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S. 1841 (98th): National Cooperative Research Act of 1984

The text of the bill below is as of Oct 11, 1984 (Passed Congress).


PUBLIC LAW 98-462—OCT. 11, 19H4                                 98 STAT. 1815

P u b l i c L a w 98-462
9 8 t h Congress
                                   A n Act
To promote research and development, encourage innovation, stimulate trade, and       Q^.^. ]^J j^gg^
  make necessary and appropriate modifications in the operation of the antitrust               '
  laws. ' • ' - - -                                                                     [S. 1841]

 Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled.                                    National
                                                                                   Cooperative
                                                                                   Research Act of
                                 SHORT TITLE                                       1984.
 SECTION 1. This Act may be cited as the "National Cooperative
Research Act of 1984".                                         15 use 4301
                                 DEFINITIONS                                       note.

  SEC. 2. (a) For purposes of this Act:                                 15 use 430i.
      (1) The term "antitrust laws" has the meaning given it in
    subsection (a) of the first section of the Clayton Act (15 U.S.C.
    12), except that such term includes section 5 of the Federal
    Trade Commission Act (15 U.S.C. 45) to the extent that such
    section 5 applies to unfair methods of competition.
      (2) The term "Attorney (Jeneral" 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 the first section of the Clayton Act (15 U.S.C. 12(a)).
       (5) The term "State" has the meaning given it in section 4G(2)
    of the Clayton Act (15 U.S.C. 15g(2)).
       (6) The term "joint research and development 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, protot3rpes,
          equipment, materials, and processes,
            (D) the collection, exchange, and anedysis of research
          information, or
            (E) any combination of the purposes specified in subpara-
          graphs (A), (B), (C), and (D),
    and may include the establishment £md operation of facilities
    for the conducting of research, 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

98 STAT. 1816 PUBLIC LAW 98-462—OCT. 11, 1984 • results of such venture, but does not include any activity speci- fied in subsection (b). (b) The term "joint research and development 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 that is not reasonably required to conduct the research and development that is the purpose of such venture, (2) entering into any agreement or engaging in any other conduct restricting, requiring, or otherwise involving the pro- duction 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 (3) entering into any agreement or engaging in any other conduct— (A) to restrict or require the sale, licensing, or sharing of inventions or developments not developed through such venture, or (B) to restrict or require participation by such party 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. RULE OF REASON STANDARD 15 use 4302. SEC. 3. 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 research and development venture shall not be deemed illegal per se; such con- duct 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 and development markets. LIMITATION ON RECOVERY Claims. SEC. 4. (a) Notwithstanding section 4 of the Claj^on Act (15 U.S.C. 15 use 4303. 15) 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, United States Code, on such actual damages as specified in subsection (d), and the cost of suit attributable to such claim, including a reasonable attorney's fee pursuant to section 5 of this Act if such claim— (1) results from conduct that is within the scope of a notifica- tion that has been filed under section 6(a) of this Act for a joint research and development venture, and (2) is filed after such notification becomes effective pursuant to section 6(c) of this Act. (b) Notwithstanding section 40 of the Clayton Act (15 U.S.C. 15c), 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
PUBLIC LAW 98-462—OCT. 11, 1984 98 STAT. 1817 1961 of title 28, United States Code, on such total damage as specified in subsection (d), and the cost of suit attributable to such claim, including a reasonable attorney's fee pursuant to section 4C of the Clayton Act if such claim— 15 USC I5c. (1) results from conduct that is within the scope of a notifica- tion that has been filed under section 6(a) of this Act for a joint research and development venture, and (2) is filed after such notification becomes effective pursuant to section 6(c) of this Act. (c) 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, United States Code, on such actual damages as specified in subsection (d), and the cost of suit attributable to such claim, including a reasonable attorney's fee pursuant to section 5 of this Act if such claim— (1) results from conduct that is within the scope of a notiflca- ^ tion that has been filed under section 6(a) of this Act for a joint research and development venture, and (2) is filed after notification has become effective pursuant to section 6(c) of this Act. (d) 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) 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 the effective date of this Act, 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 research and development venture. ATTORNEY'S FEES SEC. 5. (a) Notwithstanding sections 4 and 16 of the Clayton Act, in 15 use 4304. any claim under the antitrust laws, or any State law similar to the ^^ use 15, 26. antitrust laws, based on the conducting of a joint research and development 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 attor- ney'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 frivo- lous, unreasonable, without foundation, or in bad faith. (b) The award made under subsection (a) 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.
98 STAT. 1818 PUBLIC LAW 98-462—OCT. 11, 1984 DISCLOSURE OF JOINT RESEARCH AND DEVELOPMENT VENTURE 15 u s e 4305. SEC. 6. (a) Any party to a joint research and development 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 the date of the enactment of this Act, 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, and (2) the nature and objectives of such venture. 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 4. In order to maintain the protections of section 4, 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 notifica- tion disclosing such change. Federal (b) Except as provided in subsection (e), not later than 30 days Register, after receiving a notification filed under subsection (a), the Attorney publication. 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 thp area of planned activity of such venture. Prior to its publication, the con- tents of such notice shall be made available to the parties to such venture. (c) If with respect to a notification filed under subsection (a), notice is published in the Federal Register, then such notification shall operate to convey the protections of section 4 as of the earlier of— (1) the date of publication of notice under subsection (b), or (2) if such notice is not so published within the time required by subsection (b), 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). Public informa- (d) Except with respect to the information published pursuant to tion. subsection (b)— Confidentiality. (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, administra- tive proceeding, or case, with respect to a potential violation of the antitrust laws by the joint research and development ven- ture with respect to which such notification was filed, shall be exempt from disclosure under section 552 of title 5, United States Code, 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) Any person who files a notification pursuant to this section may withdraw such notification before notice of the joint research and development venture involved is published under subsection (b). Any notification so withdrawn shall not be subject to subsection (b) and shall not confer the protections of section 4 on any person with respect to whom such notification was filed. (f) 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.
PUBLIC LAW 98-462—OCT. 11, 1984 98 STAT. 1819 (gXD Except as provided in paragraph (2), for the sole purpose of establishing that a person is entitled to the protections of section 4, the fact of disclosure of conduct under section 6(a) and the fact of publication of a notice under section 60t)) 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. Approved October 11, 1984. LEGISLATIVE HISTORY—S. 1841 (H.R. 5041): HOUSE REPORTS: No. 98-1044 (Comm. of Conference) and No. 98-656 accompanying H.R. 5041 (Comm. on t h e Judiciary). SENATE REPORT No. 98-427 (Comm. on the Judiciary). CONGRESSIONAL RECORD, Vol. 130 (1984): May 1, H.R. 5041 considered and passed House. July 31, considered and passed Senate. Aug. 9, considered and passed House, amended, in lieu of H.R. 5041. Sept. 26, Senate agreed to conference report. Oct. 1, House agreed to conference report.