Why an Original can be Better than a Copy: Intellectual Property, the Antitrust Refusal to Deal, and ISO Antitrust Litigation


In "In re Independent Service Organization Antitrust Litigation", the United States Court of Appeals for the Federal Circuit held that the Xerox corporation's refusal to sell or license its patented parts, copyrighted manuals, and patented and copyrighted software to independent service organizations did not violate the antitrust laws. Plaintiffs have filed a writ of certiorari based on the claim that the Federal Circuit's holding is in direct conflict with the Ninth Circuit's antitrust holdings in Image Technical Services v. Kodak. In this paper, we argue that this conflict is largely illusory. The decision in the Xerox case is exactly the result contemplated when the Federal Circuit was created - the recognition and uniform treatment of the patent holder's rights under the statutory patent grant. The Xerox decision does not go beyond this, and a comparison of these two decisions does not present a compelling case for the Court to unify their outcomes by reversing Xerox.