1. ASTM Legal Module ASTM Headquarters September 20-21, 2016
Tom O’Brien – ASTM General Counsel

2. Discussion Topics
Antitrust
IP Issues
Use of ASTM Standards

3. Antitrust Issues
ASTM Reg. 19
Issues ASTM has faced
Guidance

4. 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”

5. 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

6. 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.

7. ASTM Experience
Four lawsuits – ASTM named as a Party Five lawsuits between members or involving members

8. It’s the Process! Voting Interests Balance Inclusion, not exclusion
Handling of Negative Votes
Patents
Running Efficient Meeting
Contact staff manager/me

9. 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

10. Intellectual Property: Policy and Procedures
Who can Copyright?
Author
Employer (Work-for-Hire)
Assignee
What are the rights protected?
Reproduction
Derivative Works
Distribution/Sale

11. 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.”

12. Intellectual Property Policy
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…

13. Right From The Beginning
When does a standard/draft become ASTM IP?
Right From The Beginning

17. 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 All rights reserved.

18. Working Document Caveats
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 All rights reserved.

19. Trademarks ASTM Logo Policy:
Cannot be used to signify or imply approval or certification by ASTM of Business, Product or Services
F & S F.4.2 Trademarks

20. 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 All rights reserved.

21. Joint Standards Development
Means Sharing IP
If ASTM IP, must follow ASTM Practice

22. 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

23. Current Lawsuit
ASTM, et al v. PublicResource.org
21 September 2018

24. Legal System’s Use of Standards

25. Contract: Compliance with Terms
Negligence: Proof/Evidence of Standard of Care
Product Liability: Proof/Evidence of a Defect

26. Standard of Care:
“…that degree of care which a reasonably prudent person should exercise under same or similar circumstances.”

27. Product Defect:
Existence of a defective condition that makes a product unreasonably dangerous to the user or consumer

28. Contract Intent of Parties Standard Referenced
Non-Conformity is a Breach

29. 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

30. 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

31. Standards provide a basis for (non-scientific/technical) judges to make scientific/technical decisions.

32. 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

33. 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

34. Questions?
Thomas B. O'Brien Jr. Vice President & General Counsel ASTM International 100 Barr Harbor Drive West Conshohocken, PA (fax)

35. THANK YOU FOR YOUR ATTENTION!