Unilateral refusals to deal in intellectual property after Image TechnicalServices, Inc. v. Eastman Kodak Co.

While the Federal Patent and Copyright Acts give patent and copyright holde rs limited exclusive rights in intellectual property, the Sherman Act prohi bits combinations or conspiracies that restrain trade and monopolization. A lthough firms possessing intellectual property generally exercise their sta tutory exclusionary rights without running afoul of the antitrust laws, con duct 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 fo r antitrust liability. The Ninth Circuit departed from this trend in the re cent opinion of Image Technical Services, Inc. v. Eastman Kodak Co., holdin g that a unilateral refusal to deal in patented and copyrighted material ca n alone constitute sufficiently exclusionary conduct to state a section 2 S herman Act claim for monopolization or attempted monopolization. In so hold ing, the Ninth Circuit ignored relevant precedent and crafted a test that o ffers little practical guidance on the limits of a patent or copyright hold er's exclusionary powers in the context of a Sherman Act section 2 claim. T his Note argues that, while the Ninth Circuit reached the correct conclusio n in this case, the court's broad test insufficiently protects holders of i ntellectual property from antitrust attack for exercising their statutorily -authorized exclusive rights, and offers no compelling tangible benefit to consumers.