[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]
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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.
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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\
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\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).
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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
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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