In the Senate of the United States,
April 2, 2004.
Resolved, That the bill from the House of Representa-
tives (H.R. 1086) entitled ‘‘An Act to encourage the develop-
ment and promulgation of voluntary consensus standards by
providing relief under the antitrust laws to standards develop-
ment organizations with respect to conduct engaged in for the
purpose of developing voluntary consensus standards, and for
other purposes.’’, do pass with the following
AMENDMENT:
Strike out all after the enacting clause and insert:
TITLE I—STANDARDS DEVELOP-
MENT 
ORGANIZATION 
AD-
VANCEMENT ACT OF 2003
SEC. 101. SHORT TITLE.
This title may be cited as the ‘‘Standards Development
Organization Advancement Act of 2003’’.
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SEC. 102. FINDINGS.
The Congress finds the following:
(1) In 1993, the Congress amended and renamed
the National Cooperative Research Act of 1984 (now
known as the National Cooperative Research and Pro-
duction Act of 1993 (15 U.S.C. 4301 et seq.)) by en-
acting the National Cooperative Production Amend-
ments of 1993 (Public Law 103–42) to encourage the
use of collaborative, procompetitive activity in the
form of research and production joint ventures that
provide adequate disclosure to the antitrust enforce-
ment agencies about the nature and scope of the activ-
ity involved.
(2) Subsequently, in 1995, the Congress in enact-
ing the National Technology Transfer and Advance-
ment Act of 1995 (15 U.S.C. 272 note) recognized the
importance of technical standards developed by vol-
untary consensus standards bodies to our national
economy by requiring the use of such standards to the
extent practicable by Federal agencies and by encour-
aging Federal agency representatives to participate in
ongoing standards development activities. The Office
of Management and Budget on February 18, 1998, re-
vised Circular A–119 to reflect these changes made in
law.
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(3) Following enactment of the National Tech-
nology Transfer and Advancement Act of 1995, tech-
nical standards developed or adopted by voluntary
consensus standards bodies have replaced thousands of
unique Government standards and specifications al-
lowing the national economy to operate in a more
unified fashion.
(4) Having the same technical standards used by
Federal agencies and by the private sector permits the
Government to avoid the cost of developing duplica-
tive Government standards and to more readily use
products and components designed for the commercial
marketplace, thereby enhancing quality and safety
and reducing costs.
(5) Technical standards are written by hundreds
of nonprofit voluntary consensus standards bodies in
a nonexclusionary fashion, using thousands of volun-
teers from the private and public sectors, and are de-
veloped under the standards development principles
set out in Circular Number A–119, as revised Feb-
ruary 18, 1998, of the Office of Management and
Budget, including principles that require openness,
balance, transparency, consensus, and due process.
Such principles provide for—
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(A) notice to all parties known to be af-
fected by the particular standards development
activity,
(B) the opportunity to participate in stand-
ards development or modification,
(C) balancing interests so that standards
development activities are not dominated by any
single group of interested persons,
(D) readily available access to essential in-
formation regarding proposed and final stand-
ards,
(E) the requirement that substantial agree-
ment be reached on all material points after the
consideration of all views and objections, and
(F) the right to express a position, to have
it considered, and to appeal an adverse decision.
(6) There are tens of thousands of voluntary con-
sensus standards available for government use. Most
of these standards are kept current through interim
amendments and interpretations, issuance of ad-
denda, and periodic reaffirmation, revision, or
reissuance every 3 to 5 years.
(7) Standards developed by government entities
generally are not subject to challenge under the anti-
trust laws.
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(8) Private developers of the technical standards
that are used as Government standards are often not
similarly protected, leaving such developers vulnerable
to being named as codefendants in lawsuits even
though the likelihood of their being held liable is re-
mote in most cases, and they generally have limited
resources to defend themselves in such lawsuits.
(9) Standards development organizations do not
stand to benefit from any antitrust violations that
might occur in the voluntary consensus standards de-
velopment process.
(10) As was the case with respect to research and
production joint ventures before the passage of the Na-
tional Cooperative Research and Production Act of
1993, if relief from the threat of liability under the
antitrust laws is not granted to voluntary consensus
standards bodies, both regarding the development of
new standards and efforts to keep existing standards
current, such bodies could be forced to cut back on
standards development activities at great financial
cost both to the Government and to the national econ-
omy.
SEC. 103. DEFINITIONS.
Section 2 of the National Cooperative Research and
Production Act of 1993 (15 U.S.C. 4301) is amended—
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(1) in subsection (a) by adding at the end the
following:
‘‘(7) The term ‘standards development activity’
means any action taken by a standards development
organization for the purpose of developing, promul-
gating, revising, amending, reissuing, interpreting, or
otherwise maintaining a voluntary consensus stand-
ard, or using such standard in conformity assessment
activities, including actions relating to the intellec-
tual property policies of the standards development
organization.
‘‘(8) The term ‘standards development organiza-
tion’ means a domestic or international organization
that plans, develops, establishes, or coordinates vol-
untary consensus standards using procedures that in-
corporate the attributes of openness, balance of inter-
ests, due process, an appeals process, and consensus in
a manner consistent with the Office of Management
and Budget Circular Number A–119, as revised Feb-
ruary 10, 1998. The term ‘standards development or-
ganization’ shall not, for purposes of this Act, include
the parties participating in the standards develop-
ment organization.
‘‘(9) The term ‘technical standard’ has the mean-
ing given such term in section 12(d)(4) of the Na-
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tional Technology Transfer and Advancement Act of
1995.
‘‘(10) The term ‘voluntary consensus standard’
has the meaning given such term in Office of Manage-
ment and Budget Circular Number A–119, as revised
February 10, 1998.’’; and
(2) by adding at the end the following:
‘‘(c) The term ‘standards development activity’ ex-
cludes the following activities:
‘‘(1) Exchanging information among competitors
relating to cost, sales, profitability, prices, marketing,
or distribution of any product, process, or service that
is not reasonably required for the purpose of devel-
oping or promulgating a voluntary consensus stand-
ard, or using such standard in conformity assessment
activities.
‘‘(2) Entering into any agreement or engaging
in any other conduct that would allocate a market
with a competitor.
‘‘(3) Entering into any agreement or conspiracy
that would set or restrain prices of any good or serv-
ice.’’.
SEC. 104. RULE OF REASON STANDARD.
Section 3 of the National Cooperative Research and
Production Act of 1993 (15 U.S.C. 4302) is amended by
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striking ‘‘of any person in making or performing a contract
to carry out a joint venture shall’’ and inserting the fol-
lowing: ‘‘of—
‘‘(1) any person in making or performing a con-
tract to carry out a joint venture, or
‘‘(2) a standards development organization while
engaged in a standards development activity,
shall’’.
SEC. 105. LIMITATION ON RECOVERY.
Section 4 of the National Cooperative Research and
Production Act of 1993 (15 U.S.C. 4303) is amended—
(1) in subsections (a)(1), (b)(1), and (c)(1) by
inserting ‘‘, or for a standards development activity
engaged in by a standards development organization
against which such claim is made’’ after ‘‘joint ven-
ture’’,
(2) in subsection (e)—
(A) by inserting ‘‘, or of a standards devel-
opment activity engaged in by a standards devel-
opment organization’’ before the period at the
end, and
(B) by redesignating such subsection as sub-
section (f), and
(3) by inserting after subsection (d) the fol-
lowing:
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‘‘(e) Subsections (a), (b), and (c) shall not be construed
to modify the liability under the antitrust laws of any per-
son (other than a standards development organization)
who—
‘‘(1) directly (or through an employee or agent)
participates in a standards development activity with
respect to which a violation of any of the antitrust
laws is found,
‘‘(2) is not a fulltime employee of the standards
development organization that engaged in such activ-
ity, and
‘‘(3) is, or is an employee or agent of a person
who is, engaged in a line of commerce that is likely
to benefit directly from the operation of the standards
development activity with respect to which such viola-
tion is found.’’.
SEC. 106. ATTORNEY FEES.
Section 5 of the National Cooperative Research and
Production Act of 1993 (15 U.S.C. 4304) is amended—
(1) in subsection (a) by inserting ‘‘, or of a
standards development activity engaged in by a
standards development organization’’ after ‘‘joint ven-
ture’’, and
(2) by adding at the end the following:
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‘‘(c) Subsections (a) and (b) shall not apply with re-
spect to any person who—
‘‘(1) directly participates in a standards devel-
opment activity with respect to which a violation of
any of the antitrust laws is found,
‘‘(2) is not a fulltime employee of a standards
development organization that engaged in such activ-
ity, and
‘‘(3) is, or is an employee or agent of a person
who is, engaged in a line of commerce that is likely
to benefit directly from the operation of the standards
development activity with respect to which such viola-
tion is found.’’.
SEC. 107. DISCLOSURE OF STANDARDS DEVELOPMENT AC-
TIVITY.
Section 6 of the National Cooperative Research and
Production Act of 1993 (15 U.S.C. 4305) is amended—
(1) in subsection (a)—
(A) by redesignating paragraphs (1), (2),
and (3) as subparagraphs (A), (B), and (C), re-
spectively,
(B) by inserting ‘‘(1)’’ after ‘‘(a)’’, and
(C) by adding at the end the following:
‘‘(2) A standards development organization may, not
later than 90 days after commencing a standards develop-
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ment activity engaged in for the purpose of developing or
promulgating a voluntary consensus standards or not later
than 90 days after the date of the enactment of the Stand-
ards Development Organization Advancement Act of 2003,
whichever is later, file simultaneously with the Attorney
General and the Commission, a written notification
disclosing—
‘‘(A) the name and principal place of business of
the standards development organization, and
‘‘(B) documents showing the nature and scope of
such activity.
Any standards development organization may file addi-
tional disclosure notifications pursuant to this section as
are appropriate to extend the protections of section 4 to
standards development activities that are not covered by the
initial filing or that have changed significantly since the
initial filing.’’,
(2) in subsection (b)—
(A) in the 1st sentence by inserting ‘‘, or a
notice with respect to such standards develop-
ment activity that identifies the standards devel-
opment organization engaged in such activity
and that describes such activity in general
terms’’ before the period at the end, and