Full opinion text
Memorandum of Opinion and Preliminary Injunction EDWIN L. NELSON, District Judge. I. Background. The court has for consideration the motion and the renewed motion of plaintiff In-tergraph Corporation for a preliminary injunction. The motions essentially seek to prevent defendant Intel Corporation from refusing to engage in future business with the plaintiff in the same or similar manner that it has done from approximately 1993 until the present dispute arose between the parties in 1997. The amended complaint is in twenty-three counts and includes, inter alia, claims under state law theories, .of fraud, fraudulent suppression, negligent failure to warn, negligence,, wantonness and willfulness, breach of contract, intentional interference with business relationships, breach of express warranty, breach of implied warranty of fitness for a particular purpose, and violation of the Alabama Trade Secrets Act. The complaint contains three claims for patent infringement and a single count charging anti-trust violations under 15 U.S.C. §§ 1 and 2. Jurisdiction in this court is founded upon 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1332 (diversity of citizenship), 28 U.S.C. § 1338(a) and (b) (patent infringement and unfair competition), and 28 U.S.C. § 1367(a) (supplemental jurisdiction). On Monday, December 8, 1997, the court held a hearing (the “Hearing”) on Inter-graph’s verified motion to enjoin Intel from cutting off or delaying its supply of computer chips and product information (the “Verified Motion”), which was filed in open court on November 21,1997 (Document # 16). At the Hearing, Intergraph presented the live testimony of Wade Patterson, currently the President of Intergraph’s Computer Hardware Division (Tr. 51), who testified that he holds a B.S. degree in Electrical Engineering (Tr. 207) and that he has previously worked as Intergraph’s Vice-President of Engineering and its Executive Manager for Systems Development (Tr. 101-02). In-tergraph also submitted and served in open court during the Hearing Mr. Patterson’s supplemental affidavit on which Intel was allowed to cross-examine him. (Intergraph Ex. -I; Tr. 236-41). In support of its motion for a preliminary injunction, Intergraph also filed the affidavits of Allen Blaxton, Bryan Floyd, Mike Ellard, James Meadlock, Terry Phillips, and Wade Patterson. (Document #29). Prior to the Hearing, on December 3,1997, Intel filed and served on Intergraph the affidavits of Keith Johnson and Ron Epstein (Documents 26 and 27). At the Hearing, Intel presented no live testimony from its own employees, but it called as its own witness, James Meadlock, Chairman and CEO of Intergraph, who was voluntarily present in the courtroom. (Tr. 241). Intel also submitted the affidavit of Anand Chandrasekher during the Hearing. (Tr. 122; Intel Ex. 2). Then on December 10, 1997, with permission of the court, Intel supplemented its hearing presentation with the affidavit of Edwin Bauernfreund under seal. Intergraph responded with the affidavits of Sanford C. Morris, Jr., Kirk Totten, and Allen Blaxton and the Second Supplemental Affidavit of Wade Patterson on December 12, 1997. Also, the parties have each submitted proposed findings of fact and conclusions of law for the court’s consideration, and those submissions have been helpful. Generally, under Fed.R.Civ.P. 65, in order to prevail on its motion for a preliminary injunction, Intergraph must prove: (1) it has a substantial likelihood of ultimate success on the merits of one or more of its substantive claims; (2) there is a substantial threat that it will suffer irreparable injury in the absence of preliminary relief; (3) the likely injury to itself is greater than that likely to be suffered by the defendant; and (4) entry of the preliminary injunction would not disserve the public interest. Lucero v. Operation Rescue of Birmingham, 954 F.2d 624, 627 (11th Cir.1992), reh’g denied, 961 F.2d 224 (1992). Where, as here, the plaintiff advances antitrust claims, preliminary relief is specifically authorized by 15 U.S.C. § 26. Upon due consideration, the plaintiffs motion for a preliminary injunction will be granted. II. Findings of Facts. Based upon the affidavits filed by the parties, the testimony at the Hearing and the exhibits received at the Hearing, the court makes the following findings of fact. A. Intel’s Position in the Microprocessor Market. Defendant Intel Corporation is the world’s largest designer, manufacturer, and supplier of high-performance microprocessors, frequently described as the “brains” of a computer because they control the central processing of data in personal computers. (Intergraph Ex. F). Intel also designs, manufactures, and supplies: (1) “chipsets”- which, in conjunction with the CPUs, perform essential logic functions surrounding the CPU in computers based on Intel architecture processors; (Id); (2) motherboards which combine Intel microprocessors and “chipsets” to form the basic subsystem of a PC or server; (Id.); and (3) graphics subsystems to provide graphic functions for computers and workstations. (Patterson Supp. Aff. ¶¶ 7-9). Most of the entire world’s personal computers today are powered by Intel designed and manufactured microprocessors of the “x86” variety, originally created by Intel. See Competitive Impact Statement and Complaint in United States v. Microsoft, 59 Federal Reporter 42845, August 14, 1994. In 1996, Intel received eighty-eight percent of the total revenue derived from microprocessors sold for use in desktop computers, laptops, servers, and workstations, or $14.6 billion out of a total of $16.6 billion. Within the “x86” market, Intel had a market share of eighty-five percent. (Patterson Supp. Aff. ¶ 7). See December 22,1997, Business Week article. In its fiscal year 1996, Intel had total revenues of $20.8 billion and net income before taxes of $7.9 billion — a profit percentage of approximately thirty-eight percent. It has consistently made very high profits. (1996 Intel Annual Report) Intel, over a period of almost twenty years, has continued to develop the “x86” line of microprocessors, creating ever faster and more powerful units. Its current generation of the “x86” microprocessors, the Pentium series, is an extraordinarily complex product, which is difficult and expensive to design and manufacture. According to Intel, the Pentium Pro processor has 5.5 million transistors and can execute 300 million instructions per second. More than 200 major steps are required to produce the Pentium Pro. (1996 Intel Annual Report). Intel’s dominance in the market for personal computer CPUs is reflected in its name recognition among the computer buying public, the great majority of whom insist upon having a genuine Intel CPU in their computers. The “Intel Inside” brand promotion has helped to create a remarkable demand for the Intel product. More than 1,300 licensees worldwide participate in the “Intel Inside” program with each computer bearing a distinctive Intel logo. In 1996, the journal Financial World designated the Intel brand as the tenth most valuable brand in the world. (1996 Intel Annual Report). The Intel microprocessors are compatible with a number of computer operating systems, but they are used primarily with operating systems created and supplied by Microsoft Corporation. In other litigation, the United States Department of Justice has contended for a number of years that Microsoft itself has a monopoly on operating systems for personal computers. See United States v. Microsoft, supra. Intergraph uses Microsoft’s Windows NT, a thirty-two bit operating system powerful enough to run both business and technical applications for all Intergraph workstations and other products. (Tr. 76-76). Until the development of its latest generation of Pentium II microprocessors, Intel used an “open architecture,” which was available generally to all participants in the industry. For example, other manufacturers such as Cyrix, AMD, and IBM designed, developed and marketed microprocessors that were more or less compatible with the earlier Intel CPUs. Beginning with the Pentium II, however, Intel changed to a closed or proprietary architecture, which included the use of a new “bus,” the P6. This means that the Pentium II and planned Intel microprocessors, the Deschutes and the Merced, are not and will not be compatible with other CPUs. (Tr. 64-66). Moreover, the latest Intel CPUs are technologically superior, at least in terms of their ability to interact with and handle the advanced graphics functions required by high-end workstations, to all other so-called Intel compatible microprocessors. (Tr. 70-71). Computers manufactured by Original Equipment Manufacturers (“OEMs”) to use Intel microprocessors must be specifically designed and manufactured to meet the precise physical and technical requirements of the Intel architecture. For example, Intel chips, before the Pentium II, were mounted on flat sockets, the P7 Bus, that physically accepted similar chips from other manufacturers. (Plaintiff’s Exhs. C and D). The Pentium II is mounted on its edge in the P6 Bus, which, as of the date of the Hearing, accepts microprocessors from no other manufacturer. (Plaintiffs Exhs. A and B). These physical differences may be only the most obvious ones, vis-a-vis other Intel CPUs. Intel has purposely changed its CPU architecture by using proprietary sockets and otherwise, converting from the previously “open architecture” to a new “closed architecture.” (Tr. 85). This “closed architecture,” for practical purposes, allows Intel, by exercising its intellectual property rights in its “closed architecture,” to wield absolute power over who will and who will not be allowed to participate in that part of the high-end computer industry that is based upon the “x86” microprocessor. Inasmuch as it requires two or more years.and millions of dollars to design and develop a mother board and graphics subsystem to accept and take advantage of a CPU such as the Pentium II or any possible alternative, (Tr. 69) OEMs, such as Intergraph, who rely entirely on Intel for their supply of microprocessors and chip sets have become technologically and financially locked in to the Intel CPU, its associated chip sets, and the P6 Bus, and they have no feasible alternative to it. (Patterson Supp. Aff. ¶ 14). The evidence makes clear that Intel has 100 percent of the market for the high-end CPUs that are used in “x86” based computer workstations, approximately 60 percent of the total workstation market. (Tr. 262). In addition to requiring an adequate supply of the fastest and most powerful Intel microprocessors, OEMs, such as Intergraph, are capable of competing in the marketplace only if they also have access to: (1) Intel’s advance confidential technical information, which is necessary to develop new products and to service existing products; (2) advance samples of Intel’s development chips, which are needed by Intergraph to develop its own next-generation products using those chips (hereinafter referred to as “Chips Samples”); and (3) early releases of Intel chips, related products, and related technical information, which is necessary for Intergraph to test and produce its products (hereinafter referred to as “Early Release Chips”). The evidence suggests, and the court finds for present purposes, that, because of Intel’s dominant position in the microprocessor market, no other computer industry participant can realistically be expected to expend the enormous sums required to develop and produce a product that could compete with the Pentium II and its anticipated successors. (Tr. 160-61). Moreover, it would not be possible for any potential Intel competitor to create, a competitive product sufficiently soon to provide a viable alternative to which Inter-graph could switch in the immediate future. In sum, the court finds if Intergraph is to compete in the high-end work station market for the foreseeable future, it has no alternative but to do so using Intel’s latest and most powerful microprocessors and associated chip sets, and in order to use those microprocessors, it must have the cooperation of Intel, whether given willingly or by compulsion. In the words of Mr. Patterson, Intergraph is both “technologically and economically ‘locked in’ ” to its relationship with Intel. (First Patterson Aff. ¶ 19). Unless it is able to secure a continued supply of Intel chips, advance chip samples, essential advance technical information, support and advice, Inter-graph cannot continue to design, manufacture and sell competitive workstations. (Id.) Moreover, if Intergraph is not allowed to participate on a competitive basis in that market, it will suffer enormous losses of revenue, adversely impacting on the employment opportunities of its 8,500 employees. Finally, Intergraph’s reputation for technical excellence and its business goodwill in the workstation market and the computer industry will suffer long-term injury. These are harms that, in the opinion of the court, cannot be recompensed merely by the payment of money because jobs, reputation, and good will, once lost, may never be regained. B. Intergraph and the Workstation Market. Intergraph Corporation was begun as M & S Computing, Inc. in 1969 with three employees for the purpose of providing computer assisted guidance systems to the United States military services, but it soon changed direction toward the development of advanced computer-aided designing and drafting systems, which, as noted above, became known as “workstations.” (Meadlock Aff. ¶3; Tr. 71). Intergraph’s first graphical interface computer was built and sold in 1972. Those early “workstations” were based upon computers Intergraph purchased from Digital Equipment Corporation (“DEC”), which were then integrated with its own automated design software. (Meadlock Aff. ¶ 4). Intergraph developed a “Graphics Processor” in 1982, a component that allowed computer modeling and shading for very high quality images. (Meadlock Aff. ¶ 5). Beginning in 1986, Intergraph workstations were based upon a then advanced high powered microprocessor called the “Clipper,” which was then the property of Fairchild Semiconductor. Upon learning that Fair-child was to be sold, Intergraph purchased Fairchild’s Advanced Processor Division (“APD”) in 1987, thereby acquiring ownership of the Clipper technology and lessening its own reliance on outside sources for its supply of microprocessors. This purchase also enabled Intergraph to design and build future products more rapidly. Until 1993, Intergraph used the Clipper microprocessor in all its workstations. (Meadlock Aff. ¶ 7). In the early 1990s, after the computer industry began to shift from the Microsoft DOS to the Microsoft Windows operating system, Intergraph learned that Microsoft planned to create a very high-end operating system to be called Windows NT, and Inter-graph became convinced that this new operating system would likely become the dominant operating system for future high-end workstations. Intergraph further concluded that its own future lay with the development of a Windows NT based workstation product to supplement the Clipper (RISC microprocessor) and Unix based operating system (Tr. 76) workstations it was then producing. In 1992, Intel was, and had been for years, the predominant designer and producer of microprocessors for the “open architecture” PC market, that segment of the market previously called the IBM compatible market. Based on Intel’s assurances and representations that Intel’s CPUs had the necessary computing power and speed for Intergraph’s high-end workstations and that Intel would supply its CPUs to Intergraph on fair and reasonable teims, in late 1992, Intergraph began a major and expensive two-year development and engineering effort to convert its products from incorporating its own Clipper microprocessor to incorporating the Intel microprocessors and to convert its technical software applications to the Microsoft Windows NT operating system. (Meadlock Aff. ¶ 9; Tr. 78-79). By the end of 1993, Intergraph had discontinued further development of its own Clipper microprocessor, eliminating the Clipper as a competitor of Intel and other producers of microprocessors in the high-end work station market. (Tr. 79 — 80). Intergraph has, since 1992, invested enormous financial and engineering resources to design and build its products and systems based on Intel’s CPUs. As noted earlier, Intergraph cannot for the foreseeable future either economically or technically switch to any other CPU. (Tr. 79-80). As a result of the migration to Intel’s CPUs, Intergraph is now technologically and economically “locked-in” to Intel’s CPUs for at least the next two to three years. (Patterson Supp. Aff. ¶ 14). The court concludes that, before it was induced by the representations of Intel CEO Andy Grove to abandon its own Clipper technology, Intergraph competed successfully in the relevant market for high-end microprocessors. Because of the conduct of Intel, inducing the plaintiff to abandon the Clipper, Intergraph has been eliminated as a competitor in the high-end microprocessor market and is now locked-in to Intel as its sole source of CPUs and relevant technical data. Moreover, the cessation of further development of the Clipper technology may well have diminished further innovation and competition generally because no further efforts were made to improve or advance the Clipper CPU technology. C. The Relationship Between Inter-graph and Intel. In 1993, when Intergraph and Intel began their business relationship, it was the practice of Intel to freely share with its OEM customers technical information about its products. (Patterson Aff. ¶ 7; Tr. 83 — 84). As Intel moved to a closed architecture and Intergraph became dependent upon the use of Intel microprocessors, Intel began insisting that Intergraph and its other customers sign comprehensive Non-disclosure Agree-mente (“NDAs”) and Restricted Use Nondisclosure Agreements (“RUNDAs”). (Meadlock Aff. ¶ 11; Tr. 84-85). NDAs were often accompanied by Confidential Information Transmittal Records (“CITRs”). The CITRs are executed by both parties and identify the specific Intel Confidential Information to be disclosed. The CITRs expressly incorporate the terms of the respective NDA. (Johnson Aff. ¶ 6; Patterson Aff. ¶¶ 8-10; Johnson Aff. Exh. 2.) These Agreements established procedures for exchanging product information that previously had been freely exchanged. (Patterson Aff. ¶ 7; Tr. 84-85). The NDAs, CITRs and RUNDAs were forms prepared by Intel to which it allowed no changes. (Patterson Aff. ¶ 9-10; Tr. 128-29; Johnson Aff. 16). The parties signed NDAs, which contain standard provisions including: (1) one provision that expressly negates any obligation on the part of either party to supply confidential information; (2) a second provision that establishes that the NDA does not create a business relationship, joint venture, partnership or other form of business association, between the parties and does not create an obligation on the part of Intel to sell products to Intergraph; and (3) a third provision that states that the agreement can be terminated at any time without cause. (Johnson Aff. Exh. 1.) Other documents signed by the parties also provide that they create no obligations to supply products or confidential information and to engage in future business activities. Information supplied by Intel under the NDAs, RUNDAs, and CITRs contained the necessary technical data to provide OEM engineers and designers with the ability to develop their own products. This data would not permit any third party to duplicate Intel’s own technology. (Tr. 85,185-86). There is no evidence that Intergraph has misused or mishandled Intel’s confidential data in any way at all. The record is not to the contrary. (Patterson Aff. ¶ 11-12). In 1995, Intergraph successfully participated as a “Validation Partner” in the development and release of Intel’s Pentium Pro product, (Johnson Aff. ¶ 12), prompting Intel to feature Intergraph’s workstations in the “roll out” of the Pentium Pro chip and in its 1995 Annual Report. In 1997, some OEM customers of Intel made inquiries about whether Intel would indemnify them with regard to claims of patent infringement they had received from Intergraph. (Epstein Aff. ¶ 4; Epstein Aff. Exh. 1). In response, Intel’s Senior Licensing Counsel contacted Intergraph about the possibility of negotiating a cross-license arrangement so that Intel and Intergraph each would then have access to certain patent rights held by the other. (Epstein Aff. ¶ 5; Epstein Aff. Exh. 2). Those negotiations were unsuccessful, and eventually, at some point that is not clear, Intel changed the text of the NDAs it presented to Intergraph for execution in connection with the development of future projects. (Tr. 88-89). Specifically, in those proposed NDAs, Intel inserted a new provision that would have given Intel a license to use all of Intergraph’s patented technology without cost. (Patterson Aff. ¶ 12; Tr. 154). When Intergraph asked for the provision, which would license its patented technology to Intel, to be removed, Intel withdrew the proposed NDAs and refused to allow Intergraph to participate in the new programs or to provide any of its confidential information to Intergraph, which was necessary for Inter-graph to continue product development. (Tr. 89,133). On March 28, 1997, responding to Inter-graph’s expressed concerns about the relationship between Intel and itself, the defendant’s Huntsville, Alabama-based Field Representative, Keith Johnson, provided Allen Braxton, a purchasing agent for Inter-graph, a letter in which he confirmed that Intel intended to: (1) treat Intergraph “as a strategic customer in current and future programs;” (2) support Intergraph with “product supply, design, quality, manufacturing and marketing;” and (3) provide In-tergraph “the benefit of additional price reductions.” (Johnson Aff. Ex. E; Blaxton .Aff. ¶ 3-4). In his March 28, 1997, letter Mr. Johnson specifically includes the “Des-chutes” and “Merced” programs under development by Intel. (Id.). Additionally, the undisputed evidence shows that, at the time of the letter, Intel already had projected “current and future programs” through the year 1999. (Patterson Second Supp. Aff. Ex. C) (filed under seal). Notwithstanding the representations made by Mr. Johnson on behalf of Intel in the March 28, 1997, letter, Intel continued to propose a cross-license agreement whereby Intergraph would be required to surrender its patent rights in the Clipper related technology. (Tr. 155). The court is not persuaded by Intel’s suggestion that its offer to license some of its patents to Intergraph created a quid pro quo, a tit-for-tat. (Id.). As Mr. Patterson observed, Intergraph no longer has need of the Intel patents because it is no longer in the business of producing microprocessors. (Tr. 155-159). On August 13,1997, after Intel was unable to secure the Intergraph patent rights on terms it considered acceptable, it summarily and unilaterally canceled all Intergraph’s outstanding NDAs and RUNDAs and demanded the return of all confidential information it had provided to Intergraph. (Veri-fíed Motion Ex. A). Apparently, Intel backed away from its decision to terminate Intergraph’s NDAs at that time, because, immediately after Intergraph filed this action, Intel wrote to Intergraph terminating NDAs and demanding the .return of all confidential information. D. Intel’s Conduct with Respect to In-tergraph. 1. Intel’s Product Distribution System. Mr. Patterson testified that Intergraph is unable to obtain Production Chips through distributors unless Intergraph has previously obtained an allocation of such chips from Intel. (Tr. 170-73). Mr. Patterson testified that Intergraph has attempted to purchase Production Chips through a distributor and has been informed that such a purchase is not possible unless advance approval is received by the distributor from Ihtel. (Tr. 173-74). In response to the testimony of Mr. Patterson, Intel submitted the affidavit of Edwin Bauernfreund, who testified that Intel’s sales to distributors are based on allotments to the distributors themselves, rather than allotments to the ultimate purchaser. (Bauernfreund Aff. ¶3); Mr. Bauernfreund further testified that Intel’s microprocessors are generally available through distributors without allocation figures or specific approval from Intel. (Bauernfreund Aff. if 4). Finally, Mr. Bauernfreund stated that there currently is a supply of a particular chip, the Intel Pentium II 300 MHz, through distributors, which is adequate to supply Inter-graph’s needs of approximately 10-20,000 units per quarter. (Id.). Intergraph responded to the Bauern-freund affidavit with an affidavit of one of its own employees, Sanford C. Morris, Jr., who formerly was employed by one of Intel’s distributors. Mr. Morris stated that Intel’s allotments to distributors are directly and specifically related to the ultimate purchaser of the chips, and that distributors lack sufficient inventory to fill customer orders, especially larger orders such as those placed by Intergraph, without a specific allotment and approval from Intel. (Morris Aff. ¶ 3). Kirk Totten, an Intergraph employee who previously was employed by a contract computer manufacturer, testified that Intel sold chips to the contractor for resale to a third party only through specific allotments that identified the ultimate purchaser of Intel’s chips. (Totten Aff. ¶ 7). Mr. Totten further testified that, since November, Intergraph has been unable to fill through distributors an order for approximately 5,000 Pentium II 300 MHz chips. (Id. ¶8). Allen Blaxton testified that Intergraph has been unable to purchase Intel chips from distributors, which have informed Intergraph that they require a specific allocation in order to sell Intel chips to Intergraph. (Blaxton Supp. Aff. ¶ 3-4). Mr. Bauernfreund goes on to state that, without an allocation, the new Pentium II processor, the 333 MHz version, will not be available through distributors until 30-90 days after introduction by Intel. (Bauern-freund Aff. ¶8). This testimony confirms Intergraph’s position that purchasing through distributors is an inadequate means by which it can procure the Production Chips necessary for its manufacturing needs. A 30-90 day delay was described by Mr. Patterson as extremely injurious to Intergraph efforts to maintain a competitive presence in the high-end workstation market. (Patterson Aff. ¶ 16). The court accepts Mr. Bauernfreund’s testimony that Intel does not explicitly “tell” its distributors to whom they may sell Intel Products. (Bauernfreund Aff. ¶ 4). This, testimony, however, begs the ultimate question of whether Intel Product would be available to Intergraph without an allocation from Intel. On this issue, even Mr. Bauernfreund admitted that Intergraph would fall 30-90 days behind its competitors. Mr. Morris confirms that such delays occur due to inventory shortages. (Morris Aff. ¶ 3). At least as important, advance samples of Intel microprocessors, which are necessary for Inter-graph to have its products .ready for deployment at the same time as its competitors, are available only from Intel. (Blaxton Supp. Aff. ¶5). The delay conceded by Mr. Bauernfreund would prevent Intergraph from maintaining a competitive presence in the high-end workstation market. Though Mr. Bauern-freund stated generally that there was an “adequate supply” of Intel’s previously released 300 MHz Pentium II available (Bau-ernfreund Aff. ¶ 7), the available evidence is to the contrary. In late November Inter-graph sought to purchase 5,000 such microprocessors for delivery in February and was told repeatedly that this small quantity was not available. (Totten Aff. ¶ 8). 2. Intel, Intergraph and Essential Facilities. Before mid-1996, Intel and Intergraph enjoyed a mutually beneficial business relationship. As a result of this relationship, Intel regularly provided Intergraph with CPUs, technical information, and support essential for Intergraph to be competitive in its chosen field. Intel regularly supplied Intergraph with early samples of its CPUs for testing and development, Often within weeks of their first production. (Phillips Aff. ¶ 4-5). Intel provided motherboard design assistance, and it reviewed Intergraph’s design schematics to ensure that any “bugs” or defects in the Intel CPU or chips were avoided. Id. Intel provided detailed information on its technology and future plans, and it solicited Intergraph information and technology for incorporation into future Intel designs. Id. Intel provided advance information on its own design and development efforts, and it supported Inter-graph’s development efforts. Id. The court finds that essential to Inter-graph’s competitive survival is for .it to have access to Intel’s CPUs, Advance Chips Samples, and advance technical and design assistance and information as quickly as possible and no later than Intergraph’s, competitors. (Meadloek Aff. ¶¶ 13-16; Patterson Aff. ¶¶ 13-17). The court also finds that Intel has no legitimate business purpose in refusing to deal with Intergraph in accordance with the previously established business relationship between the parties, especially in view of Intel’s exclusive control of the CPUs used by Intergraph and the complete lack of feasible alternatives available to Intergraph. The patent dispute that arose between the parties could and should be resolved without linking it to the supply of products and information that are essential to Intergraph’s business survival. The court finds that the Advance Chips Samples and advance design and technical information are essential products and information necessary for Intergraph to compete in its markets. Denial of these products and information will seriously impair Inter-graph’s competitive ability, thereby severely injuring Intergraph as a competitor and injuring competition generally. 3. The Graphics Subsystem Market. An essential component of Intergraph’s business is the design and production of graphics subsystems. These are critical systems for high-end workstations, which provide high performance 2D or 3D graphics capabilities essential to the work of design and graphics engineers, as well as graphics artists. Intergraph designs its own graphics cards and motherboards to create its high performance graphics subsystems. (Patterson Supp. Aff. ¶¶ 3-6). Intel has entered the graphics subsystem market (Patterson Second Supp. Aff. Ex. C (filed under seal)) and is now a direct competitor of Intergraph in that market. Intel has recently signed an agreement to purchase Chips & Technology Company, an experienced and successful producer of graphics chips and chip sets. (Patterson Supp. Aff. ¶ 7). The proposed acquisition of Chips & Technology is currently being reviewed by federal antitrust regulators. Intel has also entered into a joint development relationship to form a company called Real 3D, Inc. to create 3D graphics technology. Intel has already incorporated graphics technology, called MMX, into its own CPUs. (Tr. 67-68; Patterson Supp. Aff. ¶ 7). Intel has announced that its motherboard graphics subsystem will be available in early 1998. See December 12, 1997, Article “Intel’s Graphics Chip Due Soon;” (Tr. 67-68). By withholding advance CPU samples and essential design and technical information from Inter-graph, Intel restrains Intergraph’s ability to compete in the graphics subsystem market and may be using its monopoly power in the “x86” CPU market to obtain a monopoly in the graphics subsystem market. The motherboard and graphics subsystems markets are fast-evolving, high technology markets. Users of high-end workstations such as those produced by Intergraph and others demand the most current and best performing technology available. If these consumers cannot get the most advanced product from Intergraph, they will get it from Intergraph’s competitors who have not been denied access to the advance information, sample chips, and production chips that Intel has denied to Intergraph. By its conduct toward Intergraph, Intel threatens to substantially restrain actual and potential competition in the graphics subsystem market. The effect of Intel’s conduct may be to leverage its monopoly in the “x86” CPU market and to create a monopoly power in the graphics subsystem market. 4. Intel’s Use of NDAs to Coerce Inter-graph. Intel provides its products, as well as technical and design information, to Intergraph under NDAs, which are terminable at will by Intel. .These NDAs are documents drafted by Intel and presented to Intergraph and other customers on a take-it-or-leave-it basis. Intel simply dictates the terms under which it provides its products and design information to customers such as Intergraph. (Patterson Tr. 128-130). The evidence suggests strongly that Intel has used the threatened or actual termination of NDAs as a contractual weapon, coercing customers such as Intergraph' to accede to Intel’s demands and restraining competition. The court takes judicial notice of the fact that, when Intergraph and Digital Equipment separately asserted their patent rights against Intel, Intel immediately used the termination provisions of their respective NDAs to deny both Intergraph and Digital further technical information, samples, and products and demanded the return of all-Intel confidential information provided to them. See Intel v. Intergraph and Intel v. DEC lawsuits. Also, the court takes judicial notice of the current government antitrust investigation of Intel by the Federal Trade Commission involving allegations of similar conduct by Intel in withholding crucial technical or design information or terminating NDAs to restrain competition. (Verified Motion Ex. D). In view of Intel’s previous policy of providing much of the same type of information now subject to NDAs in a much less restricted manner and in view of the fact that Intel has offered no reasonable explanation of any present need for the use of the NDAs, it seems reasonable to conclude that Intel’s present use of one sided and terminable-at-will NDAs and its retaliatory cancellation of the NDAs are unreasonable and anticompeti-tive contractual restraints using Intel’s monopoly in CPUs and related design and techr nical information. Furthermore, the chilling effect which Intel’s arbitrary enforcement of the NDAs in this manner must have on other members of the industry, who are dependent upon Intel for microprocessors, is obvious. Other than Intel’s position that it does not wish to do business with those who sue it (Tr. 313 — 314), the court perceives of no rational or legitimate business reason why Intel would immediately terminate its NDAs with Intergraph. As noted before, there is no suggestion in the record that Intergraph has failed in any way to fully honor and comply with its obligations of confidentiality under the NDAs. 5. Intel’s Conduct to Restrain Competition in the Graphics Subsystem and Workstation Markets. Intergraph will likely prove that Intel has recently entered into agreements, conspiracies and combinations with Intergraph’s competitors and suppliers to restrain competition from Intergraph in the graphics subsystem and workstation markets. Intel has offered Intergraph customers in the digital media market funding for projects or other support on condition that such customers use workstations from Intergraph’s competitors and that they not deal with Intergraph. (Patterson Supp. Aff. ¶8; Tr. 91-93). Intel has agreed with competitors of Intergraph, such as Compaq and NetPower, to make jqint presentations to Intergraph’s customers to convince them not to deal with Intergraph and to buy from Intergraph’s competitors instead. (Tr. 199-201). Intel has used the termination of a three-way NDA to prevent a test equipment supplier from doing business with Intergraph, to prevent that supplier from providing needed test equipment to Intergraph, and to prevent Intergraph from fixing a “bug” in Intel’s product. Moreover, Intel refused to provide information to Intergraph, which was needed to fix the “bug,” requiring Intergraph to spend substantial time and resources to solve the problem and delaying Intergraph’s product entry into the market. (Tr. 205-211). The court can find no legitimate business justification for Intel’s conduct. By preventing Intergraph from acquiring the data necessary to fix the “bug,” Intel failed to comply with its own warranties and contractual obligations. The court also finds that Intel has attempted to leverage its monopoly power in the “x86” CPU market to prevent Intergraph from competing in the graphics subsystem and workstation markets and to control and dominate competition in these markets through discriminatory and favored agreements and understandings with some of In-tergraph’s competitors. This reduces competition in the markets in which Intergraph competes, depriving customers of alternative and improved technology in these markets, stifling innovation, reducing competition in price and quality, and impairing competition generally. 6. Intel’s Conduct Toward Intergraph Since the Hearing. Intel originally promised Intergraph that it would deliver samples and technical information pertaining to Intel’s latest microprocessor (code named “Deschutes”) by December 15, 1997. Those samples were not delivered to Intergraph until January 26, 1998, the date on which Intel publicly released that product as the 333 MHZ, “Pentium II” microprocessor. That same day, Intergraph’s competitors announced that they had Des-chutes-based workstations available for delivery. Likewise, based upon the assurances of Keith Johnson, as reaffirmed by the affidavit of Mr. Bauernfreund, Intergraph also announced that its TDZ 2000 workstation would incorporate the new 333 MHz Pentium II microprocessors. (Second Meadlock Aff. ¶ 6). On January 26, 1998, however, Mr. Johnson, at a meeting at Intergraph in Huntsville, Alabama, informed Intergraph, for the first time, that Intel would not honor its commitment to supply Intergraph with technical design, defect or user information pertaining to the newly released Deschutes processors. Mr. Johnson also advised Intergraph that Intel would not supply Intergraph with the revised Deschutes “BIOS” code. As a result, Intergraph lacked the information and software necessary to complete the system integration of the Deschutes processor and a third-party motherboard for the TDZ 2000. (Phillips Aff. ¶ 5). Mr. Johnson further advised Intergraph that the only information that would be made available to it was the information already available on Intel’s publicly accessible site on the World Wide Web, information that did not include the technical data necessary to design or support Des-chutes/Pentium Il-based products. (Dobbins Aff.) Mr. Johnson even refused to give Inter-graph the address of the Intel Web Site containing the public information. (Dobbins Aff.). Subsequent to the Huntsville meeting with Mr. Johnson, Intergraph requested a copy of the revised BIOS from the BIOS developer, but it was told that Intel had instructed the developer to withhold the BIOS from Intel’s customers. Intergraph was able to acquire a copy of the BIOS from a local Intel distributor, but still has not been supplied with the necessary Deschutes technical information. (Elliott Aff. ¶ 3, Greg Vance Aff. ¶ 3.) As a result, Intergraph still cannot complete a deliverable Deschutes-based product. (Phillips Aff. ¶ 5, Ellard Aff. ¶ 5, Farmer Aff. ¶¶ 3, 4, Elliott Aff. ¶ 3). With respect to other Deschutes-based products, Intergraph had to cancel several motherboard developments and the F5 server project. (Phillips Aff. ¶ 3, 4, Hall Aff. ¶ 3, Worden Aff. ¶ 3). Intergraph has also been compelled to contract with third-party manufacturers on an emergency basis to design and build mother boards so that it will have some product to offer. Third party contracting delayed Intergraph’s ability to get a competitive product to market, and will yield motherboards and systems which are not specifically tailored to Intergraph’s needs. (Ellard Aff. ¶ 5, Farmer Aff. ¶ 3, Vance Aff. ¶ 3) Because Intel has continued to withhold technical information from Intergraph, the plaintiff has no Deschutes-based “next generation” products available. (Ellard Aff. ¶ 5, Elliott Aff. ¶ 3.) According to Mr. Meadlock, Intel’s refusal to deal continues to further erode Intergraph’s goodwill and reputation with its customers and the industry. (Mead-lock Aff. ¶ 6.) The termination of Inter-graph’s Deschutes-based projects is irreparably effecting Intergraph’s future product development, “[a]nd the effect of that is going to be to put Intergraph in a position where it cannot compete in its market.” (Transcript page 232, lines 1-3.) III. Monopoly Power and the Relevant Market. In addition to the relevant market of high performance microprocessors (or “CPUs”), the court finds that Intel CPUs are a separate relevant product market or relevant submarket based on the following facts: (a) Intel’s Pentium CPUs and Intel’s next generation CPUs (such as Deschutes and Merced) are not interchangeable with other CPUs; (Tr. 64-65); (b) Intel’s Pentium CPUs have performance capabilities that surpass the performance of other CPUs; (Tr. 70- ' 71); (c) Intel has enormous brand recognition and appeal among consumers, who demand an Intel CPU, and end-user consumers do not consider other systems to be substitutes or alternatives. (1996 Intel Annual Report 1996); (d) Once customers are technologically and financially locked-in to an Intel CPU, they cannot feasibly switch to an alternative CPU. (Patterson Supp. Aff. ¶ 14); (e) Intel has a huge installed base of customers locked in to Intel’s network. This creates network barriers, compatibility barriers and increasing returns to scale that further entrench Intel; and (f) Intel has deliberately designed its related CPU architecture (such as proprietary sockets) to prevent other CPUs from being compatible, thereby converting its CPU architecture from an “open” to a “closed” system; (Tr. 85). It is self-evident, as admitted by Intel’s counsel, that Intel has a 100 percent absolute monopoly of Intel CPUs. (Tr. 262). There are enormous and extreme financial and technological barriers to entry so that no other company can feasibly enter the relevant market and provide effective competition to Intel. IBM and Motorola unsuccessfully attempted to compete with Intel with the PowerPC CPU. But Microsoft no longer supports- the PowerPC with a compatible Windows program, so it is not an alternative. (Tr. 165-166). Counsel for Intel alluded to the Alpha CPU, owned by Digital Equipment Corporation, as a potential competitive CPU, but the court takes judicial notice of published reports of the settlement between Intel and Digital giving Intel- ownership and control of Alpha. Based on the foregoing facts, the court finds that Intel has monopoly power in the relevant market of high performance CPUs and the separate relevant market of Intel CPUs on a worldwide basis. IV. Harm to Intergraph and Hardship to Intel if the Injunction is Granted. As the court has found, Intergraph has no viable alternative to Intel’s Pentium II microprocessor for its high-end computer workstations. Because it has no such alternative, there is no way Intergraph can mitigate the harm it faces from Intel’s conduct during the foreseeable pendency of this lawsuit. Intergraph has established to this court’s satisfaction that Intel dominates the high-end Windows-based workstation market in which Intergraph operates and in which Intergraph has built its reputation. (Tr. at 96-97; Patterson Aff. ¶¶ 18-19). Intel advanced technical information, samples, and products, which are distributed through the use of NDAs, are all necessary to Intergraph’s survival as a competitor in the high-end computer work station market, which depends upon its ability to adequately service and provide customer support for its existing products, as well as its ability to create, manufacture, and sell competitive products in the future. (Patterson Aff. ¶ 16; Tr. at 97). Adequate supplies of Intel Production Chips are necessary to Intergraph’s manufacturing operations because of its technological and economic lock-in to Intel. Virtually all of Intergraph’s manufacturing is dedicated to the production of Intel-based computers and graphics subsystems. (Mead-lock Aff. ¶ 15). Intel Chips Samples and Early Release Chips are critical to Inter-graph’s development of new products, and, particularly because of the short shelf life of these products, those Chips Samples and Early Release Chips are critical to Inter-graph’s ability to compete. For instance, while the Pentium II 300 MHz processor was the fastest and most powerful microprocessor available in the Windows-based workstation market at the time of the Hearing, the testimony indicates that Intel planned to release a faster version in January 1998. (Tr. 55-56). Competitors of Intergraph apparently have already received substantial lead time in developing new workstations based upon Early Release Chips and Chips Samples. (Meadlock Aff. ¶¶ 13-14; Patterson Aff. ¶¶ 14,17, 21). The court is persuaded that disruption in the supply of Intel Products will adversely affect Intergraph’s relations with its customers, employees, shareholders, creditors, distributors and suppliers. (Meadlock Aff. ¶ 16; Patterson Aff. ¶¶23, 25; Blaxton Aff. ¶7; Floyd Aff. ¶¶ 3-5; Phillips Aff. ¶ 8; Ellard Aff. ¶ 7; Tr. at 97-100). Disruption in the supply of Intel Products has the serious potential of shutting down the development and manufacturing efforts at Intergraph, potentially causing the loss of thousands of jobs. (Tr. 99; Meadlock Aff. ¶ 17; Patterson Aff. ¶ 22). Some of Intel’s actions directed against Intergraph in 1996 and early 1997 were in response to Intergraph’s refusal to license its Clipper patent rights. Apparently, that conduct was exacerbated and continued because Intergraph filed the present lawsuit. Recent events demonstrate that the potential damage to Intergraph in terms of loss of good will, harm to reputation, and other losses is difficult, if not impossible, to calculate. Intel’s counsel has admitted that Intel withheld Information from Intergraph on “bug” problems with Intel Chips in the fall of 1997. See December 5, 1997, Letter from Intel’s counsel. Intel’s failure to detect a design problem as simple as turning a computer on and off cost Intergraph thousands of design hours. Further, Intel then failed to provide Intergraph with curative information and later denied Intergraph access to testing equipment. (Tr. 89-91; 210-212). Because of Intel’s conduct, Intergraph was, delayed in getting its TDZ 2000 products to the market. (Floyd Aff. ¶ 4). Most recently, Intel reneged on its commitment to supply the Des-chutes Chips Sample in mid-December of 1997. (Blaxton Aff. ¶ 5). The effect of this delay is to put Intergraph materially behind its competitors. In 1996, Intel reported net earnings of Five Billion Dollars ($5,000,000,000), while Intergraph reported a net loss of Sixty-Nine Million Dollars ($69,000,000). Intergraph has improved -its system sales for 1997, as its sales of high performance workstations were projected to increase by eighty percent over 1996 sales. (Tr. 215). These are the very workstations that are dependent on Intel Products. Given Intel’s position as the exclusive supplier of microprocessors in this market, the court finds that Intel’s actions are likely to cause harm to Intergraph that would thwart this court’s ability to provide meaningful relief at the conclusion of this action, should Intergraph prevail on its claims. On the other hand, if the injunction is issued, Intel will be required to do nothing more than what it willingly, and apparently profitably, did with Intergraph for several years. It will merely be required to engage in business with Intergraph on substantially the same terms that it did between 1993 and 1997 and on substantially the same terms it does with others in the computer industry today. The balance of the harm to Intergraph and the hardship to Intel weighs heavily in favor of issuing the injunction. V. Conclusions of Law. A. Section II of the Sherman AntiTrust Act. Section 2 of the Sherman Anti-Trust Act (“ § 2”) provides: “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony.” 15 U.S.C. § 2. In order to prevail on its § 2 monopolization claim, Intergraph only needs to establish that Intel (1) possesses monopoly power in the relevant market and (2) has willfully acquired or maintained that power. Eastman Kodak v. Image Technical Services, Inc., 504 U.S. 451, 481, 112 S.Ct. 2072, 2089-90, 119 L.Ed.2d 265 (1992) (citing United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1703-04, 16 L.Ed.2d 778 (1966)). The court concludes that Intergraph has established a substantial likelihood of proving both elements at trial. 1. Intel Monopoly Power. a. The Relevant Market. Based on the Findings of Fact, the court concludes there are two relevant markets in which Intel has monopoly power: (a) the relevant market for high performance microprocessors or CPUs and (b) the separate relevant market for Intel CPUs. Intel’s counsel conceded the first relevant market at the Hearing. (Tr. 289: “I think there is one market which is a, market for CPUs or microprocessors that are supplied to high-end workstations.”). The court concludes that Intel CPUs are also a separate relevant market under well-established criteria for determining relevant markets. U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 998 (11th Cir.1993) (holding that the market for a premium-priced anchor, which is part of a broader anchor market, constituted its own relevant market); Los Angeles Mem. Coliseum Comm’n v. National Football League, 726 F.2d 1381, 1393 (9th Cir.1984), cert. denied sub. nom., Oakland-Alameda County Coliseum, Inc. v. Oakland Raiders, Ltd., 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984); Eastman Kodak, 504 U.S. 451, 112 S.Ct. 2072, 119 L.Ed.2d 265 (Kodak spare parts are a separate relevant market). b. Intel’s Extraordinary Market Share. Intel’s extraordinarily high market shares in the relevant markets clearly exceed the legal threshold for presumptive monopoly power. In the market for Intel CPUs, Intel has an absolute monopoly of 100 percent of the market. In the market for “x86” CPUs, Intel has a ninety percent share of the market. These shares alone support the court’s conclusion that Intel possesses monopoly power in the relevant markets. A sixty to sixty-five percent market share establishes a prima facie ease of market power and creates a genuine issue of dangerous probability of monopolization. U.S. Anchor, 7 F.3d at 999; see also United States v. Microsoft Corp., 980 F.Supp. 537 1997 U.S. Dist. LEXIS 19496 (approximately eighty percent market share in PC operating system software constitutes monopoly power); United States v. Grinnell Corp., 384 U.S. 563, 570, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966) (eighty percent market share is a “substantial monopoly” and eighty-seven percent “leaves no doubt” of monopoly power). c. Intergraph is Technologically and Economically “Locked-in” to Intel’s Microprocessor and Technical Information. Because Intergraph has re-designed its workstation program around Intel’s microprocessor — in reliance on Intel’s representations that it would be a reliable source of technical information and technology to In-tergraph — Intergraph is “locked-in” to Intel’s microprocessor technology and cannot feasibly switch to other microprocessors. Intel’s other customers are similarly “locked-in.” This reinforces and magnifies Intel’s monopoly power. Eastman Kodak, 504 U.S. at 477 (antitrust concerns are heightened where “locked-in” customers cannot readily switch to alternative technology). d. Customer Loyalty To Intel Enhances Its Monopoly Power. Strong customer brand loyalty is an impediment to competition, aids the exercise of market power and facilitates monopolization. U.S. Anchor, 7 F.3d at 998; see also United States v. E.I. du Pont de Nemours and Co., 351 U.S. 377, 392-93, 76 S.Ct. 994, 1005-06, 100 L.Ed. 1264 (1956); Ware v. Trailer Mart, Inc., 623 F.2d 1150, 1154 (6th Cir.1980). Intel clearly has brand identification through its “Intel Inside” program and other brand recognition that reinforces and magnifies Intel’s monopoly power. Intel enjoys the extraordinary loyalty of its customers with almost all purchasers of personal computers and the great majority of workstation buyers insisting upon having a genuine “Intel Inside” their computers. e. Intel’s Large Installed Base And Network Of Customers Further Enhances Its Market Power. As the installed base of Intel-based computers, servers, and workstations increases, Intel’s market power is magnified, entry barriers are raised higher, and competitors are foreclosed from the market. See United States v. Microsoft, 56 F.3d 1448 (D.C.Cir.1995), on remand, 1995-2 Trade Cases ¶ 71,-096, 1995 WL 505998 (D.D.C.1995) (increasing returns to scale represent a significant entry barrier in computer software market to compete against Microsoft with its large installed base; antitrust consent decree approved). This factor also supports the court’s conclusion that Intel possesses monopoly power in the relevant markets. A rapidly evolving high technology market such as microprocessors provides a market environment favorable to increased concentration of market power. Greyhound Computer Corp., Inc. v. IBM, 559 F.2d 488, 497 (9th Cir.1977) (“But rapid technological progress may provide a climate favorable to increased concentration of market power rather than the opposite.”) The court concludes that the combination of all the foregoing factors establishes that Intel has monopoly power as a matter of law in the two microprocessor relevant markets. 2. Intel has Willfully Acquired and Maintained Its Monopoly Power. The second element of a § 2 monopolization violation is the willful acquisition or maintenance of monopoly power. The court concludes that the facts amply establish this element. “Market power is the power to force a purchaser to do something that he would not do in a competitive market.” Eastman Kodak, 504 U.S. at 464. This describes Intel’s power and the exercise of this power in the relevant markets in this case, for it strongly appears that Intel has attempted to coerce Intergraph into relinquishing its intellectual property rights as a condition of Intel permitting Intergraph to continue as a competitor in the high-end graphics workstation market. Intel induced Intergraph to discontinue the use and further development of its then competitive Clipper micropi’ocessor. Intel has won the microprocessor platform competitive war and dominates the high-performance CPU market. Because Intel is a monopolists, the law imposes upon it affirmative duties to refrain from acting in a manner that unreasonably harms competition. It is not necessary for Intergraph to establish that Intel acquired its monopoly unlawfully. It is enough to show that Intel has misused or maintained that monopoly, even if lawfully acquired. “[T]he use of monopoly power, however lawfully acquired, to foreclose competition, to gain a competitive advantage, or to destroy a competitor, is unlawful.” U.S. v. Griffith, 334 U.S. 100, 107, 68 S.Ct. 941, 945, 92 L.Ed. 1236 (1948). Even conduct by a monopolist that is otherwise lawful may violate the antitrust laws where it has anticompetitive effects. Image Technical Services, Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1207 (9th Cir.1997) (“Legal actions, when taken by a monopolist, may give rise to liability, if anticompetitive.”); Greyhound Computer v. IBM, 559 F.2d 488, 498 (9th Cir.1977), cert. denied, 434 U.S. 1040, 98 S.Ct. 782, 54 L.Ed.2d 790 (1978) (otherwise lawful conduct may be unlawfully exclusionary when practiced by a monopolist); Bonjorno v. Kaiser Aluminum & Chemical Corp., 752 F.2d 802, 811 (3d Cir.1984), cert. denied, 477 U.S. 908, 106 S.Ct. 3284, 91 L.Ed.2d 572 (1986) (“When a monopolist competes by denying a source of supply to his competitors, raises his competitor’s price for raw materials without affecting his own costs, lowers his price for finished goods, and threatens his competitors with sustained competition if they do not accede to his anti-competitive designs, then his action^ have crossed the shadowy, barrier of the Sherman Act.”); Oahu Gas Service, Inc, v. Pacific Resources, Inc., 838 F.2d 360, 368 (9th Cir.1988), cert. denied, 488 U.S. 870, 109 S.Ct. 180, 102 L.Ed.2d 149 (1988) (“Because of a monopolist’s special position the antitrust laws impose what may be characterized as affirmative duties.”). Accordingly, the court concludes that Intel has violated its affirmative duties as a monopolist not to misuse its monopoly power and to compete in a manner that does not unreasonably or unfairly harm competition. Moreover, the court has concluded that In-tergraph is likely to prevail on its § 2 monopolization claims under one • or more established theories of antitrust liability discussed below and that the preliminary injunction is due to be granted. B. Intel’s Unlawful Refusal to Deal and Denial of Access to Essential Facilities. A refusal to deal “may be unlawful because a monopolist’s control of an essential facility (sometimes called a ‘bottleneck’) can extend monopoly power from one stage of production to another, and from one market into another.” MCI Communications Co. v. American Tel. & Tel., 708 F.2d 1081, 1132 (7th Cir.1983), cert. denied, 464 U.S. 891, 104 S.Ct. 234, 78 L.Ed.2d 226 (1983). Courts have • held that the antitrust laws protect customers and purchasers in cases when a monopolist refuses to deal in: order to control a downstream market or to frustrate litigation. Image Technical Services, 125 F.3d at 1211 (supplier’s refusal to deal with its “customers” in order to control a downstream market); Bergen Drug Co. v. Parke, Davis & Co., 307 F.2d 725, 726 (3d.Cir.1962), (preliminary injunction granted. where defendant drug company refused to sell its products to “purchasers” on the same terms as they are sold to other purchasers). The antitrust laws impose on firms controlling an essential facility the obligation to make the facility available on non-discriminatory terms. MCI Communications Corp., 708 F.2d at 1132; Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973), reh’g denied, 411 U.S. 910, 93 S.Ct. 1523, 36 L.Ed.2d 201 (1973); Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985) (access to essential facility must be granted by ski lift owner controlling seventy-five percent of the ski lifts); Tic-X-Press, Inc. v. Omni Promotions Co. of Ga., 815 F.2d 1407, 1420 (11th Cir.1987) (Omni arena was unique facility with substantial economic advantages; lack of viable alternative arenas gave the owner substantial market power). Intel’s advanced CPUs and Intel’s technical information are “essential” if they are vital to competitive viability and competitors cannot effectively compete in the relevant market without access to them. City of Anaheim v. Southern Calif Edison Co., 955 F.2d 1373, 1380 n. 5 (9th Cir.1992) (a facility is “essential” if it is otherwise unavailable and cannot be “reasonably or practically duplicated”). Intel’s Advanced Chips Samples, E