Full opinion text
MEMORANDUM AND ORDER VRATIL, District Judge. Creative Copier Services (“CCS”) filed suit against Xerox Corporation, alleging that it violated the federal antitrust laws and state competition laws by refusing to sell copier parts to independent service organizations, tying its sale of parts and service, and disparaging CCS. Xerox filed a counterclaim alleging that CCS had infringed Xerox patents for various copier parts, Xerox copyrights for service manuals and Xerox trademarks associated with copying machines. This matter is before the Court on the Xerox Motion For Summary Judgment On Plaintiff’s State Law Claims For “Defamation And Trade Disparagement” And Tortious Interference With Contract (Doc. # 740) filed April 19, 1999; Xerox Corporation’s Motion For Summary Judgment On Plaintiff’s Antitrust Claims (Doc. # 746) filed April 19, 1999; Xerox Corporation’s Motion For Summary Judgment On Plaintiff’s Antitrust Claims Barred By The Statute Of Limitations (Doc. # 742) filed April 19, 1999; Xerox Corporation’s Motion For Summary Judgment On Its Copyright Infringement Counterclaims (Doc. # 744) filed April 19, 1999; Xerox Corporation’s Motion For Summary Judgment On Patent Infringement (Doc. # 735) filed March 19, 1999; Cross Motion By Creative Copier Service For Summary Judgment On Xerox’s Patent Infringement Counterclaim (Doc. # 756) filed May 3, 1999; Xerox Corporation’s Motion To Strike The Declaration Of Donald Gavin (Doc. # 766) filed June 1, 1999; and Motion By Creative Copier Service To Deem Admitted Matters Pursuant To Local Rule 56.1 And The Order Of April 21, 1999, And To Strike Matters From Xerox' Reply Memo-randa (Doc. # 784) filed June 28, 1999. After carefully considering the parties’ briefs and pertinent portions of the record, the Court is prepared to rule. Summary Judgment Standards Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is “material” only if it “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A “genuine” factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505. The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the non-moving party to demonstrate that genuine issues remain for trial “as to those dispos-itive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241. “[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment.” Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the non-moving party’s evidence is merely color-able or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. “In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505. Discussion I. State Law Claims by CCS A. Factual Background For purposes of the Xerox motion for summary judgment on plaintiffs state law claims, the following facts are undisputed, deemed admitted, or where disputed, viewed in the light most favorable to CCS. Xerox, a New York corporation with its principal offices in Connecticut, is engaged in the business of inventing, manufacturing, selling and servicing copiers. In 1981, William Dixon, a former Xerox employee, founded Creative Copier Services (“CCS”), a sole proprietorship which has its principal place of business in Middletown, Connecticut. CCS is an independent service organization (“ISO”) which services and maintains Xerox copiers. CCS focused its service on the 10 Series of Xerox high volume copiers. These included the 1090 model which makes 90 copies per minute, the 1075 model which makes 75 copies per minute, and the 1065 model which makes 65 copies per minute. See Stat. of Lim. SOF ¶ 25; Antitrust SOF ¶ 3. CCS also serviced a small number of model 9900 high volume copiers, and several lower volume Xerox copiers. On August 18, 1988, Xerox had a national parts verification program. On that date Peggy Murphy, who headed the program, circulated a form letter for Xerox managers to use when former service representatives for Xerox crossed over and joined independent service organizations. See State Claims SOF ¶ 38; Stat. of Lim. SOF ¶ 125. The letter stated in part: Recently, _, the Customer Service Engineer who had been servicing your_ equipment, terminated his (her) employment with Xerox to join an independent service organization. * * * * * * [Y]ou may be approached by _, in his (her) new capacity with a proposal to terminate your Service Contract with Xerox and sign on with the independent service organization he (she) now represents. It is important for you to understand that while _is fully trained on the products he (she) once serviced, he (she) no longer has the benefit of the intensive, ongoing training available to a Xerox Customer Service Engineer. In addition, the independent service organization would not be given access by Xerox to the knowledge required to service Xerox equipment introduced with new technology or other know-how developed by Xerox in the future. State Claims SOF ¶ 38; Stat. of Lim. SOF ¶ 126. After a national meeting of Xerox employees in November 1988, Joseph Nugent, the district service manager for Xerox in Hartford, noted in a memorandum to other employees that CCS and Dixon wanted to service Xerox model 1075/1090 and other low volume copiers. Nugent also noted that Dixon was a minority, got state business and was going after government contracts. See State Claims SOF ¶ 32. In the “Selling Guide” section of an internal memorandum dated December 9, 1988, Xerox stated that it had a nationwide parts availability program and a “computerized parts inventory process to ensure efficient turnaround on parts replacements.” Id. ¶ 39. Xerox also noted that ISOs “may not have the capital” to stock the parts needed to support all service calls. Id. ¶ 41. In 1989, Xerox published an internal guideline of five items which Xerox employees “[could] not say” to customers or potential customers: You cannot disparage the independent service organizations or its employees in any manner. While independent service organizations’ service engineers may have been trained by Xerox initially, they do not have access to current Xerox technical publications or the knowledge required to service Xerox equipment introduced with new technology. Independent service organizations cannot get parts to service Xerox’s newest products. An independent service organization does not have the ability to obtain an adequate supply of replacement parts to service Xerox equipment. Independent service organizations deal or may be dealing in stolen or illegally obtained parts. State Claims SOF ¶ 36. On January 26, 1990, at a meeting of regional district managers for Xerox, Xerox discussed CCS and included it in a list of major ISOs in the United States. See State Claims SOF ¶ 33. In a memorandum circulated after the meeting, Xerox noted that Cigna was the primary account of CCS and that CCS leveraged minority ownership. See id. In September 1994, Xerox provided Nu-gent a script to use in competing against ISOs. It stated: [P]arts [are] at the fingertips of our technicians.... Xerox Parts and Logistics Distribution system makes it possible for Xerox Service technicians to obtain any part within 24 hours.... Our system allows us to locate and deliver any part overnight, so you [w]on’t be left out in the cold when you need your equipment most. Xerox service technicians would never install a “stripped” or “replica” part to maintain your equipment. When considering an alternative service provider for your Xerox equipment, consider the training and skill level of the technicians that will be keeping your equipment up, running and producing for you. State Claims SOF ¶¶ 40, 42, 44; Stat. of Lim. SOF ¶¶ 37, 82. CCS claims that Xerox representatives disparaged CCS to several customers, including Cigna Insurance, Aetna Insurance and the State of Connecticut. Martin Klagholtz, who worked for Xerox as an Accounts Manager through April 1989, testified that Xerox representatives emphasized to potential customers that third party service organizations would have difficulty obtaining parts. See State Claims SOF ¶¶ 45-46; Deposition of R. Martin Klagholtz at 26-27, attached as Exhibit 12 to CCS Consolidated Appendix — Volume I (Doc. #775) filed June 2, 1999. Klagholtz testified, however, that he did not have any personal knowledge that Xerox had disparaged CCS to potential or actual customers. See id. at 71-84. Jim Blake, a CCS technician who had previously worked for Xerox, testified that Xerox technicians told him that Xerox sales representatives were telling customers that CCS could not obtain parts. See State Claims SOF ¶ 52; Deposition of James W. Blake, III at 75, attached as Exhibit 4 to Consolidated Appendix — Volume I (Doc. # 775). The record of disparagement is as follows: Statements to Aetna Insurance: DeRon Franklin, who was responsible for copier service at Aetna, testified that Xerox told him that third party providers such as CCS “might have problems as far as getting parts” and that they would not get any training. See State Claims SOF ¶ 10; Deposition of DeRon Franklin at 12, attached as Exhibit 10 to Consolidated Appendix — Volume I (Doc. # 775). Also, Xerox emphasized that CCS might “not be able to obtain parts as quickly as Xerox.” See id. Franklin told Jackie Dixon, who kept the books and oversaw the dispatch of technicians for CCS, that according to Xerox, CCS “services their machines by using paper clips and rubber bands.” See State Claims SOF ¶ 53. Michael Davis, a manager for corporate purchasing at Aetna, testified that according to his employees, Xerox service representatives said that their copiers failed because they were not using Xerox paper or Xerox service. See State Claims SOF ¶ 51; Deposition of Michael Davis at 13-14, attached as Exhibit 6 to Consolidated Appendix — Volume I (Doc. # 775). Statements to the ■ State of Connecticut: Beginning in 1981, CCS serviced copiers for the State of Connecticut. See Stat. of Lim. SOF ¶ 133; State Claims SOF ¶ 56. According to Edward Jones, purchasing agent for the State, “[state] agencies would call [him] saying Xerox is in there trying to tell horror stories about independent contractors.” See State Claims SOF ¶¶ 12, 56; Jones Depo. at 21-22. Jones had no personal knowledge, however, of disparaging comments. He was only aware of comments by State employees. See id. In 1986 or 1987,. CCS started bidding for service on the 10 series copiers which the State owned or leased. See Stat. of Lim. SOF ¶ 133. The bid specifications required bidders to demonstrate proof of ability to obtain Xerox parts. In 1989, the State re-bid the service contract. See id. ¶ 134. Xerox and CCS were the only two bidders for the 10 series repair business, but CCS was forced to withdraw its bid because of Xerox parts policies. See State Claims SOF ¶ 57; Stat. of Lim. SOF ¶¶ 134-35. The State subsequently awarded Xerox the bid. See State Claims SOF ¶ 57; Stat. of Lim. SOF ¶ 134. B. CCS Defamation Claim To establish a claim for defamation or trade disparagement, CCS must establish that without privilege, Xerox injured it through publication of false statements to third parties. See Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 662 A.2d 89, 102 (1995); Thomas v. Saint Francis Hosp. & Med. Ctr., 990 F.Supp. 81, 92 (D.Conn.1998). Xerox argues that-CCS has failed to produce admissible evidence that it published false comments regarding CCS. Initially, the Court notes that most of the purported evidence of defamation is inadmissible. CCS contends that the Kla-gholtz statement is admissible because he “clearly had personal knowledge, and indeed named people who had made the statements.” Response By Creative Copier Service To Xerox Motion For Summary Judgment On Plaintiff’s State Law Claims For Defamation And Trade Disparagement And Tortious Interference With Contract (Doc. # 774) filed June 2, 1999, at 18. Likewise CCS maintains that Blake had direct knowledge that Xerox defamed CCS. See id. Klagholtz and Blake, however, did not hear the defamatory statements; they learned of them from second hand sources. CCS has not shown that their testimony satisfies any exception to the hearsay rule. Thus the Court disregards the evidence of such statements. CCS claims that because employees of Jones and Davis reported defamatory statements in the normal course of their employment, the statements of Jones and Davis are admissible under the business records exception to the hearsay rule. See Fed.R.Evid. 803(6). The business records exception applies only to written or tangible documents, however, and not to oral statements of employees. See id. (applies to a “memorandum, report, record or data compilation”). The oral statements of an employee, stored in the mind of the individual who heard the statements, lack the indicia of trustworthiness associated with tangible business records prepared at or near the time the information was transmitted. See United States v. Kindred, 918 F.2d 485, 487 n. 2 (5th Cir.1990) (regular business reports more reliable than oral hearsay statements). Moreover, even if the oral statements were within the scope of the business records exception, CCS has not shown that the employees who reported the Xerox statements to Jones and Davis had personal knowledge of the statements, that Jones and Davis kept such statements in their minds in the regular course of business activity, or that the regular practice of their business activity was to keep such reports stored in individual memory banks. See Fed. R.Evid. 803(6). Accordingly, the Court excludes the statements of Jones and Davis. At Aetna, Franklin did have personal knowledge of statements by Xerox representatives. Xerox told Franklin that CCS might have problems getting parts as quickly as Xerox and that “they wouldn’t get any training.” See State Claims SOF ¶ 10. With respect to its inability to timely obtain parts, CCS has admitted the truth of the allegedly defamatory statement. CCS has identified numerous occasions when it could not obtain necessary parts quickly enough to service copiers for its customers. See CCS factual statements in support of its antitrust claim; Stat. of Lim. SOF ¶¶ 113-14. Most importantly, Franklin himself testified that CCS took longer than Xerox to obtain parts and that CCS experienced difficulty obtaining parts from Xerox. See Franklin Depo. at 7-10, Exh. 10 to Consolidated Appendix — Volume I (Doc. # 775). Accordingly, no reasonable jury could find that the statement was defamatory with regard to CCS or its ability to obtain parts. A jury could find, however, that Xerox defamed CCS when it discussed training with Aetna representatives.- Xerox ignores this statement in its briefing. See Xerox Corporation Reply Memorandum In Support Of Its Motion For Summary Judgment On Plaintiffs State Law Claims For “Defamation and Trade Disparagement" And Tortious Interference With Contract (Doc. # 781) filed June 15, 1999, at 36 (stating that only evidence regarding CCS lack of training was internal memorandum). Viewed in the light most favorable to CCS, the record shows that Xerox asserted that CCS technicians were untrained and therefore incompetent. Although the Franklin testimony of resulting injury from the statement is uncertain, CCS may rely on the theory of slander per se. See Proto v. Bridgeport Herald Corp., 136 Conn. 557, 72 A.2d 820, 826 (1950) (statements charging general incompetence are slanderous per se). “When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiffs reputation. He is required neither to plead nor to prove it.” Torosyan, 662 A.2d at 106. Relying on Nemeth v. Carroll, No. CV910283873, 1998 WL 165036 (Conn.Super.Ct. March 30, 1998), Xerox argues that CCS cannot recover for slander per se because it is an unincorporated entity. In Nemeth, the court noted that defendant’s statements charged plaintiffs with incompetence or lack of integrity and that such statements were slanderous per se. See id. at *3. From that case, although plaintiffs happened to be one corporation and its two owners, Xerox deduces that statements are not slanderous per se unless they refer to business owners rather than to the business itself. The court in Nemeth did not make this distinction and Xerox has not cited authority for the proposition that unincorporated or other business entities may not recover damages for defamation per se. See, e.g., Swengler v. ITT Corp. Electro-Optical Prods. Div., 993 F.2d 1063, 1071 (4th Cir.1993) (corporation may be defamed per se) (Virginia law); Imperial Developers, Inc. v. Seaboard Surety Co., 518 N.W.2d 623, 627 (Minn.Ct.App.1994) (same, Minnesota law). Accordingly, the Court finds that the Xerox statement on training is sufficient to support the CCS defamation claim. The Court overrules the Xerox motion for summary judgment on this issue. CCS next maintains that the Murphy letter to Xerox district employees was defamatory. That communication included a form letter which could go to Xerox customers when a service technician quit Xerox and defected to an ISO. The form letter stated that Xerox would not give ISOs information necessary to service equipment which Xerox introduced with new technology or future know-how. The form letter also stated that Xerox, and to its knowledge Xerox vendors, did not sell parts for the 10 and 50 series copiers, or unique parts for the model 9900, to ISOs. Xerox argues that CCS has not shown that it published this document to a third party, a necessary element of defamation. Under Connecticut law, distribution among Xerox employees is sufficient. See Torosyan, 662 A.2d at 103 (intracorporate communications may constitute “publication” of defamatory statement) (citing 3 Restatement (Second) of Torts § 577(1) and comment (i) (1977)). The internal publication is not actionable in this case, however, because CCS has not shown that the information reached its customers or potential customers. Thus CCS cannot establish any injury from the publication. Moreover, even if Xerox had published the Murphy letter to CCS customers, the record contains no evidence that its statements were false. Xerox did refuse to provide training and parts to ISOs facts which are the primary basis of the CCS antitrust claim. Moreover, the form letter goes on to say that “this is not to say that an independent service organization does not have the ability to obtain an adequate supply of replacement parts from other sources to service Xerox equipment.” In light of this disclaimer, no reasonable jury could find that the Xerox form letter made false statements. See Lyons, 1998 WL 309797, at *4 (“[W]ords must be viewed in the context of the entire statement and the surrounding circumstances”). CCS likewise argues that Xerox defamed it through its script for competing with ISOs (which went to Nugent, the district service manager for Xerox in Hartford) and the notes which Nugent made about CCS and distributed to other Xerox employees. Both the script and the notes emphasized that Xerox service technicians could obtain any part within 24 hours, that ISOs might not have the capital to support all service calls, that Xerox would never install a “stripped” or “replica” part, and that potential customers should consider the training and skill level of alternative service providers. In his notes Nugent stated that Dixon (the CCS founder) was a minority, got state business and was going after government contracts. Again, although Xerox internally published the script and notes to its employees, CCS has failed to show harm which resulted from such publication. Even if Xerox had published the statements to CCS customers or potential customers, the record contains no evidence that the statements were false. Even CCS employees testified that CCS could not build a parts inventory which was adequate to meet its servicing needs. See Stat. of Lim. SOF ¶ 110. They also admitted that they stripped parts from CCS machines and used replica replacement parts made by third parties. See State Claims SOF ¶ 42. Finally, CCS contends that Xerox disparaged it by telling its customers that it serviced copiers by using paper clips and rubber bands. See State Claims SOF ¶ 53. Franklin (at Aetna) allegedly reported this statement to Jackie Dixon (at CCS). Once again, however, the Court must exclude this testimony as hearsay. No evidence suggests that Jackie Dixon had personal knowledge of the comments and CCS has not shown that any exception to the hearsay rule applies. For the above reasons, the Court overrules the Xerox motion for summary judgment on the CCS defamation claim that Xerox told Aetna representatives that CCS technicians would not obtain any training. Otherwise, the Xerox motion is sustained. C. CCS Claim Of Tortious Interference With Contract CCS claims that through its parts policies and disparagement, Xerox tortiously interfered with plaintiffs contract with the State of Connecticut through delays in shipment and disparagement. In order to maintain a cause of action for tortious interference with an existing contract, plaintiff must establish (1) the existence of a contract with the State of Connecticut; (2) knowledge of the contract by Xerox; (3) intent to interfere with the contract by Xerox; and (4) actual loss to CCS because of that conduct. See Solomon v. Aberman, 196 Conn. 359, 493 A.2d 193, 206 (1985); Hart, Nininger & Campbell Assocs., Inc. v. Rogers, 16 Conn. App. 619, 548 A.2d 758, 764 (1988). CCS must prove that Xerox’s conduct was in fact tortious, which may be satisfied by proof of fraud, misrepresentation, intimidation, molestation or malice. See Solomon, 493 A.2d at 197; Croslan v. Housing Auth., 974 F.Supp. 161, 167 (D.Conn.1997). “The burden is on plaintiff to plead and prove at least some improper motive or improper means.” Solomon, 493 A.2d at 197. In 1989, Xerox and CCS submitted the only two bids to service the 10 Series and other Xerox copiers with the State of Connecticut. The State awarded the bid to CCS. CCS alleges that it had to withdraw its bid because it could not acquire copier parts on a timely basis. Xerox argues that for reasons set forth in its motion for summary judgment on the antitrust claims, its parts policies were not illegal or tortious. In its briefing of the CCS antitrust claims, however, Xerox did not discuss the legality of delayed shipment of parts to ISOs. CCS has presented evidence that it lost the State of Connecticut contract because Xerox delayed such shipments. Xerox has not attempted to justify such delays and a jury could reasonably infer that they resulted from malice. See Dowling v. First Federal Bank, No. CV94-0533172 S, 1995 WL 405827, at *1 (Conn.Super.Ct.1995) (malice may include any intentional interference without justification) (citing Restatement (Second) of Torts § 766); see also Dowling, 1995 WL 405827, at *2 (if actor motivated in whole or in part by desire to interfere with other’s contractual relations, the interference is almost certain to be held improper) (quoting Restatement (Second) of Torts § 767, comment (d)); id. § 767, comment (c) (economic pressure may be improper in some circumstances). The Court therefore overrules the motion on the claim of tortious interference with contract based on Xerox parts policies. Xerox argues that CCS has not produced admissible evidence that it disparaged CCS to the State of Connecticut. As explained above, the testimony of Ed Jones regarding such alleged disparagement is hearsay. Even if Xerox had made the alleged statements, CCS has not shown that it suffered any loss resulting therefrom. Accordingly, the Court sustains the Xerox motion for summary judgment on the CCS claim of tortious interference with contract based on disparagement. II. CCS Antitrust Claims CCS advances two antitrust claims, claiming monopolization of both the parts and service markets for high volume copiers. Its first claim, for parts market monopolization, is that Xerox unlawfully monopolized the relevant market for high volume copier parts by prohibiting its controlled subsidiaries, Rank Xerox and Xerox Canada, from selling parts in the United States. See CCS’ First Amended Complaint For Damages (With Jury Trial Demand) And For Injunctive Relief (Doc. # 246) filed March 5, 1996, ¶¶ 86 & 88; Antitrust SOF ¶ 14. The second antitrust claim, a service market monopolization claim, is that Xerox unlawfully monopolized or attempted to monopolize the relevant markets for service of high volume copiers. See Amended Complaint (Doc. # 246) ¶¶ 76-84. CCS specifically alleges that Xerox monopolized or attempted to monopolize these markets by disparaging CCS and by refusing to sell critical replacement parts which CCS needed to repair Xerox copiers under service contracts. See. Antitrust SOF ¶¶ 17, 36. Xerox seeks summary judgment on both antitrust claims. As to the parts market monopolization claim, Xerox argues that CCS cannot prove that it willfully acquired or maintained monopoly power in the relevant market through anticompetitive means, as required by Section 2 of the Sherman Act, “as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” As to the service market monopolization claim, Xerox first argues that as a patentee it could unilaterally exclude others from using its inventions, even if such conduct allowed it to obtain monopolies in relevant markets, and that consequently its refusal to sell patented parts to CCS does not give rise to antitrust liability. Xerox claims that it is entitled to summary judgment because CCS has not disaggregated those damages which are attributable to its lawful refusal to sell patented parts. Xerox also argues that disparagement of CCS does not constitute an antitrust violation and that CCS cannot show injury attributable to other Xerox practices. See Xerox Corporation’s Motion For Summary Judgment On Plaintiffs Antitrust Claims (Doc. # 746) filed April 19,1999. A. Factual Background In briefing the antitrust issues, the parties have incorporated factual material from the briefs on two other motions: the Motion For Summary Judgment On Plaintiffs State Law Claims For “Defamation And Trade Disparagement” And Tortious Interference With Contract (Doc. #740) which Xerox filed April 19, 1999, and Xerox Corporation’s Motion For Summary Judgment On Plaintiffs Antitrust Claims Barred By The Statute Of Limitations (Doc. # 742) filed April 19, 1999. See Antitrust SOF ¶¶ 17, 87; Stat. of Lim. SOF ¶ 127. The Court has therefore considered and relied on such materials in evaluating the pending motion. For purposes of this motion, the Court also incorporates by reference the factual background regarding the CCS state law claims, supra part I. Consequently the following facts are undisputed, deemed admitted or, where disputed, viewed in the light most favorable to plaintiff. 1. Xerox Parts Policies Xerox competed with CCS to service Xerox brand copiers, particularly in Hartford, Connecticut. See Stat. of Lim. SOF ¶ 37. In 1984, Xerox decided that it would sell replacement parts for its “10 series” copiers to end users and authorized service resellers, but not to ISOs. See id. ¶ 3; Antitrust SOF ¶ 4. In January 1987, Xerox extended this policy to its newer 9 series and 50 series copiers. See Stat. of Lim. SOF ¶ 10. CCS alleges that as a result of this policy, its ability to purchase restricted parts from Xerox became the exception rather than the norm. See id. Xerox recognized that ISOs were a competitive threat in the copier service market. In August 1988, a Xerox employee noted in a memorandum that “[sjervice accounts for more than half of Xerox’ revenue” and that • Third party service of Xerox equipment is emerging as a multimillion dollar business. The result is a reduction in Xerox service revenue. D. Kerns and P. Allair[e] [President of Xerox] have expressed concern about third party service and have requested that a strategy be developed to stop the revenue loss. Stat. of Lim. SOF ¶ 28-29. On October 21, 1988, senior partners of Xerox developed an action plan against ISOs. See id. ¶ 73. The plan targeted six major ISOs in five districts, including CCS in the Hartford district. See id. The plan proposed to strengthen Xerox policy on the sale of parts by concentrating on these six ISOs, by requiring end-user verification, use of on-site/physical tracing, and outright refusal to sell replacement parts to ISOs. It also proposed to eliminate sale of all service bulletins and technical documentation to ISOs. Finally, except as to equipment serviced by Xerox certified service engineers, the policy proposed to eliminate time and materials service calls and negate warranties for equipment and parts. See id. On January 11, 1989, Xerox formally adopted its “On-Site End-User Verification Procedure.” See Stat. of Lim. SOF ¶ 80. Pursuant to the policy, Xerox would sell parts only to an “end-user,” which it defined as a person who (1) owned the equipment for which the parts were to be purchased; (2) used the equipment solely for internal purposes; and (3) would use the parts solely to maintain the particular equipment. See id. ¶ 80. In January 1989, Xerox implemented this policy against the six target ISOs including CCS. See id. ¶ 87. The policy applied to the 1065, 1075, 1090, 9900 and 50 series copiers. See id. ¶ 88. The new procedure required the following steps whenever CCS (or the other target ISOs) ordered a replacement part: (1) The Xerox Parts Marketing Center informed the ISO that Xerox required the serial number of each machine for which the part was ordered; that the serial number had to match the machine at the customer location; that a bill of sale no longer constituted the sole vehicle for end-user verification; and that an on-site visit by a Xerox representative might be required. (2) If the ISO refused an on-site visit, the operator informed the ISO that Xerox refused the order. (3) If the ISO did not refuse an on-site visit, the operator provided a Xerox Service Marketing Representative the ISO name, the serial number of the machine for which the part was being ordered, and a list of the parts ordered for each serial number. (4) The Xerox Service Marketing representative gave the required information to the Xerox district office and requested 48-hour turnaround for the on-site verification. If the district office did not perform the on-site visit within 48 hours, Xerox would ship the requested part(s). (5) If the on-site visit confirmed that the equipment was at the ISO site and the ISO was within the definition of an “end-user,” the Xerox Service Marketing Representative told the Parts Marketing Center to ship the order. If the equipment was not at the ISO site or the ISO was not an “end-user,” the Service Marketing Representative told the Parts Marketing department to notify the ISO that the parts would not be shipped because Xerox could not verify “end-user” status. Stat. of Lim. SOF ¶ 90. Xerox appointed two service marketing center employees to supervise the verification program nationwide: Murphy, who headed the national parts verification program, and David Spindel, Xerox manager for service marketing. See id. ¶ 92. In the Hartford district, Xerox also assigned Ward Rogers and Pete Chandry to monitor CCS under the verification policy. See id. ¶¶ 92-93. Xerox employees were directed to contact Rogers or Chandry before any parts were released to CCS. See id. ¶ 93. Nugent, the Xerox district manager, confirmed that whenever CCS ordered a part under this procedure, Xerox verified the purchase order. See id. ¶ 99. On April 17, 1989, CCS ordered seven manuals for 9900 copiers which it was servicing for Cigna and Aetna. Xerox canceled the order, which totaled $770.40. See id. ¶ 122. On April 19, 1989, Xerox sent CCS a letter which explained that Xerox had recently decided not to sell service documentation on high-volume copier products or restricted products. See id. ¶ 123. Effective June 1, 1989, Xerox announced a new verification policy to ensure that ISOs complied with the parts policy. See id. ¶ 16. Xerox stated that it would not knowingly provide ISOs with parts, technical training, technical documentation, or other resources for 10 series copiers. See id. ¶ 124. On June 30, 1989 Xerox described this policy in a letter to an end-user (Cessna Aircraft), as follows: For restricted products, Xerox will not knowingly provide independent service organizations with parts unless the independent service organization is the end-user of the equipment for which the parts have been ordered and such parts will be used to maintain that equipment. Xerox will not deal with an end-user through an independent service organization acting as the user’s agent or intermediary. When an end-user does purchase parts, the “ship to” address must be the same as the “bill to” address unless it is a different address of the same company. Id. ¶ 98. In 1989, Xerox began to strictly enforce its restrictions on CCS parts orders. See id. ¶ 110. Theodore Bethea, who ordered parts for CCS, testified that the restrictions prevented CCS from developing an adequate parts inventory. See id. According to Jackie Dixon, who kept the books and oversaw the dispatch of CCS technicians, CCS had difficulty obtaining parts from 1988 through 1994, causing delays up to one week in copier service. See id. ¶ 114. On March 24, 1992, certain plaintiffs filed a class action which challenged on antitrust grounds the refusal by Xerox to sell parts to ISOs. See R & D Bus. Sys. et al. v. Xerox Corp., No. 2-92-CV-042 (E.D.Tex.); Stat. of Lim. SOF ¶ 18. By 1993, Xerox controlled 93 per cent of the market for service of Xerox high speed copiers. See id. ¶ 141. As late as 1994, Xerox stated that the goal of its- ISO strategy was to capture 100 per cent of the service market on Xerox equipment. See id. ¶ 35. In 1994, pursuant to a settlement of the R & D antitrust litigation, Xerox changed its parts policy. Since that time, it has permitted ISOs to purchase replacement parts and technical documentation for all Xerox copiers. See id. 1119; Antitrust SOF ¶ 7. CCS primarily serviced Xerox model 1065, 1075 and 1090 copiers. Xerox has patents on the fuser/heat rolls for these three copiers and the photoreceptor belts and dicorotrons for the 1075 and 1090 copiers. See Antitrust SOF ¶¶ 25-26. Ninety-nine per cent of the parts for these three copiers, however, are not patented. See id. ¶¶ 55-58. CCS has not established that it suffered injury on account of its inability to obtain any specific part. See id. ¶¶ 28-30. Its expert, Dr. Jeffrey Mackie-Mason, testified that CCS was limited in its ability to grow and compete, but that the restrictions on the sale of Xerox patented parts were not the only factor. See Deposition of Dr. Jeffrey Mackie-Ma-son at 201; attached as Exhibit 14 to Consolidated Appendix — Volume II (Doc. #776) filed June 2, 1999. Dr. Mackie-Mason noted that ISOs like CCS cannot compete in the service business unless they “have assured access to all of the parts necessary to keep” the copiers running. See Antitrust SOF ¶23; Mackie-Mason Report at 21. CCS purchased parts from Xerox only when those parts were unavailable from all other known sources. See CCS Answers To Xerox Corporation’s First Set Of Interrogatories at 5, attached as Exhibit 14 to Xerox. Corporation’s Memorandum In Support Of Motion For Summary Judgment On .Plaintiffs Antitrust Claims (Doc. # 747) filed April 19, 1999. CCS relied on Xerox, however, for the vast majority of its parts. See Stat. of Lim. SOF ¶ 57. For example, “Xerox [was] the sole source, for critical replacement parts for Xerox, [high volume] copiers, including [patented] photoreceptor belts.” Antitrust SOF ¶ 20; Expert Report of Dr. Jeffrey Mackie-Mason at 33, attached as Exhibit 14 to Consolidated Appendix- — Volume II (Doc. # 776) filed June 2, 1999. On at least 55 occasions between February 1989 and October 1990, Cigna ordered patented photoreceptors, fuser rolls and dicorotrons from Xerox so that CCS could service copiers at Cigna offices. See Exhibit 1 to Xerox Corporation’s Reply Memorandum In Support Of Motion For Summary Judgment On Plaintiffs Antitrust Claims (Doc. # 779) filed June 15, 1999. Dr. Mackie-Mason testified that CCS needed some access to Xerox manufactured photo-receptors. See Antitrust SOF If 20. Spin-del, the Xerox manager for service marketing, testified that photoreceptors are critical because they are “among the three or four most frequently replaced parts” and in terms of dollars spent on parts used in servicing high volume copiers and printers, the cost of replacing photoreceptors is “the number one cost.” Id. at 33 n. 101; see Antitrust SOF ¶ 18. For the average life of a model 1075 copier, photoreceptors are the number one cost of servicing, fuser rolls are the number two cost and dicoro-trons are the number five cost. See Tab B to Dixon Declaration, attached as Exhibit 9 to Consolidated Appendix — Volume I (Doc. #775) filed June 2, 1999 (based on replacement rate per million copies multiplied times Xerox cost). Xerox recognized that all sources of photoreceptors could ultimately be traced back to it through foreign Xerox subsidiaries, used Xerox machines, or theft by Xerox employees. See Maekie-Mason Report at 34. Dr. Mackie-Mason opined that none of these sources provided a sufficient supply of photorecep-tors for ISOs. See id. at 34-35. Arnold Schwartz, a CCS employee from September 1992 through March 1994 who was responsible for ordering parts, testified that he had a major problem obtaining photoreceptors from sources other than Xerox, but that other parts were not a major problem. See Antitrust SOF ¶ 19. On several occasions when CCS attempted to order parts in compliance with the Xerox verification procedure, Xerox delayed approval for two or three days, refused to supply the full quantity of parts requested, or refused to ship because CCS had previously ordered identical parts within a certain period. See Stat. of Lim. SOF ¶ 113. In addition, Xerox re-classified several 1090 parts as parts for a newer 5090 machine, and refused to sell them to 1090 users until Xerox approved the release of the part, which caused a two or three day delay. See id. ¶ 116. 2. CCS And Xerox Customers In 1984, CCS began servicing approximately 25 Xerox copiers at Fairfield University. Initially, Fairfield was satisfied with CCS service and technicians. In 1989 and 1990, however, it experienced significant copier “down time” due to delays in shipment of Xerox parts. By 1993, Fair-field had terminated its relationship with CCS because Xerox restricted the sale of parts to CCS. See Stat. of Lim. SOF ¶ 117; State Claims SOF ¶ 58. In 1989, Choate Rosemary Hall changed its service provider from Xerox to CCS. CCS initially had good response time but by 1990 copier “down time” was a serious problem with delays up to one week. Choate Rosemary Hall stopped using CCS because it could not get Xerox parts in a timely manner. See Stat. of Lim. SOF ¶ 118; State Claims SOF ¶ 59. Richard Barnes, the assistant director for copy services at Cigna, testified that CCS prices were 18 per cent lower than Xerox repair costs for the 10 series equipment. In December 1988, CCS began a new Cigna contract in Philadelphia. On April 26, 1990, Xerox changed its verification procedures, forcing Cigna personnel to personally place all orders and prohibiting CCS technicians from placing orders on the Cigna account number. Barnes testified that the Xerox verification procedure caused a delay in emergency orders. See Stat. of Lim. SOF ¶ 119. Jim Blake, a former Xerox and CCS repair technician who worked on the Cigna-Philadelphia contract, testified that as a Xerox technician he kept a truck inventory of readily available parts but that Xerox prevented CCS from keeping an adequate inventory. Blake testified that when he serviced copiers for CCS, Xerox policies caused Cigna copiers to be down three to four times longer than when he worked for Xerox. See id. ¶ 120. In March 1990, the Medical College of Pennsylvania canceled its contract with CCS because CCS could not timely obtain parts from Xerox and because of excessive copier down time. See id. ¶ 136. B. Analysis 1. Parts Market Monopolization Claim CCS alleges that Xerox unlawfully monopolized the market for parts used in high speed copiers. See Amended Complaint (Doc. # 246) ¶ 86. To prevail under Section 2 of the Sherman Act, CCS must prove (1) that Xerox possessed monopoly power in the relevant market; (2) that Xerox willfully acquired or maintained that power through anticompetitive means “as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident;” and (3) that as a result, CCS suffered antitrust injury. Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 480, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (quoting United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966)). For purposes of this motion, Xerox does not deny that it had monopoly power in the parts market. Rather, Xerox argues that CCS has not shown that it obtained or maintained such power through anticompetitive means. The Court agrees. CCS in fact concedes that its expert has not examined whether Xerox acquired or maintained by improper means its market share in the parts market. See Antitrust SOF ¶ 12. CCS apparently argues that Xerox excluded competitors from the parts market by agreements with subsidiaries Rank Xerox and Xerox Canada that they would not supply parts to the United States. Xerox, however, is entitled to arrange its internal affairs so that it does not compete with itself. See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 769-71, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984) (operations of corporate enterprise organized into divisions judged as conduct of single actor for antitrust purposes, coordination between divisions permissible). CCS has not cited any authority, and the Court is not aware of any authority, that such agreements are subject to antitrust scrutiny. CCS also argues that Xerox unlawfully monopolized the parts market by charging supracompetitive prices. High prices alone, however, are insufficient to show that Xerox unlawfully acquired or maintained monopoly power. See Blue Cross & Blue Shield United of Wisc. v. Marshfield Clinic, 65 F.3d 1406, 1412-13 (7th Cir.1995) (natural monopolist that acquired and maintained monopoly absent improper means may charge any price it wants; antitrust laws not price-control statute or public-utility or common-carrier rate-regulation statute), cert. denied, 516 U.S. 1184, 116 S.Ct. 1288, 134 L.Ed.2d 233 (1996). Indeed, high prices generally invite new competitors into the market. See Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 274 n. 12 (2d Cir.1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980). In sum, the CCS evidence is legally insufficient to show that Xerox acquired or maintained its monopoly power in the parts market by improper means. The Court sustains the Xerox motion for summary judgment on this issue. 2. Service Market Monopolization Claim CCS alleges that Xerox monopolized or attempted to monopolize the relevant market for service of Xerox high speed copiers. See Amended Complaint (Doc. # 246) ¶¶ 76-84. In particular, CCS claims that Xerox refused to sell copier parts to ISOs such as CCS, that Xerox defamed CCS, and that it instituted other anticompetitive policies to discourage end-users from contracting with ISOs. a. Xerox Refusal To Sell Patented Parts Based on the Ninth Circuit reasoning in Image Tech. Servs., Inc. v. Eastman Kodak Co. (“Kodak”), 125 F.3d 1195 (9th Cir.1997), cert. denied, 523 U.S. 1094, 118 S.Ct. 1560, 140 L.Ed.2d 792 (1998), CCS claims that Xerox committed an antitrust violation when it refused to sell patented parts directly to ISOs. In Kodak, the Ninth Circuit noted that “ ‘while exclusionary conduct can include a monopolist’s unilateral refusal to license a [patent or] copyright,’ or to sell its patented or copyrighted work, a monopolist’s ‘desire to exclude others from its [protected] work is a presumptively valid business justification for any immediate harm to consumers.’ ” Id. at 1218 (quoting Data General Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1187 (1st Cir.1994)). The Ninth Circuit therefore held that if Kodak asserted that “its desire to profit from its intellectual property rights justifie[d] its conduct,” the jury should “presume that this justification is legitimately procompetitive.” 125 F.3d at 1219. It noted, however, that the presumption could be rebutted by evidence that Kodak’s refusal to deal was not truly based on a desire to protect its intellectual property rights. Id. In reliance on In re Independent Serv. Orgs. Antitrust Litig. (“ISO Antitrust Litigation”), 989 F.Supp. 1131, 1134-44 (D.Kan.1997), a case related to this action, Xerox seeks summary judgment on this claim. Specifically, Xerox argues that it had no legal obligation to sell patented parts directly to ISOs and that as a matter of law its refusal to do so was not an actionable violation of antitrust law. See ISO Antitrust Litig., MDL No. 1021, 1997 WL 450028, at *1-3 (D.Kan. July 17, 1997); ISO Antitrust Litig., 964 F.Supp. 1479, 1487-90 (D.Kan.1997). In ISO Antitrust Litigation, the Honorable Earl E. O’Connor rejected the Ninth Circuit’s reasoning in Kodak and held that where a patent or copyright has been lawfully acquired, subsequent conduct which is permissible under patent or copyright laws cannot give rise to liability under antitrust laws. For the reasons which Judge O’Connor so ably set forth, the Court in this case holds that where a patent has been lawfully acquired, subsequent conduct permissible under the patent laws cannot give rise to liability under the antitrust laws. See Miller Insituform, Inc. v. Insituform of North Am., Inc., 830 F.2d 606, 609 (6th Cir.1987), cert. denied, 484 U.S. 1064, 108 S.Ct. 1023, 98 L.Ed.2d 988 (1988); United States v. Westinghouse Elec. Corp., 648 F.2d 642, 647 (9th Cir.1981); SCM Corp. v. Xerox Corp., 645 F.2d 1195, 1206 (2d Cir.1981), cert. denied, 455 U.S. 1016, 102 S.Ct. 1708, 72 L.Ed.2d 132 (1982); see also Data General, 36 F.3d at 1185-87; 3 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 704.1, at 189 (Supp.1999) (Judge O’Con-nor’s conclusion “seems indisputably correct, and appears to be compelled by the explicit language of the Patent Act”). The Court incorporates by reference the reasoning of Judge O’Connor in ISO Antitrust Litigation, 989 F.Supp. at 1134-44; ISO Antitrust Litig., 1997 WL 450028, at *1-3; and ISO Antitrust Litig., 964 F.Supp. at 1487-90. In particular, the Court agrees that a single patent may implicate multiple antitrust markets. See ISO Antitrust Litig., 989 F.Supp. at 1137 (citing Miller Insituform, 830 F.2d at 609 and Servicetrends, Inc. v. Siemens Med. Sys., Inc., 870 F.Supp. 1042, 1056 (N.D.Ga.1994), amended on reconsideration, 1994 WL 776878 (N.D.Ga. Jun.24, 1994)). A patentee may unilaterally exclude others from using its invention even if such conduct allows the patentee to obtain monopolies in multiple markets. The patentee’s economic success is the reward for its invention. See, e.g., King Instruments Corp. v. Perego, 65 F.3d 941, 950 (Fed.Cir.1995) (Patent Act creates incentive for innovation and upon grant of patent, only limitation on patentee’s economic reward during period of exclusivity should be dictated by marketplace), cert. denied, 517 U.S. 1188, 116 S.Ct. 1675, 134 L.Ed.2d 778 (1996); United States v. Studiengesellschaft Kohle, m.b.H., 670 F.2d 1122, 1129 (D.C.Cir.1981) (patent gives holder unlimited right to exclude others from utilizing its process). Except for the Ninth Circuit decision in Kodak, the Court is not aware of any authority which attempts to restrict the inherent rights embodied in the patent grant when the patent holder achieves too much success. See ISO Antitrust Litig., 989 F.Supp. at 1138; see also SCM, 645 F.2d at 1206 (patent holder can continue to exercise patent’s exclusionary power even after achieving commercial success; to allow imposition of treble damages based on what reviewing court might later consider “too much” success would seriously threaten integrity of patent system). CCS claims that by refusing to sell patented parts, Xerox “leveraged” its monopoly power in the parts market to obtain a monopoly in the service market. The leveraging theory starts with the flawed premise that Xerox may refuse to sell patented parts only in the parts market. Such a premise would negate the express rights which Xerox possesses in the patent grant and, contrary to established law, grant its competitor in the service market the right to decide what antitrust market Xerox may monopolize. See King Instruments, 65 F.3d at 950 (court should not presume to determine how patentee should maximize its reward for investing in innovation). CCS does -not explain as a practical matter how Xerox could exercise its right to exclude competitors in the parts market while simultaneously selling patented parts to competitors in the service market. Also, the rule which CCS proposes would significantly reduce the incentives otherwise provided by the Patent Act. See, e.g., Chisholm-Ryder Co., Inc. v. Mecca Bros., Inc., 217 U.S.P.Q. 1322, 1338, 1982 WL 1950 (W.D.N.Y.1982), aff'd, 746 F.2d 1489 (Fed.Cir.1984) (“One would have to be suffering from ‘unthinking monopolo-phobia’ to deny [a patent holder] the right, given to it as the quid pro quo — its right to exclude in exchange for its disclosure to the public of these inventions — to monopolize the field covered by its patents to the exclusion of all others.”); W.L. Gore & Assocs., Inc. v. Carlisle Corp., 529 F.2d 614, 623 (3d Cir.1976) (right to refuse to license is essence of patent holder’s right; patent law rewards invention disclosure by grant of limited monopoly in exploitation of the invention). The Court’s holding on this issue is supported in part by the recent decision in Intergraph Corp. v. Intel Corp., 195 F.3d 1346 (Fed.Cir.1999). There, the Federal Circuit stated that generally, unilateral conduct which is permitted under patent and copyright laws is not subject to antitrust scrutiny. See id. at 1362-63. It noted: [T]he antitrust laws do not negate the patentee’s right to exclude others from patent property.... In Image Technical Services the Ninth Circuit reported that it had found “no reported case in which a court had imposed antitrust liability for a unilateral refusal to sell or license a patent or copyright.” 125 F.3d at 1216. Nor have we. In accord is the joint statement of the United States Department of Justice and Federal Trade Comm’n, Antitrust Guidelines for the Licensing of Intellectual Property 4 (1995) that market power does not “impose on the intellectual property owner an obligation to license the use of that property to others.” Id. at 4. See 35 U.S.C. § 271(d)(4) (“No patent owner otherwise entitled to relief for infringement or contributory infringement of a patent shall be denied relief or deemed guilty of misuse or illegal extension of the patent right by reason of his having done one or more of the following: ... (4) refused to license or use any rights to the patent”). See also, e.g., Miller Insituform, Inc. v. Insituform of North Am., Inc., 830 F.2d 606, 609 (6th Cir.1987) (“A patent holder who lawfully acquires a patent cannot be held liable under section 2 of the Sherman Act for maintaining the [market] power he lawfully acquired by refusing to license the patent to others.”); United States v. Westinghouse Electric Corp., 648 F.2d 642, 647-48 (9th Cir.1981) (patent holder has the “untrammeled” right to license or not, exclusively or otherwise); SCM Corp. v. Xerox Corp., 645 F.2d 1195, 1206-07 (2d Cir.1981). Intergraph, 195 F.3d at 1362-63. Moreover, although it did not discuss the issue in detail, the Federal Circuit recognized the difference between the scope of a patent grant and the scope of the relevant antitrust markets' — -a key distinction which Judge O’Connor had previously noted. See id. at 1355 (“patent grant is a legal right to exclude, not a commercial product in a competitive market”); ISO Antitrust Litig., 989 F.Supp. at 1134-39. Finally, in Intergraph, the Federal Circuit noted: The antitrust law has consistently recognized that a producer’s advantageous or dominant market position based on superiority of a commercial product and ensuing market demand is not the illegal use of monopoly power prohibited by the Sherman Act. In Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 596 n. 19, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985) the Court explained that “[t]he offense of monopoly under § 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident,” quoting United States v. Grinnell Corp., 384 U.S. 563, 570-571, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). Product superiority and the ensuing market position, flowing from a company’s research, talents, commercial efforts, and financial commitments, do not convert the successful enterprise into an illegal monopolist under the Sherman Act. Id. at 1353-54; see id. at 1360 (integrated business does not offend Sherman Act by drawing on competitive advantages of efficiency, experience, or reduced transaction costs, in entering new fields or downstream markets; such advantages are not uses of monopoly power). Likewise, Judge O’Connor previously held that Xerox could lawfully exercise its power to exclude competitors in the service market from using its patented products because such power arises from its patents, i.e. its technical innovation and financial commitments. See ISO Antitrust Litig., 989 F.Supp. at 1134-39. For these reasons, the Court concludes that Xerox did not commit an antitrust violation when it unilaterally refused to sell patented parts to CCS. b. Disaggregation Of Damages Xerox argues that it is entitled to summary judgment on the service market monopolization claim because CCS has not disaggregated those damages which are attributable to a lawful refusal to sell patented parts. CCS has the initial burden to show that its injuries are due to unlawful anticompetitive conduct. See Amerinet, 972 F.2d at 1494; MCI Communications Corp. v. American Tel. & Tel. Co., 708 F.2d 1081, 1161 (7th Cir.), cert. denied, 464 U.S. 891, 104 S.Ct. 234, 78 L.Ed.2d 226 (1983); 15 U.S.C. § 15. This burden includes the duty to disaggregate damages which are attributable to lawful conduct such as a refusal to sell patented parts. After plaintiff has met this initial burden, it may invoke a more lenient standard of proof for the precise amount of damages. See Amerinet, 972 F.2d at 1494. The Supreme Court has explained: [T]here is a clear distinction between the measure of the proof necessary to establish the fact that petitioner had sustained some damage, and the measure of proof necessary to enable the jury to fix the amount. The rule which precludes recovery of uncertain damages applies to such as are not the certain result of the wrong, not to those damages which are definitely attributable to the wrong and only uncertain in respect of their amount. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 562, 51 S.Ct. 248, 75 L.Ed. 544 (1931); see MCI, 708 F.2d at 1161 (after causation established, amount of damages determined by just and reasonable estimate). If plaintiff attributes all of its losses to illegal acts, despite other significant factors, “the evidence does not permit a jury to make a reasonable and principled estimate of the amount of damage.” MCI, 708 F.2d at 1162 (citing Bigelow v. RKO Radio Pictures, 327 U.S. 251, 264, 66 S.Ct. 574, 90 L.Ed. 652 (1946)); see also National Ass’n of Review Appraisers & Mortg. Underwriters, Inc. v. Appraisal Found., 64 F.3d 1130, 1135 (8th Cir.1995) (plaintiff may not recover losses due to factors other than defendant’s anticompetitive violations) (citing Amerinet, 972 F.2d at 1494), cert. denied, 517 U.S. 1189, 116 S.Ct. 1676, 134 L.Ed.2d 779 (1996). To meet its burden to disaggregate, plaintiff must provide the fact finder a reasonable basis upon which to estimate the amount of losses caused by lawful factors. See United States Football League v. National Football League, 842 F.2d 1335, 1378-79 (2d Cir.1988); MCI, 708 F.2d at 1161. Xerox correctly notes that CCS has failed to offer any facts from which a jury might estimate the amount of losses due to its lawful refusal to sell patented parts. CCS responds that as the wrongdoer, Xerox must bear the risk of any uncertainty which its wrongdoing has created. See Response by Plaintiff Creative Copier Service To Xerox Motion For Summary Judgment On Plaintiff’s Antitrust Claims (Doc. # 772) filed June 2, 1999 at 59-61 (citing Bigelow, 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652). This principle applies only after plaintiff has offered proof of injury to its business and profits due to wrongful conduct by defendant which is not attributable to other causes. See id. at 264, 66 S.Ct. 574; United States Football League, 842 F.2d at 1378-79; MCI, 708 F.2d at 1161. Moreover, CCS has not shown that conduct by Xerox made it impossible to disaggregate damages. CCS also argues that an antitrust violation need only be a substantial factor (not the sole cause) of its injury, but it has not shown that any antitrust violation by Xerox has been a substantial cause of its injury. CCS alleges that Xerox caused injury by refusing to sell both patented and unpatented parts, but it never attempts to distinguish injury caused by a lawful refusal to sell patented parts and injury caused by an un lawful refusal to sell un patented parts. See Antitrust SOF ¶¶ 28-30; Mackie-Mason Depo. at 172 (“I don’t know whether they were patented or unpatented parts that faile