Discussion: The Agency would analyze the proposed research and development joint venture using an analysis similar to that applied to other joint ventures.[1]
In this case, the Agency would assess whether the joint venture is likely to have anticompetitive effects. The Agency would seek to identify any other entities that would be actual or potential competitors with the joint venture in a relevant market. This would include those firms that have the capability and incentive to undertake research and development closely substitutable for the research and development proposed to be undertaken by the joint venture, taking into account such firms’ existing technologies and technologies under development, R&D facilities, and other relevant assets and business circumstances. Firms possessing such capabilities and incentives would be included in a research and development market even if they are not competitors in relevant markets for related goods, such as the plastics currently produced by the parties to the joint venture, although competitors in existing goods markets may often also compete in related research and development markets.
The Agency would consider the degree of concentration in the relevant research and development market and the market shares of the parties to the joint venture. If, in addition to the parties to the joint venture (taken collectively), there are at least four other independently controlled entities that possess comparable capabilities and incentives to undertake research and development of biodegradable plastics, or other products that would be close substitutes for such new plastics, the joint venture ordinarily would be unlikely to adversely affect competition in the relevant research and development market.[2] If there are fewer than four other independently controlled entities with similar capabilities and incentives, the Agency would consider whether the joint venture would give the parties to the joint venture an incentive and ability collectively to reduce investment in, or otherwise to retard the pace or scope of, research and development efforts. If the joint venture creates a significant risk of anticompetitive effects in the research and development market, the Agency would proceed to
- ↑ See generally U.S. Dep’t of Justice & Fed. Trade Comm’n, Antitrust Guidelines for Collaborations Among Competitors (2000), http://www.ftc.gov/os/2000/04/ftcdojguidelines.pdf; id. at 1, n.2 (The Intellectual Property Guidelines “outline the Agencies’ enforcement policy with respect to intellectual property licensing agreements among competitors, among other things.”). Also, this type of transaction may qualify for treatment under the National Cooperative Research Act of 1984 and the National Cooperative Production Amendments of 1993 (codified as amended at 15 U.S.C.A. §§ 4301-4305) (applying a reasonableness standard to the conduct of “any person in making or performing a contract to carry out a joint venture”).
- ↑ Cf. section 4.3.
13
