United States. Congress. House. Committee on the J.

National Cooperative Production Amendments of 1993 : hearing before the Subcommittee on Economic and Commercial Law of the Committee on the Judiciary, House of Representatives, One Hundred Third Congress, first session on H.R. 1313, to amend the National Cooperative Research Act of 1984 with respect online

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NATIONAL COOPERATIVE PRODUCTION
AMENDMEI




HR

BEFOlE THE

SUBCOMMITTEE ON
ECONOMIC AND (J)MM]

OF

COMMITTEE ON THE JUDICIAKY
HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRD CONGRESS

FIRST SESSION

ON

H.R. 1313

TO AMEND THE NATIONAL COOPERATIVE RESEARCH ACT OF 1984

WITH RESPECT TO JOINT VENTURES ENTERED INTO FOR THE

PURPOSE OF PRODUCING A PRODUCT, PROCESS, OR SERVICE



MARCH 18, 1993



Serial No. 4




/ nnftn

r\rF% ft ^.JOJ



BOSTON PUBLIC LIBRARY

. GOVERNMENT DOCUMENTS DEPARTMENT
Printed for the use of the Committee on the Judiciary '



68 - 410 cc



U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1993



For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office. Washington, DC 20402
ISBN 0-16-041258-7




£o /iin r\n i






n



NATIONAL COOPERATIVE PRODUCTION




HK

BEFOl

SUBC0M1
ECONOMIC AND

OF

COMMITTEE ON THE JUDICIAKY
HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRD CONGRESS

FIRST SESSION
ON

H.R. 1313

TO AMEND THE NATIONAL COOPERATIVE RESEARCH ACT OF 1984

WITH RESPECT TO JOINT VENTURES ENTERED INTO FOR THE

PURPOSE OF PRODUCING A PRODUCT, PROCESS, OR SERVICE



MARCH 18, 1993



Serial No. 4







BOSTON PUBLIC LIBRARY

GOVERNMENT DOCUMENTS DEPARTMENT
Printed for the use of the Committee on the Judiciary



68-410 CC



U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1993



For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office. Washington. DC 20402
ISBN 0-16-041258-7



COMMITTEE ON THE JUDICIARY



JACK BROOKS,



DON EDWARDS, California
JOHN CONYERS, JR., Michigan
ROMANO L. MAZZOLI, Kentucky
WILLIAM J. HUGHES, New Jersey
MIKE SYNAR, Oklahoma
PATRICIA SCHROEDER, Colorado
DAN GLICKMAN, Kansas
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JOHN BRYANT, Texas
GEORGE E. SANGMEISTER, Illinois
CRAIG A. WASHINGTON, Texas
JACK REED, Rhode Island
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
DAVID MANN, Ohio
MELVIN L. WATT, North Carolina
XAVIER BECERRA, California



Texas, Chairman
HAMILTON FISH, JR., New York
CARLOS J. MOORHEAD, California
HENRY J. HYDE, Illinois
F. JAMES SENSENBRENNER, JR.,

Wisconsin
BILL MCCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
STEVEN SCHIFF, New Mexico
JIM RAMSTAD, Minnesota
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia



JONATHAN R. YAROWSKY, General Counsel

ROBERT H. BRINK, Deputy General Counsel

ALAN F. COFFEY, JR., Minority Chief Counsel



Subcommittee on Economic and Commercial Law



JACK BROOKS,

JOHN CONYERS, JR., Michigan
MIKE SYNAR, Oklahoma
PATRICIA SCHROEDER, Colorado
DAN GLICKMAN, Kansas
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
ROBERT C. SCOTT, Virginia
DAVID MANN, Ohio
MELVIN L. WATT, North Carolina



Texas, Chairman

HAMILTON FISH, JR., New York
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
CARLOS J. MOORHEAD, California



Cynthia W. Meadow, Counsel

GEORGE P. Slover, Assistant Counsel

PERRY ApelBAUM, Assistant Counsel

CARRIE BEDWELL, Assistant Counsel

CHARLES E. KERN II, Minority Counsel



(ID



CONTENTS



HEARING DATE



Page

March 18, 1993 1

TEXT OF BILL

H.R. 1313 • 3

OPENING STATEMENT

Brooks, Hon. Jack, a Representative in Congress from the State of Texas,
and chairman, Subcommittee on Economic and Commercial Law 1

WITNESSES

Choate, Pat, director, the Manufacturing Policy Project 39

Coston, William D., partner, Venable, Baetjer, Howard & Civiletti, on behalf

of the Compaq Computer Corp 50

Kaplan, Arthur M., attorney, Fine, Kaplan & Black 43

Pickitt, John L., president, Computer & Business Equipment Manufacturers

Association, accompanied by Simon Lazarus, general counsel, CBEMA, and

attorney, Powell, Goldstein, Frazer & Murphy 34

Rill, James F., Collier, Shannon, Rill & Scott, and former Assistant Attorney

General, Antitrust Division, Department of Justice 23

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Choate, Pat, director, the Manufacturing Policy Project: Prepared

statement 40

Coston, William D., partner, Venable, Baetjer, Howard & Civiletti, on behalf

of the Compaq Computer Corp.: Prepared statement 52

Fish, Hon. Hamilton, Jr., a Representative in Congress from the State of

New York: Prepared statement 15

Kaplan, Arthur M., attorney, Fine, Kaplan & Black: Prepared statement 45

Moorhead, Hon. Carlos J., a Representative in Congress from the State of

California: Prepared statement 19

Pickitt, John L., president, Computer & Business Equipment Manufacturers

Association:

Hewlett-Packard chart: HP product orders by year 70

Prepared statement 36

Rill, James F., Collier, Shannon, Rill & Scott, and former Assistant Attorney

General, Antitrust Division, Department of Justice: Prepared statement 26

APPENDLX

Material Submitted for the Hearing Record

Umphrey, Robert H., chairman, Investment Committee, Organization for

International Investment: March 17, 1993, letter to Chairman Brooks 73



(III)



NATIONAL COOPERATIVE PRODUCTION
AMENDMENTS OF 1993



THURSDAY, MARCH 18, 1993

House of Representatives,
Subcommittee on Economic and Commercial Law,

Committee on the Judiciary,

Washington, DC.
The subcommittee met, pursuant to notice, at 10:20 a.m., in room
2141, Rayburn House Office Building, Hon. Jack Brooks (chairman
of the subcommittee) presiding.

Present: Representatives Jack Brooks, Robert C. Scott, David
Mann, Melvin L. Watt, Hamilton Fish, Jr., Bob Inglis, Bob
Goodlatte, and Carlos J. Moorhead.

Subcommittee staff present: Cynthia W. Meadow, counsel;
George P. Slover, assistant counsel; Perry Apelbaum, assistant
counsel; Carrie Bedwell, assistant counsel; Catherine S. Cash, re-
search assistant; Deloris L. Cole, office manager; Suzanne Young,
secretary; full committee staff present: Jonathan R. Yarowsky, gen-
eral counsel; Daniel M. Freeman, counsel; Alan F. Coffey, minority
chief counsel; and Charles E. Kern II, minority counsel.

OPENING STATEMENT OF CHAIRMAN BROOKS

Mr. Brooks. The subcommittee will come to order. The hearing
today is on the bill, H.R. 1313, the National Cooperative Production
Amendments of 1993, which Congressmen Fish, Edwards, Boucher,
Moorhead, and I introduced March 11. A companion bill, S. 574,
was introduced in the Senate the same day by Senators Biden,
Leahy, and Thurmond.

After two Congresses of contemplating possible legislation in this
area, I think it is high time we act on this bill if we are going to
do our part in bolstering American competitiveness. Given our
prior work in this area, I believe H.R. 1313 is a balanced and re-
sponsible policy response to the erroneous — yet genuinely held —
perception by some that the antitrust laws somehow contribute to
this country's poor competitive position in the changing world mar-
ketplace.

That assumption is not correct, but let us be candid:
Misperceptions about antitrust can affect commercial behavior and
retard America's reemergence as a world class player in a variety
of high tech and manufacturing sectors.

H.R. 1313 amends the National Cooperative Research Act of
1984, which was passed to encourage similar joint ventures for
R&D. Over 300 ioint ventures have been reported to the antitrust
agencies under that law, which by all accounts seem to be working

(1)



well. Now H.R. 1313 extends the R&D Act's coverage and protec-
tions to production joint ventures. The bill thus codifies the appli-
cable legal standard and enforcement policy that has been applied
to these types of collaborative ventures for the past three decades.
Perhaps most important, H.R. 1313 stands for the proposition
that there is no inherent contradiction between our competitive
statutes and the ability of U.S. firms to take those steps necessary
to regain technological leadership. While passing this legislation
will not by itself revitalize America's competitive standing in high
technology and manufacturing, it is a significant step that we can

take ricrht now.

In addition to the bipartisan congressional support, President
Bill Clinton has already endorsed the legislation as "just the kind
of forward-thinking initiative we need to drive our economy toward
a decade of creative change." This bill does just that without damp-
ening the antitrust laws' ability to prevent improper collusion.

I look forward to hearing the views of our distinguished panel of
witnesses. Gentlemen, relax there and I will introduce you after we
hear statements from other members.

[The bill, H.R. 1313, follows:]



103d CONGRESS
1st Session



H.R.1313



To amend the National Cooperative Research Act of 1984 with respect to
joint ventures entered into for the purpose of producing a product,
process, or service.



IN THE HOUSE OF REPRESENTATIVES

March 11, 1993

Mr. Brooks (for himself, Mr. FlSH, Mr. Edwards of California, and Mr.
BOUCHER) introduced the following bill; which was referred to the Com-
mittee on the Judiciary



A BILL

To amend the National Cooperative Research Act of 1984
with respect to joint ventures entered into for the pur-
pose of producing a product, process, or service.

1 Be it enacted by the Senate and House of Representa-

2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the "National Cooperative

5 Production Amendments of 1993".

6 SEC. 2. FINDINGS AND PURPOSE.

7 (a) Findings. — The Congress finds that —

8 (1) technological innovation and its profitable

9 commercialization are critical components of the



2

1 ability of the United States to raise the living stand-

2 ards of Americans and to compete in world markets;

3 (2) cooperative arrangements among

4 nonaffiliated businesses in the private sector are

5 often essential for successful technological innova-

6 tion; and

7 (3) the antitrust laws may have been mistak-

8 enly perceived to inhibit procompetitive cooperative

9 innovation arrangements, and so clarification serves

10 a useful purpose in helping to promote such ar-

1 1 rangements.

12 (b) Purpose. — It is the purpose of this Act to pro-

13 mote innovation, facilitate trade, and strengthen the com-

14 petitiveness of the United States in world markets by

15 clarifying the applicability of the rule of reason standard

16 and establishing a procedure under which businesses may

17 notify the Department of Justice and Federal Trade Com-

18 mission of their cooperative ventures and thereby qualify

19 for a single-damage limitation on civil antitrust liability.

20 SEC. 3. AMENDMENTS.

21 (a) Short Title. — Section 1 of the National Coop-

22 erative Research Act of 1984 (15 U.S.C. 4301 note) is

23 amended by striking "National Cooperative Research Act

24 of 1984" and inserting "National Cooperative Research

25 and Production Act of 1993".

• HR 1313 IH



1 (b) Definition. — Section 2(a)(6) of the National

2 Cooperative Research Act of 1984 (15 U.S.C. 4301(a)(6))

3 is amended —

4 (1) in the matter preceding subparagraph (A)

5 by striking "research and development";

6 (2) in subparagraph (D) by inserting "or pro-

7 duction" after "research";

8 (3) in subparagraph (E) by striking "and (D)"

9 and inserting "(D), (E), and (F)";

10 (4) by redesignating subparagraphs (D) and

11 (E) as subparagraphs (F) and (G), respectively;

12 (5) by inserting after subparagraph (C) the fol-

13 lowing:

14 "(D) the production of a product, process,

15 or service,

16 "(E) the testing in connection with the

17 production of a product, process, or service by

18 such venture,"; and

19 (6) by striking "research" the last place it ap-

20 pears and inserting "such venture".

21 (c) Exclusions. — Section 2(b) of the National Co-

22 operative Research Act of 1984 (15 U.S.C. 4301(b)) is

23 amended —

24 (1) in the matter preceding paragraph (1) by

25 striking "research and development";

•HR 1313 IH



4

1 (2) in paragraph (1) by striking "that is not

2 reasonably required to conduct the research and de-

3 velopment that is" and inserting "if such informa-

4 tion is not reasonably required to carry out";

5 (3) by amending paragraph (2) to read as fol-

6 lows:

7 "(2) entering into any agreement or engaging

8 in any other conduct restricting, requiring, or other-

9 wise involving the marketing, distribution, or provi-

10 sion by any person who is a party to such venture

11 of any product, process, or service, other than —

12 "(A) the distribution among the parties to

13 such venture, in accordance with such venture,

14 of a product, process, or service produced by

15 such venture,

16 "(B) the marketing of proprietary informa-

17 tion, such as patents and trade secrets, devel-

18 oped through such venture formed under a

19 written agreement entered into before the date

20 of the enactment of the National Cooperative

21 Production Amendments of 1993, or

22 "(C) the licensing, conveying, or transfer-

23 ring of intellectual property, such as patents

24 and trade secrets, developed through such ven-

25 ture formed under a written agreement entered

•HR 1313 IH



5

1 into on or after the date of the enactment of

2 the National Cooperative Production Amend-

3 ments of 1993,";

4 (4) in paragraph (3) —

5 (A) in subparagraph (A) by striking "or

6 developments not developed through" and in-
serting ", developments, products, processes, or

8 services not developed through, or produced

9 by,";

10 (B) in subparagraph (B) by striking "such

11 party" and inserting "any person who is a

12 party to such venture"; and

13 (C) by striking the period at the end and

14 inserting a comma, and

15 (5) by adding at the end the following:

16 "(4) entering into any agreement or engaging

17 in any other conduct allocating a market with a

18 competitor,

19 "(5) exchanging information among competitors

20 relating to production (other than production by

21 such venture) of a product, process, or service if

22 such information is not reasonably required to carry

23 out the purpose of such venture,

24 "(6) entering into any agreement or engaging

25 in any other conduct restricting, requiring, or other-

•HR 1313 IH



8



6

1 wise involving the production (other than the pro-

2 duction by such venture) of a product, process, or

3 service,

4 "(7) using existing facilities in connection with

5 the production of a product, process, or service by

6 such venture unless such use is for the production

7 of a new product or technology, and

8 "(8) except as provided in paragraphs (2), (3),

9 and (6), entering into any agreement or engaging in

10 any other conduct to restrict or require participation

11 by any person who is a party to such venture, in any

12 unilateral or joint activity that is not reasonably re-

13 quired to carry out the purpose of such venture.".

14 (d) Rule of Reason Standard. — Section 3 of the

15 National Cooperative Research Act of 1984 (15 U.S.C.

16 4302) is amended—

17 (1) by striking "research and development" the

18 first place it appears;

19 (2) by striking "and development" the last

20 place it appears and inserting ", development, prod-

21 uct, process, and service"; and

22 (3) by adding at the end the following:

23 "For the purpose of determining a properly defined, rel-

24 evant market, worldwide capacity shall be considered to



•HR 1313 IH



9



7

1 the extent that it may be appropriate in the cir-

2 cumstances.".

3 (e) Technical and Conforming Amendments. —

4 The National Cooperative Research Act of 1984 (15

5 U.S.C. 4301 et seq.) is amended —

6 (1) in section 4 —

7 (A) in subsections (a)(1), (b)(1), (c)(1),

8 and (e) by striking "research and development"

9 each place it appears; and

10 (B) in subsection (b) by inserting "of this

11 section" after "subsection (d)"; and

12 (2) in section 5(a) in the matter preceding

13 paragraph (1) by striking "research and develop-

14 ment".

15 (f) Disclosure. — Section 6 of the National Cooper-

16 ative Research Act of 1984 (15 U.S.C. 4305) is

17 amended —

18 (1) in the heading by striking "research and

19 DEVELOPMENT";

20 (2) in subsection (a) —

21 (A) in paragraph (1) by striking "and" at

22 the end,

23 (B) in paragraph (2) by striking the period

24 at the end and inserting ", and", and



•HR 1313 IH



10



8

1 (C) by inserting the following after para-

2 graph (2):

3 "(3) if a purpose of such venture is the produc-

4 tion of a product, process, or service, as referred to

5 in section 2(a)(6)(D), the identity and nationality of

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

7 controls any party to such venture whether sepa-

8 rately or with one or more other persons acting as

9 a group for the purpose of controlling such party.";

10 and

11 (3) in subsections (a), (d)(2), and (e) by strik-

12 ing "research and development" each place it ap-

13 pears.

14 (g) Limitation. — The National Cooperative Re-

15 search Act of 1984 (15 U.S.C. 4301 et seq.) is amended

16 by adding at the end the following:

17 "APPLICATION OF SECTION 4 PROTECTIONS TO

18 PRODUCTION OF PRODUCTS, PROCESSES, AND SERVICES

19 "Sec. 7. Notwithstanding sections 4 and 6, the pro-

20 tections of section 4 shall not apply with respect to a joint

21 venture's production of a product, process, or service, as

22 referred to in section 2(a)(6)(D), unless —

23 "(1) the principal facilities for such production

24 are located in the United States or its territories,

25 and

• HR ISIS m



11



9

1 "(2) each person who controls any party to

2 such venture (including such party itself) is a United

3 States person, or a foreign person from a country

4 whose law accords antitrust treatment no less favor-

5 able to United States persons than to such country's

6 domestic persons with respect to participation in

7 joint ventures for production.".

8 SEC. 4. REPORTS ON JOINT VENTURES AND UNITED

9 STATES COMPETITIVENESS.

10 (a) Purpose. — The purpose of the reports required

11 by this section is to inform Congress and the American

12 people of the effect of the National Cooperative Research

13 and Production Act of 1993 on the competitiveness of the

14 United States in key technological areas of research, devel-

15 opment, and production.

16 (b) Annual Report by the Attorney Gen-

17 ERAL. — In the 30-day period beginning at each 1-year in-

18 terval after the date of the enactment of this Act, the At-

19 torney General shall submit to the Committee on the Judi-

20 ciary of the House of Representatives and the Committee

21 on the Judiciary of the Senate —

22 (1) a list of joint ventures for which notice was

23 filed under section 6(a) of the National Cooperative

24 Research and Production Act of 1993 during the 12-

25 month period for which such report is made, includ-

•HR 1313 m



12



10

1 ing the purpose of each joint venture and the iden-

2 tity and nationality of each party to such joint ven-

3 ture as described in such section; and

4 (2) a list of cases and proceedings, if any,

5 brought during such period under the antitrust laws

6 by the Department of Justice, and by the Federal

7 Trade Commission, with respect to joint ventures for

8 which notice was filed under such section at any

9 time.

10 (c) Triennial Report by the Attorney Gen-

1 1 ERAL. — In the 30-day period beginning at each 3-year in-

12 terval after the date of the enactment of this Act, the At-

13 torney General, after consultation with such other agen-

14 cies as may be appropriate, shall submit to the Committee

15 on the Judiciary of the House of Representatives and the

16 Committee on the Judiciary of the Senate —

17 (1) a description of the technological areas of

18 research, development, and production most com-

19 monly pursued by joint ventures for which notice

20 was filed under section 6(a) of the National Cooper-

21 ative Research and Production Act of 1993 during

22 the 3-year period for which such report is made, and

23 an analysis of the trends in the competitiveness of

24 United States industry in"such areas; and



•HR 1313 IH



13



11

1 (2) an update of the report submitted by the

2 Attorney General under subsection (d) to reflect

3 changes in foreign law's antitrust treatment of joint

4 ventures.

5 (d) Review of Antitrust Treatment Under

6 Foreign Laws. — Not later than 1 year after the date of

7 enactment of this Act, the Attorney General, after con-

8 sultation with such other agencies as may be appropriate,

9 shall submit to the Committee on the Judiciary of the

10 House of Representatives and the Committee on the Judi-

11 ciary of the Senate a report on the antitrust treatment

12 of United States businesses that are parties to joint ven-

13 tures under the law of each foreign nation whose domestic

14 businesses filed notice under section 6(a) of the National

15 Cooperative Research and Production Act of 1993 at any

16 time.

o



•HR 1313 IH



68-410 - 93



14

Mr. Brooks. Mr. Fish, the gentleman from New York.

Mr. Fish. Thank you, Mr. Chairman.

It is my hope and expectation that with this hearing, we are in
sight of the end of a long legislative road.

Last week, I was pleased to join as a cosponsor of the "National
Cooperative Production Amendments of 1993," (H.R. 1313). This
legislation aims at an important objective — the further enhance-
ment of America's competitive strength in the global market. By
spreading the risks, production joint ventures will lower the burden
of manufacturing costs for each participant. Futhermore, important
efficiencies can be achieved by pooling the human and capital con-
tributions that competing companies can make to both the engi-
neering and production oi a product, process, or service.

H.R. 1313 amends the National Cooperative Research Act of
1984 to extend to joint production the protections already provided
therein to research and development joint ventures. These protec-
tions relate to the application of the rule of reason, attorneys' fees,
and recovery on an antitrust claim. The conduct of any person in
making or performing a production joint venture contract will not
be deemed illegal per se, but will be judged under the rule of rea-
son. This requires initial consideration of the procompetitive bene-
fits that the venture might create and the determination of wheth-
er the venture will on balance harm competition in the relevant
market. In addition, litigation costs, including reasonable attorneys'
fees, would be awarded to the substantially prevailing party. Fi-
nally, parties properly notifying the Antitrust Division and the
FTC oi the "nature and objectives" of the joint venture and the
names and nationalities of the participants would be liable for ac-
tual, rather than treble damages for antitrust violations arising
from the joint activities disclosed, plus interest and attorneys' fees.

Mr. Chairman, as you know, I was involved in 1984 in the legis-
lative formulation of the National Cooperative Research Act. That
research and development statute has proved to be strikingly suc-
cessful. By removing the disincentives in our antitrust laws to the
formation of research and development joint ventures, it has en-
abled hundreds of companies to more successfully confront world
competition.

This is what we hope will happen here again and so I am pleased
to note that the bill before us represents a significant improvement
over those measures previously introduced in this committee. It
avoids the problem of excessive protectionism by codifying impor-
tant incentives for American companies to cooperate in production
joint ventures. New jobs will be created both in the high tech com-
panies and in our traditional basic industries.

Now that we have reached bipartisan agreement with the Senate
on the general form that this legislation should take, I look forward
to its enactment into law in snort order and I think we will be
making a significant achievement when we do enact this legisla-
tion.

Mr. Brooks. Thank you very much, Mr. Fish.

[The prepared statement of Mr. Fish follows:]



15



OPENING STATEMENT BY THE

HONORABLE HAMILTON FISH, JR.


1 3 4 5 6 7

Online LibraryUnited States. Congress. House. Committee on the JNational Cooperative Production Amendments of 1993 : hearing before the Subcommittee on Economic and Commercial Law of the Committee on the Judiciary, House of Representatives, One Hundred Third Congress, first session on H.R. 1313, to amend the National Cooperative Research Act of 1984 with respect → online text (page 1 of 7)