[Federal Register Volume 74, Number 141 (Friday, July 24, 2009)]
[Notices]
[Pages 36712-36714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17704]


-----------------------------------------------------------------------

FEDERAL TRADE COMMISSION

[Docket No. 9310]


Aspen Technology, Inc.; Analysis to Aid Public Comment on 
Proposed Agreement Containing Order to Show Cause and Order Modifying 
Order

AGENCY: Federal Trade Commission.

ACTION: Proposed Consent Agreement.

-----------------------------------------------------------------------

SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices or unfair methods of competition. The attached Analysis to 
Aid Public Comment describes both the allegations in the complaint and 
the terms of the consent order -- embodied in the consent agreement -- 
that would settle these allegations.

DATES: Comments must be received on or before August 5, 2009.

ADDRESSES: Interested parties are invited to submit written comments 
electronically or in paper form. Comments should refer to ``Aspen 
Technology, Inc., Docket No. 9310'' to facilitate the organization of 
comments. Please note that your comment -- including your name and your 
state -- will be placed on the public record of this proceeding, 
including on the publicly accessible FTC website, at (http://www.ftc.gov/os/publiccomments.shtm).
    Because comments will be made public, they should not include any 
sensitive personal information, such as an individual's Social Security 
Number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number; 
financial account number; or credit or debit card number. Comments also 
should not include any sensitive health information, such as medical 
records or other individually identifiable health information. In 
addition, comments should not include any ``[t]rade secret or any 
commercial or financial information which is obtained from any person 
and which is privileged or confidential. . . .,'' as provided in 
Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and Commission Rule 
4.10(a)(2), 16 CFR 4.10(a)(2). Comments containing material for which 
confidential treatment is requested must be filed in paper form, must 
be clearly labeled ``Confidential,'' and must comply with FTC Rule 
4.9(c).\1\
---------------------------------------------------------------------------

    \1\The comment must be accompanied by an explicit request for 
confidential treatment, including the factual and legal basis for 
the request, and must identify the specific portions of the comment 
to be withheld from the public record. The request will be granted 
or denied by the Commission's General Counsel, consistent with 
applicable law and the public interest. See FTC Rule 4.9(c), 16 CFR 
4.9(c).
---------------------------------------------------------------------------

    Because paper mail addressed to the FTC is subject to delay due to 
heightened security screening, please consider submitting your comments 
in electronic form. Comments filed in electronic form should be 
submitted by using the following weblink: (https://secure.commentworks.com/ftc-AspenTech/) Tech (and following the 
instructions on the web-based form). To ensure that the Commission 
considers an electronic comment, you must file it on the web-based form 
at the weblink: (https://secure.commentworks.com/ftc-AspenTech/). If 
this Notice appears at (http://www.regulations.gov/search/index.jsp), 
you may also file an electronic comment through that website. The 
Commission will consider all comments that regulations.gov forwards to 
it. You may also visit the FTC website at (http://www.ftc.gov/) to read 
the Notice and the news release describing it.
    A comment filed in paper form should include the ``Aspen 
Technology, Inc., Docket No. 9310 reference both in the text and on the 
envelope, and should be mailed or delivered to the following address: 
Federal Trade Commission, Office of the Secretary, Room H-135, 600 
Pennsylvania Avenue, NW, Washington, DC 20580. The FTC is requesting 
that any comment filed in paper form be sent by courier or overnight 
service, if possible, because U.S. postal mail in the Washington area 
and at the Commission is subject to delay due to heightened security 
precautions.
    The Federal Trade Commission Act (``FTC Act'') and other laws the 
Commission administers permit the collection of public comments to 
consider and use in this proceeding as appropriate. The Commission will 
consider all timely and responsive public comments that it receives, 
whether filed in paper or electronic form. Comments received will be 
available to the public on the FTC website, to the extent practicable, 
at (http://www.ftc.gov/os/publiccomments.shtm). As a matter of 
discretion, the Commission makes every effort to remove home contact 
information for individuals from the public comments it receives before 
placing those comments on the FTC website. More information, including 
routine uses permitted by the Privacy Act, may be found in the FTC's 
privacy policy, at (http://www.ftc.gov/ftc/privacy.shtm).

[[Page 36713]]


FOR FURTHER INFORMATION CONTACT: Daniel P. Ducore, Bureau of 
Competition, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580, (202) 
326-2526.

SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and Sec.  3.25(f) 
the Commission Rules of Practice, 16 CFR 3.25(f), notice is hereby 
given that the above-captioned consent agreement containing a consent 
order to cease and desist, having been filed with and accepted, subject 
to final approval, by the Commission, has been placed on the public 
record for a period of thirty (30) days. The following Analysis to Aid 
Public Comment describes the terms of the consent agreement, and the 
allegations in the complaint. An electronic copy of the full text of 
the consent agreement package can be obtained from the FTC Home Page 
(for July 6, 2009), on the World Wide Web, at (http://www.ftc.gov/os/2009/07/index.htm). A paper copy can be obtained from the FTC Public 
Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW, Washington, 
D.C. 20580, either in person or by calling (202) 326-2222.
    Public comments are invited, and may be filed with the Commission 
in either paper or electronic form. All comments should be filed as 
prescribed in the ADDRESSES section above, and must be received on or 
before the date specified in the DATES section.

Analysis of Agreement Containing Consent Order to Aid Public Comment

    The Federal Trade Commission, subject to its final approval, has 
accepted for public comment an Agreement Containing Order to Show Cause 
and Order Modifying Order (``Proposed Modifying Order'' or ``Order'') 
with Aspen Technology, Inc. (``Aspen'') to resolve the Commission's 
investigation related to Aspen's compliance with its obligations under 
the Decision and Order issued in this matter on December 20, 2004 
(``Original Order'').
    The Original Order required, among other things, that Aspen divest 
the software product HYSYS and certain related assets Aspen had 
obtained through its acquisition of Hyprotech, Ltd. (``Hyprotech 
assets''). Under the terms of the Original Order, Aspen was required to 
divest the Hyprotech assets on or before March 28, 2005, to an acquirer 
approved by the Commission. On December 20, 2004, the Commission 
approved Honeywell International Inc. (``Honeywell'') as the acquirer 
of the Hyprotech assets.
    Following entry of the Original Order in 2004, issues arose 
concerning the scope and timeliness of Aspen's compliance. After a full 
investigation, the Commission found reason to believe that Aspen had 
not complied fully with its obligations; the Commission notified the 
Department of Justice of its intention to file an enforcement action 
under Section 5(l) of the FTC Act. The Commission has since determined 
in its discretion that, rather than pursuing the enforcement action, it 
is in the public interest to reopen this proceeding pursuant to Section 
3.72(b) of the Commission's Rules of Practice, 16 CFR Sec.  3.72(b), 
and modify the Original Order by adding provisions intended to 
remediate the inability of the Original Order to achieve fully its 
stated purpose as a result of actions by Aspen. Although Aspen denies 
these allegations, it has consented to entry of the Proposed Modifying 
Order.
    The Proposed Modifying Order revises the Original Order by 
requiring Aspen to maintain the capability to save customer case files 
containing the Input Variables created in Aspen HYSYS, Aspen HYSYS 
Dynamics, and certain heat exchange simulation software products into a 
Portable Format, as defined in the Order. The Order further requires 
Aspen to provide Honeywell with certain technical information to enable 
Honeywell to utilize the Portable Format. These provisions are intended 
to enable Honeywell to compete with Aspen as intended by the Original 
Order.
    The Proposed Modifying Order has been placed on the public record 
for 30 days for interested persons to comment. Comments received during 
this 30 day period will become part of the public record. After 30 
days, the Commission will again review the Proposed Modifying Order and 
the comments received and will decide whether it should withdraw the 
Proposed Modifying Order or make the Proposed Modifying Order final.

1. The Respondent

    Aspen, headquartered in Burlington, Massachusetts, is a developer 
and worldwide supplier of simulation software. Its products are used by 
firms in the refining, oil and gas, petrochemical, chemical, 
pharmaceutical, and other process manufacturing industries and by 
engineering and construction companies that support those industries.

2. The Proposed Modifying Order

    The Proposed Modifying Order requires Aspen to complete and 
maintain a Portable Format Export/Import Feature for Aspen HYSYS 6.0, 
Aspen HYSYS 7.1 and all current and future versions of Aspen HYSYS, 
Aspen HYSYS Dynamics, and the covered heat exchange simulation software 
products until December 31, 2014, or if Honeywell exercises the option 
permitted it in the Order, until December 31, 2016. The Order defines a 
Portable Format Export/Import Feature as the provision for the export 
into and import from a Portable Format of Input Variables. The Order 
further defines a Portable Format as a structured file format that is 
both human and machine-readable and defines an Input Variable as all 
user input data related to calculations and basic user input data 
related to HYSYS flowsheet block and stream graphical layouts. The 
current Portable Format generally used by Aspen is an XML format.
    The Proposed Modifying Order also requires Aspen to provide 
Honeywell with certain Technical Documentation, which is defined as 
tags used to identify the user input variable, data types of the tags 
(e.g., integer, real, Boolean, text, choice), valid choices for choice 
data types, and a definition of the meaning of the tags. The Technical 
Information will provide information to Honeywell that is intended to 
allow it to develop the ability to import Input Variables written by 
Aspen to the Portable Format and to export those Input Variables into 
the Portable Format. Under the terms of the Proposed Modifying Order, 
Dr. Thomas L. Teague is appointed as Monitor. The Monitor will Validate 
the Portable Format Export/Import Feature in the relevant software 
products, review the completeness of Technical Documentation provided 
by Aspen to Honeywell, and take other steps to monitor Aspen's 
compliance with its obligations under the Order, including reporting on 
a regular basis to the Commission. The Order requires Aspen to grant 
and transfer to the Monitor all rights, powers, and authority necessary 
to carry out the Monitor's duties and responsibilities.
    To ensure the Portable Format Export/Import Feature in HYSYS 2006.0 
and HYSYS 7.1 is complete, the Order requires Aspen to update HYSYS 
2006.0 to complete the Portable Format Export/Import Feature . The 
Monitor will Validate the HYSYS 2006.0 Update, to verify that the 
Portable Format Export/Import Feature is complete and functional, by 
verifying that (i) as to the Input Variables common to Aspen HYSYS and 
Aspen HYSYS Dynamics versions 7.1 and HYSYS 2006.0 Update, the native 
input report (.dmp) text files for each case in a HYSYS Portability 
Test Suite are shown to be substantially

[[Page 36714]]

the same as the input report (.dmp) files that are produced when the 
Portable Format file is exported from Aspen HYSYS version 7.1 and Aspen 
HYSYS Dynamics version 7.1, and then imported as a new case in HYSYS 
2006.0 Update, and (ii) running HYSYS 2006.0 Update in calculation 
mode, each case in the HYSYS Portability Test Suite demonstrates that 
the calculation results from the original case file and the calculation 
results from the exported/imported case file are substantially the 
same. The HYSYS Portability Suite is a group of test cases provided by 
Aspen and reviewed by the Monitor that tests the capability of the 
Portable Format Export/Import Feature to import and export all Input 
Variables. The Order requires Aspen to fix any errors in the Portable 
Format Export/Import of the HYSYS 2006.0 Update discovered by the 
Monitor during the Validation process.
    To facilitate Honeywell's development of the capability to import 
cases exported by Aspen using the Portable Format Export/Import 
Feature, the Proposed Modifying Order requires Aspen to provide 
Honeywell with the HYSYS 2006.0 Update, including object and source 
code, the HYSYS Portability Test Suite, and Technical Documentation of 
any modifications to the Portable Format or Input Variables between the 
HYSYS 2006.0 Update and the versions of HYSYS 7.1 or HYSYS Dynamics 7.1 
current as of April 30, 2009.
    To ensure all HTFS+ products have functional Portable Format 
Export/Import Features, Aspen is required to provide the Monitor and 
Honeywell with Technical Documentation of the HTFS+ Portable Format and 
an HTFS+ Test Suite. The Monitor will review both the Technical 
Documentation and HTFS+ Test Suite and require any necessary 
modification.
    During the term of the Proposed Modifying Order, Aspen is required 
to take certain actions before releasing any new version of Aspen 
HYSYS, Aspen HYSYS Dynamics, or of the covered heat exchange software 
products. Aspen is required to provide the Monitor with a beta version 
of planned new releases of these products for review and Validation. 
The Monitor must be able to Validate new versions of Aspen HYSYS and 
Aspen HYSYS Dynamics by verifying (i) that native input report (.dmp) 
text files in the new release are shown to be substantially the same as 
the input report (.dmp) files that are produced when the Portable 
Format file is exported and then imported as a new case in the new 
release, (ii) as to Input Variables common to the new release and HYSYS 
2006.0 Update, that the native input report (.dmp) text files for each 
case in the HYSYS Portability Test Suite are shown to be substantially 
the same as the input report (.dmp) files that are produced when the 
Portable Format file is exported from the new release and then imported 
as a new case in HYSYS 2006.0 Update, and (iii) the Portable Format 
Export/Import Feature is used in the new release in a substantially 
similar manner as such feature is used in HYSYS 2006.0 Update. Aspen 
cannot release the new version until the Monitor completes Validation 
of the product, provided that the Monitor completes such Validation in 
a timely fashion; otherwise, the Validation may be completed post-
release.
    Aspen is also required to provide the Monitor with Technical 
Documentation of Portable Format tags for all new Input Variables in 
the proposed new release, which the Monitor shall review for 
completeness. Aspen must also provide Honeywell with a copy of the 
Technical Documentation two weeks prior to publishing the new release. 
The Documentation provided to Honeywell must either incorporate 
revisions to the Technical Documentation required by the Monitor or 
provide such revisions as an update to the documentation, depending on 
when the Monitor informs Aspen of the need for such revisions.
    If, during the term of the Proposed Modifying Order, Aspen replaces 
XML as the Portable Format used in Aspen HYSYS, Aspen HYSYS Dynamics, 
or the covered heat exchanges simulation software products, the Monitor 
must determine the appropriate procedure for Validating releases using 
the new Portable Format and providing Technical Documentation to 
Honeywell. Aspen cannot ship a new release of Aspen HYSYS, Aspen HYSYS 
Dynamics, or the covered heat exchanges simulation software products 
until two weeks after it has provided to Honeywell all Technical 
Documentation required by the Monitor.
    By direction of the Commission, with Commissioner J. Thomas Rosch 
recused.

Donald S. Clark
Secretary
[FR Doc. E9-17704 Filed 7-23-09: 7:17 am]
BILLING CODE 6750-01-S