The Rise and Limits of Self-Regulation
New Horizons in Competition Law and Economics series
Chapter 4: The regulation of standardization agreements and adjoining collaborations
In 1984, Congress enacted the National Cooperative Research Act (the NCRA). The NCRA was the first antitrust statute to address joint research cooperation. The Act was amended in 1993 to also include joint production ventures and the word 'Production' was added to the name, i.e. National Cooperative Research and Production Act (the NCRPA). The Act clarified that courts had to measure joint R & D ventures against the standard of the rule of reason, regardless of whether the joint research was attacked under Federal or State antitrust laws. It introduced the stipulation that a plaintiff needed to prove anti-competitive restraints on an R & D market. Moreover, the Act stipulated, inter alia, that if the Attorney General or the FTC were notified about the joint venture, the parties were not obliged to pay treble damages should the joint venture eventually be regarded as anti-competitive in a court of law. Instead, they would be liable for the actual damages caused by the anti-competitive harm that was created by the collaboration. Finally, the NCRA included provisions obliging the losing party to pay the attorneys' fees of the prevailing party. These changes had rather profound effects. It was not only a clear theoretical break with the previous application of antitrust law to R & D collaborations under the Justice Department Antitrust Guide Concerning Research Joint Ventures from 1980 (the Guide). Private antitrust enforcement in the area of R & D collaboration was also severely limited.
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