The National Cooperative Research and Production Act of 1993 ("NCRPA" or "Act"), 15 U.S.C. §§ 4301-06, is designed to promote innovation, facilitate trade, and strengthen the competitiveness of the United States in world markets by:
While the application of the rule of reason and attorneys' fee provisions to joint venture and SDO activity is automatic under the Act, the limitation of possible antitrust damage exposure to actual damages occurs only after a venture or SDO files a notification with the Antitrust Division of the Department of Justice (or the "Division") and the Federal Trade Commission (or "FTC") and the Division subsequently publishes a notice concerning the joint venture or SDO in the Federal Register. Through the process of providing notifications under the NCRPA, joint ventures and SDOs inform the antitrust enforcement agencies and, through the publication (by the Division) of notices in the Federal Register, the public of their membership and activities, and any changes thereto. What entities are eligible to file a notification? Two types of entities are entitled to file notifications under the NCRPA: Joint ventures that are engaged in the following activities may file
notifications under the Act:
However, a joint venture for production is not eligible to file a notification unless both of the following conditions are met:
Standards Development Organizations Standards development organizations may file notifications under the Act. For purposes of the Act, a SDO is a domestic or international organization that plans, develops, establishes or coordinates voluntary consensus standards using procedures that incorporate the attributes of openness, balance of interests, due process, an appeals process, and consensus in a manner consistent with the Office of Management and Budget Circular Number A-119, as revised February 10, 1998. A standards development organization does not include the parties participating in the standards development organization. What types of notifications are there? There are two types of NCRPA notifications:
The information that must be included in a notification to the Division and the FTC differs somewhat in original and supplemental notifications. There are also differences in the information that must be provided by joint ventures for research and development, joint ventures for production, and standards development organizations. All information supplied to the enforcement agencies as part of an NCRPA notification is protected from disclosure; only the information published by the Division in the Federal Register becomes public. What are the requirements for an original notification? There are three components for every notification under the NCRPA. All three components apply to the three types of entities that may file: R&D joint ventures, production joint ventures and SDOs. Three copies of each of these items must be included in the filing one copy must be sent to the FTC and two copies must be sent to the Division. Original notifications by joint ventures must be submitted to the Division
and FTC not later than 90 days after entering into a written agreement
to form a joint venture for R&D or for production, and for SDOs not
later than 90 days after commencing a standards development activity engaged
in for the purpose of developing or promulgating voluntary consensus standards.
The three components of an original NCRPA notification are:
Following the receipt of a proper notification, the Division will publish a notice in the Federal Register that identifies the parties to, and the activities of, the joint venture or SDO. Notifications may be withdrawn at any time before publication of a notice in the Federal Register; however, a joint venture or SDO does not receive the liability-limiting protections of the Act if its notification is withdrawn. You may view published notices on the Federal Register website. What are the requirements for a supplemental notification? In order for joint ventures and SDOs that have filed original notifications to continue receiving the detrebling protections of the Act, such ventures and organizations must file supplemental notifications when changes occur after the initial filing.
The same process applies to making a supplemental notification as is required when making the original notification. Two copies of the notification are sent to the Division and one copy to the FTC. The notification should provide information, and in the case of an SDO documentation, concerning the changes for which the supplemental notification is being made, a draft Federal Register notice reflecting those changes, and the name and contact information of the person or persons authorized to approve the publication of the Federal Register notice. It is not necessary to provide or restate information provided in an earlier notification. For example, if a supplemental notification is being filed because of a change of membership in a joint venture, it is not necessary to enumerate all current members in the notification, identifying the parties who have been added and those who have been dropped will suffice. Supplemental notifications must be filed within 90 days of the occurrence of the change requiring the notification. Where are notifications filed? Original and supplemental NCRPA notifications should be delivered to the following locations:
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