ASTM Legal Module September 2014 Officers Training Workshop Tom O Brien ASTM General Counsel
Discussion Topics Antitrust IP Issues Use of ASTM Standards
Antitrust Issues ASTM Reg. 19 Issues ASTM has faced Guidance
Major Antitrust Laws Sherman Antitrust Act (1890) every contract, combination, or conspiracy to restrain trade (or monopolize) is illegal Clayton Antitrust Act (1914) prohibits certain restrictive business practices that substantially lessen competition Federal Trade Commission Act (1914) prohibits unfair or deceptive methods of competition
Antitrust Policy Antitrust policy seeks to limit market domination (monopoly power) curb practices that restrict competition Practices subject to antitrust action collusive agreements among firms exclusive dealings predatory behavior by firms other anticompetitive practices used by firms with market power
Common sense guidelines Do not discuss prices with competitors (price-fixing). Do not agree with a competitor to stay out of a certain market. Do not join forces with some competitors to disadvantage others Do not price fix with competitors Do not tie the sale of one product to another.
ASTM Experience 4 lawsuits ASTM as a Party E50, G02 D02 E28 F18 5 lawsuits between members or involving members F17 D02 C13 C09 D04
It s the Process! Voting Interests Balance Inclusion, not exclusion Handling of Negative Votes Patents Running Efficient Meeting Contact staff/me
Patents Reg. 15: Preference for Generic Standard w/o Patents Committee determines if Patent necessary for inclusion Final standard must include FN asking for alternatives Committee must promptly consider alternatives www.astm.org // 9
Intellectual Property: Policy and Procedures Who can Copyright? Author Employer (Work-for-Hire) Assignee What are the rights protected? Reproduction Derivative Works Distribution/Sale
Intellectual Property: Policy and Procedures How does ASTM acquire ownership/copyright? By assignment Membership Application You agree, by your participation in ASTM to have transferred and assigned any and all interest you possess or may possess, including copyright, in the development of ASTM standards or ASTM IP to ASTM.
Intellectual Property Policy V.D. By participating in any ASTM International technical committee and/or participating in the creation, development and/or adoption of ASTM IP, participants and committee members acknowledge that the copyright to such IP resides in ASTM. Each ASTM member... transfer[s] any and all ownership interest, including copyright... to ASTM. If requested, you agree to execute any and all additional documents necessary and appropriate to transfer and effectuate ownership of such rights
When does a standard/draft become ASTM IP? Right From The Beginning
Working Document Caveats Use: Ballot Items New Standards This draft document is not an ASTM International standard; it is under consideration within an ASTM International technical committee but has not received all approvals required to become an ASTM International standard. It shall not be reproduced or circulated or quoted, in whole or part, outside of ASTM International Committee activities except with the approval of the Chairman of the Committee having jurisdiction and the President of the Society. Copyright ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428. All rights reserved. Use: Ballot Items Revisions This standard is under consideration for revision within an ASTM International technical committee. The revisions proposed have not received all approvals required to become an ASTM International standard. It shall not be reproduced or circulated or quoted, in whole or part, outside of ASTM International Committee activities except with the approval of the Chairman of the Committee having jurisdiction and the President of the Society. Copyright ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428. All rights reserved.
Trademarks 1. ASTM Logo Policy: Cannot be used to signify or imply approval or certification by ASTM of Business, Product or Services 2. F & S F.4.2 Trademarks www.astm.org // 18
Research Reports On the Research Report: This ASTM International Research Report contains proprietary information and/or data generated from conducting an ASTM Test Method. The purpose of this information is solely to validate the ASTM Test Method. The data and analyses may not be reproduced, circulated or quoted, in whole or part, without written permission from ASTM International. Copyright ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428. All rights reserved.
Joint Standards Development Means Sharing IP If ASTM IP, must follow ASTM Practice
If Another SDO s IP need to follow: ASTM Procedure: ASTM IP Policy: Staff should obtain written permission from other organization Other Organization s Procedure(s) if any
Legal System s Use of Standards EVIDENCE!
Contract: Compliance with Terms Negligence: Proof/Evidence of Standard of Care Product Liability: Proof/Evidence of a Defect
Standard of Care: that degree of care which a reasonably prudent person should exercise under same or similar circumstances.
Product Defect: Existence of a defective condition that makes a product unreasonably dangerous to the user or consumer
Contract Intent of Parties Standard Referenced Non-Conformity is a Breach
Negligence Evidence of Standard of Care Need for Expert Testimony Adopted by Trade Association Evidence of Industry Standard Adopted by Fed/State Agency Proof of Standard of Care
Products/Strict Liability: Compliance is Evidence that Product is not Defective Expert Testimony On strength of standard/sdo Process to establish If adopted by government, may end the issue
Standards provide a basis for (nonscientific/technical) judges to make scientific/technical decisions.
Daubert: Judges must evaluate proffered expert testimony for relevancy and reliability Reliability Considerations: Repeatability/Testability Peer Reviewed/Published Existence of Standards/Error Rate Generally Accepted by Scientific Community
Changes to Standards: What Impact? Standard is evidence/proof of standard of care at a Point in Time Standard of Care can be an evolving concept Depends on why standard changed and info available when first adopted Inquiry into process Was problem discussed when first adopted
Questions? Thomas B. O'Brien Jr. Vice President & General Counsel ASTM International 100 Barr Harbor Drive West Conshohocken, PA 19428-2959 1-610-832-9597 1-610-832-9599 (fax) tobrien@astm.org