 98 Stat. 1817; Pub. L.

103-42, Sec. 3(e)(2), June 10, 1993, 107 Stat. 119.)

-MISC1-

AMENDMENTS

1993 - Subsec. (a). Pub. L. 103-42 substituted ''joint venture''

for ''joint research and development venture'' in introductory

provisions.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 4303 of this title.

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15 USC Sec. 4305 01/06/03

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TITLE 15 - COMMERCE AND TRADE

CHAPTER 69 - COOPERATIVE RESEARCH

-HEAD-

Sec. 4305. Disclosure of joint venture

-STATUTE-

(a) Written notifications; filing

Any party to a joint venture, acting on such venture's behalf,

may, not later than 90 days after entering into a written agreement

to form such venture or not later than 90 days after October 11,

1984, whichever is later, file simultaneously with the Attorney

General and the Commission a written notification disclosing -

(1) the identities of the parties to such venture,

(2) the nature and objectives of such venture, and

(3) if a purpose of such venture is the production of a

product, process, or service, as referred to in section

4301(a)(6)(D) of this title, the identity and nationality of any

person who is a party to such venture, or who controls any party

to such venture whether separately or with one or more other

persons acting as a group for the purpose of controlling such

party.

Any party to such venture, acting on such venture's behalf, may

file additional disclosure notifications pursuant to this section

as are appropriate to extend the protections of section 4303 of

this title. In order to maintain the protections of section 4303

of this title, such venture shall, not later than 90 days after a

change in its membership, file simultaneously with the Attorney

General and the Commission a written notification disclosing such

change.

(b) Publication; Federal Register; notice

Except as provided in subsection (e) of this section, not later

than 30 days after receiving a notification filed under subsection

(a) of this section, the Attorney General or the Commission shall

publish in the Federal Register a notice with respect to such

venture that identifies the parties to such venture and that

describes in general terms the area of planned activity of such

venture. Prior to its publication, the contents of such notice

shall be made available to the parties to such venture.

(c) Effect of notice

If with respect to a notification filed under subsection (a) of

this section, notice is published in the Federal Register, then

such notification shall operate to convey the protections of

section 4303 of this title as of the earlier of -

(1) the date of publication of notice under subsection (b) of

this section, or

(2) if such notice is not so published within the time required

by subsection (b) of this section, after the expiration of the

30-day period beginning on the date the Attorney General or the

Commission receives the applicable information described in

subsection (a) of this section.

(d) Exemption; disclosure; information

Except with respect to the information published pursuant to

subsection (b) of this section -

(1) all information and documentary material submitted as part

of a notification filed pursuant to this section, and

(2) all other information obtained by the Attorney General or

the Commission in the course of any investigation, administrative

proceeding, or case, with respect to a potential violation of the

antitrust laws by the joint venture with respect to which such

notification was filed,

shall be exempt from disclosure under section 552 of title 5, and

shall not be made publicly available by any agency of the United

States to which such section applies except in a judicial or

administrative proceeding in which such information and material is

subject to any protective order.

(e) Withdrawal of notification

Any person who files a notification pursuant to this section may

withdraw such notification before notice of the joint venture

involved is published under subsection (b) of this section. Any

notification so withdrawn shall not be subject to subsection (b) of

this section and shall not confer the protections of section 4303

of this title on any person with respect to whom such notification

was filed.

(f) Judicial review; inapplicable with respect to notifications

Any action taken or not taken by the Attorney General or the

Commission with respect to notifications filed pursuant to this

section shall not be subject to judicial review.

(g) Admissibility into evidence; disclosure of conduct; publication

of notice; supporting or answering claims under antitrust laws

(1) Except as provided in paragraph (2), for the sole purpose of

establishing that a person is entitled to the protections of

section 4303 of this title, the fact of disclosure of conduct under

subsection (a) of this section and the fact of publication of a

notice under subsection (b) of this section shall be admissible

into evidence in any judicial or administrative proceeding.

(2) No action by the Attorney General or the Commission taken

pursuant to this section shall be admissible into evidence in any

such proceeding for the purpose of supporting or answering any

claim under the antitrust laws or under any State law similar to

the antitrust laws.

-SOURCE-

(Pub. L. 98-462, Sec. 6, Oct. 11, 1984, 98 Stat. 1818; Pub. L.

103-42, Sec. 3(f), June 10, 1993, 107 Stat. 119.)

-MISC1-

AMENDMENTS

1993 - Pub. L. 103-42, Sec. 3(f)(1), substituted ''joint

venture'' for ''joint research and development venture'' in section

catchline.

Subsec. (a). Pub. L. 103-42, Sec. 3(f)(2), (3), substituted

''joint venture'' for ''joint research and development venture''

and ''October 11, 1984'' for ''the date of the enactment of this

Act'' and added par. (3).

Subsecs. (d)(2), (e). Pub. L. 103-42, Sec. 3(f)(3), substituted

''joint venture'' for ''joint research and development venture''.

REPORTS ON JOINT VENTURES AND UNITED STATES COMPETITIVENESS

Section 4 of Pub. L. 103-42 provided that:

''(a) Purpose. - The purpose of the reports required by this

section is to inform Congress and the American people of the effect

of the National Cooperative Research and Production Act of 1993 (15

U.S.C. 4301 et seq.) on the competitiveness of the United States in

key technological areas of research, development, and production.

''(b) Annual Report by the Attorney General. - In the 30-day

period beginning at each 1-year interval in the 6-year period

beginning on the date of the enactment of this Act (June 10, 1993),

the Attorney General shall submit to the Committee on the Judiciary

of the House of Representatives and the Committee on the Judiciary

of the Senate -

''(1) a list of joint ventures for which notice was filed under

section 6(a) of the National Cooperative Research and Production

Act of 1993 (15 U.S.C. 4305(a)) during the 12-month period for

which such report is made, including -

''(A) the purpose of each joint venture;

''(B) the identity of each party described in section 6(a)(1)

of such Act; and

''(C) the identity and nationality of each person described

in section 6(a)(3) of such Act; and

''(2) a list of cases and proceedings, if any, brought during

such period under the antitrust laws by the Department of

Justice, and by the Federal Trade Commission, with respect to

joint ventures for which notice was filed under such section at

any time.

''(c) Triennial Report by the Attorney General. - In the 30-day

period beginning at each 3-year interval in the 6-year period

beginning on the date of the enactment of this Act (June 10, 1993),

the Attorney General, after consultation with such other agencies

as the Attorney General considers to be appropriate, shall submit

to the Committee on the Judiciary of the House of Representatives

and the Committee on the Judiciary of the Senate a description of

the technological areas most commonly pursued by joint ventures for

production for which notice was filed under section 6(a) of the

National Cooperative Research and Production Act of 1993 (15 U.S.C.

4305(a)) during the 3-year period for which such report is made,

and an analysis of the trends in the competitiveness of United

States industry in such areas.

''(d) Review of Antitrust Treatment Under Foreign Laws. - In the

three 30-day periods beginning 1 year, 3 years, and 6 years after

the date of the enactment of this Act (June 10, 1993), the Attorney

General, after consultation with such other agencies as the

Attorney General considers to be appropriate, shall submit to the

Committee on the Judiciary of the House of Representatives and the

Committee on the Judiciary of the Senate a report on the antitrust

treatment of United States businesses with respect to participation

in joint ventures for production, under the law of each foreign

nation any of whose domestic businesses disclosed its nationality

under section 6(a)(3) of the National Cooperative Research and

Production Act of 1993 (15 U.S.C. 4305(a)(3)) at any time.''

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 4303, 4306 of this title.

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15 USC Sec. 4306 01/06/03

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TITLE 15 - COMMERCE AND TRADE

CHAPTER 69 - COOPERATIVE RESEARCH

-HEAD-

Sec. 4306. Application of section 4303 protections to production of

products, processes, and services

-STATUTE-

Notwithstanding sections 4303 and 4305 of this title, the

protections of section 4303 of this title shall not apply with

respect to a joint venture's production of a product, process, or

service, as referred to in section 4301(a)(6)(D) of this title,

unless -

(1) the principal facilities for such production are located in

the United States or its territories, and

(2) each person who controls any party to such venture

(including such party itself) is a United States person, or a

foreign person from a country whose law accords antitrust

treatment no less favorable to United States persons than to such

country's domestic persons with respect to participation in joint

ventures for production.

-SOURCE-

(Pub. L. 98-462, Sec. 7, as added Pub. L. 103-42, Sec. 3(g), June

10, 1993, 107 Stat. 119.)

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