(U. S. Note)

　Washington, February 1, 1990

　Sir,
I have the honor to refer to the Agreement between the Government of the United States of America and the Government of Japan on Cooperation in Research and Development in Energy and Related Fields, signed at Washington on May 2, 1979, and extended by the notes exchanged on April 28, 1989 and on October 31, 1989 (hereinafter referred to as "the Agreement"). I have further the honor to confirm, on behalf of the Government of the United States of America, the following under standing reached recently between the representatives of the two Governments:

1. The Agreement, as amended by the provisions of paragraphs 2 to 6 below, shall be extended for a period of five years from the date of entry into force of the present understanding.

2. The existing text of the preamble shall be amended by deleting "Determined to play a constructive role in resolving this problem through close cooperation," and substituting in lieu thereof the following:

　"Determined to play a constructive role in resolving this problem through close cooperation under the policy framework set forth in Article Ⅰ of the Agreement between the Government of the United States of America and the Government of Japan on Cooperation in Research and Development in Science and Technology signed at Toronto on June 20, 1988."

3. Article I shall be deleted and replaced by a New Article Ⅰ as follows:

"Article Ⅰ

　The two Governments will maintain and intensify their cooperation in research and development in energy and related fields for peaceful purposes on the basis of equality and mutual benefit."

4. Paragraphs 1 and 2 of Article Ⅴ shall be deleted and replaced by New Paragraphs 1 and 2 of Article Ⅴ as follows:

"1. The two Governments will establish a United States-Japan Joint Committee on Energy Research and Development (hereinafter referred to as "the Joint Committee") to review activities and accomplishments under this Agreement and to make an annual report of those activities and accomplishments to the two Governments along with recommendations, as necessary, regarding future cooperation under this Agreement.

2. The two Governments will designate no more than five members respectively of the Joint Committee."

5. Article Ⅶ shall be deleted and replaced by a New Article Ⅶ as follows:

"Article VII

1. Scientific and technological information of a non-proprietary nature arising from the cooperative activities under this Agreement may be made available to the public by either Government through customary channels and in accordance with the normal procedures of the participating agencies.

2. The two Governments will ensure:

A. The adequate and effective protection and equitable distribution of intellectual property rights and other rights of a proprietary nature as provided in the Annex created in the course of the cooperative activities under this Agreement; and

B. The adequate and effective protection of intellectual property rights and other rights of a proprietary nature as provided in the Annex introduced in the course of the cooperative activities under this Agreement,

　in accordance with the laws and regulations of the respective countries and with inter national agreements to which the United States of America and Japan are or will be parties. The two Governments will consult for this purpose as necessary.

3. Details and procedures for the protection and distribution of intellectual property rights and other rights of a proprietary nature as referred to in paragraph 2 above are set forth in the Annex, which is an integral part of this Agreement. The Annex is applicable to any cooperative activities under this Agreement, except as otherwise specifically agreed by the parties to the cooperative activities concerned, in individual implementing arrangements or otherwise. Implementing arrangements may also elaborate the provisions of the Annex.

4. Issues that arise between the parties to a cooperative activity regarding the treatment of information, inventions, discoveries, writings, etc., under this Article or the Annex will be settled, in principle, between those parties. Any such issues which cannot be resolved by those parties may be referred to the Joint Committee.

5. The two Governments support the widest possible dissemination of the information or equipment created in the course of the cooperative activities under this Agreement, unless otherwise stipulated in this Article or the Annex. In furtherance of the principle of maintaining an open basic research environment, the two Governments confirm that no information or equipment classified for reasons of national defense will be utilized in the cooperative activities under this Agreement.

6. The transfer of export-controlled information or equipment between the countries in the course of the cooperative activities under this Agreement will be in accordance with the applicable national export control laws and regulations of each country. Each Government will take all necessary and appropriate measures, in accordance with applicable national laws and regulations, to prevent the diversion to unauthorized destinations of export-controlled information and equipment provided or produced in the course of the cooperative activities under this Agreement."

6. In addition, the following Annex shall be attached as an integral part of the Agreement.

"ANNEX

　PROTECTION AND DISTRIBUTION OF INTELLECTUAL PROPERTY RIGHTS AND OTHER RIGHTS OF A PROPRIETARY NATURE

1. Business-Confidential Information

A. For the purpose of this Annex, "business-confidential information" means any know-how, technical data, or technical, commercial, or financial information that meets all of the following conditions:

(i) It is of a type customarily held in confidence for commercial reasons;

(ii) It is not generally known or publicly available from other sources;

(iii) It has not been previously made available by the owner to others without an obligation concerning its confidentiality; and

(iv) It is not already in the possession of the recipient without an obligation concerning its confidentiality.

B. Any business-confidential information will be furnished or, when created in the course of the cooperative activities under this Agreement, transferred only by mutual written agreement of the parties to the cooperative activity concerned and will be given full protection in accordance with the laws and regulations of their respective countries.

C. Any business-confidential information will be appropriately identified before it is furnished in the course of the cooperative activities under this Agreement or, unless otherwise provided in the implementing arrangements, immediately upon being created Responsibility for identifying such information will fall on the party which furnishes it or asserts that it is to be protected. Unidentified information will be assumed not to be information to be protected except that a Party to the cooperative activity may notify the other party in writing, within a reasonable period of time after furnishing or transferring such information, that such information is business-confidential information under the laws and regulations of its country. Such information will thereafter be protected in accordance with subparagraph B above.

2. Ownership of Intellectual Property Rights

　Between each Government and nationals of its country, the ownership of intellectual property rights will be determined in accordance with its national laws, regulations and practices.

3. Inventions

A. For the purpose of this Annex, the "invention" means any invention made in the course of the cooperative activities under this Agreement which is or may be patentable or otherwise protectable under the laws of the United States of America, Japan or any third country.

B. As to an Invention, the parties to the cooperative activity concerned will take appropriate steps, in accordance with the national laws and regulations of the respective countries, with a view to realizing the following:

(i) If an Invention is made as a result of a cooperative activity under this Agreement that involves only the transfer or exchange of information between the parties, such as by joint meetings, seminars, or the exchange of technical reports or paper s, unless otherwise provided in an applicable implementing arrangement:

(a) the party whose personnel make the Invention (hereinafter referred to as "the Inventing Party") or the personnel who make the Invention (hereinafter referred to as "the Inventor") have the right to obtain all rights and interests in the Invention in all countries, and

(b) in any country where the inventing Party or the Inventor decides not to obtain such rights and interests, the other party has the right to do so.

(ii) If the Invention is made by an Inventor of a party ("the Assigning Party") while assigned to another party ("the Receiving Party") in the course of programs of a cooperative activity that involve only the visit or exchange of scientists and engineer, and

(a) in the case where the Receiving Party is expected to make a major and substantial contribution to the programs of the cooperative activity:

i. the Receiving Party has the right to obtain all rights and interests in the Invention in all countries, and

ii. in any country where the Receiving Party decides not to obtain such rights and interests, the Assigning Party or the Inventor has the right to do so;

(b) in the case where the provision in subparagraph (a) above is not satisfied:

i. the Receiving Party has the right to obtain all rights and interests in the Invention in its own country and in third countries,

ii. the Assigning Party or the Inventor has the right to obtain all rights and interests in the Invention in its own country, and

iii. in any country where the Receiving Party decides not to obtain such rights and interests, the Assigning Party or the Inventor has the right to do so.

(iii) Specific arrangements involving other forms of the cooperative activities, such as joint research projects with an agreed research work scope, will provide for the mutually agreed upon disposition, on an equitable basis, of rights to the Invention made as a result of such activities.

(iv) The Inventing Party will disclose promptly the Invention to the other party and furnish any documentation or information necessary to enable the other party to establish rights to which it may be entitled. The Inventing Party may ask the other party in writing to delay publication or public disclosure of such documentation or information for the purpose of protecting its rights or the rights of the Inventor related to the Invention. Unless otherwise agreed in writing, such restrictions will not exceed a period of six months from the date of communication of such documentation or information.

4. Copyrights

　Disposition of rights to Copyright-protected works created in the course of the cooperative activities under this Agreement will be determined in the relevant implementing arrangements. The parties to the cooperative activities concerned will take appropriate steps to secure copyright to works created in the course of the cooperative activities under this Agreement in accordance with the national laws and regulations of the respective countries.

5. Rights to Semiconductor Chip Layout Designs

　Disposition of rights to semiconductor chip layout designs created in the course of the cooperative activities under this Agreement will be determined in the relevant implementing arrangements. The parties to the cooperative activities concerned will take appropriate steps to secure rights to semiconductor chip layout designs created in the course of the cooperative activities under this Agreement in accordance with the national laws and regulations of the respective countries.

6. Other Forms of Intellectual Property

　For those other forms of intellectual property created in the course of the cooperative activities under this Agreement which are protected under the laws of either country, disposition of rights will be determined on an equitable basis, in accordance with the laws and regulations of the respective countries.

7. Cooperation

　Each party to the cooperative activity concerned will take all necessary and appropriate steps, in accordance with the laws and regulations of its country, to provide for the cooperation of its authors and inventors which are required to carry out the provisions of this Annex. Each party to the cooperative activity concerned assumes the sole responsibility for any award or compensation that may be due its personnel in accordance with the laws and regulations of its country, provided, however, that this Annex creates no entitlement to any such award or compensation."

　I have further the honor to propose that the present note and your note in reply confirming on behalf of the Government of Japan the foregoing under standing shall constitute an agreement between the two Governments, which will enter into force on the date of your reply.

　Accept, Sir, the assurances of my high consideration.

　For the Secretary of State:
(Signed) F. M. Bernthal

　Mr. Yoshio Karita
Charge d'Affaires ad interim of Japan

(Japanese Note)

　Washington, February 1, 1990

　Excellency,
I have the honor to acknowledge the receipt of Your Excellency's note of today's date, which reads as follows:

"(U. S. Note)"

　I have further the honor to confirm on behalf of the Government of Japan the foregoing understanding and to agree that Your Excellency's note and this note in reply shall constitute an agreement between the two Governments which will enter into force on the date of this reply.

　Accept, Excellency, the assurances of my highest consideration.

　(Signed) Yoshio Karita
Charge d'Affaires ad interim
of Japan

　His Excellency
James A. Baker III
The Secretary of State