Reported / Citable
Background
Surgical Instrument Service challenged Intuitive Surgical’s control over attachments and servicing for robot-assisted soft-tissue surgery. Evidence showed Intuitive held more than 99 percent of the robot foremarket and all of the relevant instrument aftermarket, and allegedly used approval restrictions to exclude third-party competitors.
After trial, the district court instructed jurors that the challenger had to prove special Kodak/Epic factors used in certain single-brand aftermarket cases. The verdict favored Intuitive, and the service company appealed.
The Court’s Holding
The Ninth Circuit reversed. The special factors apply when a plaintiff cannot show power in a competitive foremarket and instead claims that a seller later exploited customers locked into a brand. They were unnecessary here because evidence directly supported a conventional claim that dominant foremarket power was leveraged into the tied aftermarket.
The panel also rejected Intuitive’s request for judgment as a matter of law. Evidence could allow a reasonable jury to find preexisting market power and to conclude that Intuitive’s approval process for third-party products and services was illusory.
Key Takeaways
- Courts must distinguish Kodak-style lock-in claims from ordinary foremarket/aftermarket tying theories.
- Near-total power in the primary product market can materially simplify proof of power in a related aftermarket.
- An ostensibly available approval pathway may not defeat an antitrust claim if evidence shows it is not realistically usable.
- Incorrect market-definition instructions can require a new trial.
Why It Matters
The decision matters to California medical-device companies and independent service providers operating within proprietary ecosystems. Firms controlling a platform and its replacement products should assess whether certification, compatibility, or approval programs function as genuine access routes or exclusionary barriers.