Unilateral Refusals to Deal in Intellectual Property after \u3ci\u3eImage Techical Services, Inc. v. Eastman Kodak Co.\u3c/i\u3e

While the Federal Patent and Copyright Acts give patent and copyright holders limited exclusive rights in intellectual property, the Sherman Act prohibits combinations or conspiracies that restrain trade and monopolization. Although firms possessing intellectual property generally exercise their statutory exclusionary rights without running afoul of the antitrust laws, conduct may plausibly be authorized by intellectual property law but forbidden by antitrust. In construing the two statutory schemes, federal courts have generally held that conduct authorized by the intellectual property laws, in the absence of some further inculpatory action, cannot form the basis for antitrust liability. The Ninth Circuit departed from this trend in the recent opinion of Image Technical Services, Inc. v. Eastman Kodak Co., holding that a unilateral refusal to deal in patented and copyrighted material can alone constitute sufficiently exclusionary conduct to state a section 2 Sherman Act claim for monopolization or attempted monopolization. In so holding, the Ninth Circuit ignored relevant precedent and crafted a test that offers little practical guidance on the limits of a patent or copyright holder\u27s exclusionary powers in the context of a Sherman Act section 2 claim. This Note argues that, while the Ninth Circuit reached the correct conclusion in this case, the court\u27s broad test insufficiently protects holders of intellectual property from antitrust attack for exercising their statutorily-authorized exclusive rights, and offers no compelling tangible benefit to consumers