Full opinion text
MEMORANDUM OF DECISION NEWMAN, District Judge. This case presents important issues concerning the relationship between the patent laws and the antitrust laws. The issues arise in the procedural context of a private treble damage action brought pursuant to § 4 of the Clayton Act, 15 U.S.C. § 15, and tried to a jury. The factual context is the manufacturing and marketing of office photocopy machines — machines capable of automatically creating copies of an original document. Plaintiff is SCM Corporation, a conglomerate with annual revenues in excess of $1 billion. During the 1960’s SCM was among the world’s leading producers of coated paper copiers — machines capable of automatically creating copies of an original document on specially treated paper coated with zinc oxide. In the mid 1970’s SCM marketed a plain paper copier, the 6740, which it purchased from the Van Dyk Corporation, and currently markets two models of a plain paper copier manufactured by a Japanese company. Defendant is Xerox Corporation, a business machines company with annual revenues in excess of $4 billion. In 1960 Xerox brought to market the world’s first automatic plain paper copier, the Xerox 914. For the next ten years Xerox and its family of companies were the world’s only producers of plain paper copiers. While a competitive plain paper copier was introduced by IBM in 1970 and by numerous manufacturers thereafter, Xerox continues today to be the world leader in plain paper copiers. The complaint, filed July 31,1973, alleged that Xerox, acting unilaterally and in concert with other companies, excluded SCM from the field of plain paper copying, causing damages claimed at trial to exceed $500 million. The complaint alleged violations of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, and § 7 of the Clayton Act, 15 U.S.C. § 18. An amended complaint added allegations of injury to SCM’s copier business by Xerox marketing practices in violation of § 2 of the Sherman Act and § 3 of the Clayton Act, 15 U.S.C. § 14. In addition to trebled damages, far-reaching equitable relief was sought. A preliminary injunction was sought and denied. Pre-trial Ruling No. 6, aff’d, SCM Corp. v. Xerox Corp., 507 F.2d 358 (2d Cir. 1974). After extensive pre-trial preparations, see SCM Corp. v. Xerox Corp., 77 F.R.D. 10 (D.Conn.1977), jury trial began on June 20, 1977. Fourteen months later, on August 16, 1978, the jury was discharged after returning the last of 54 verdicts. Evidence was presented during 215 days, summations consumed 4V2 days, and the jury deliberated for 38 days. The trial transcript totals 46,-802 pages. I. Basic Claims and Verdicts SCM Damage Claims. SCM presented damage claims in five broad categories: excluding SCM from plain paper copying beginning in 1964; excluding SCM from plain paper copying beginning in 1969; denying SCM the opportunity to market in the United States the Fuji-Xerox 2200 copier manufactured in Japan; impairing SCM’s marketing of coated paper copiers by use of two pricing plans known as MUP and XCP; and impairing SCM’s marketing of 6740 plain paper copiers by various practices. The 1964 and 1969 exclusion claims were the heart of SCM’s case. SCM alleged, alternatively, that beginning in 1964 or 1969 and continuing until the present, Xerox monopolized the plain paper copier industry and excluded SCM from entering the field. SCM sought the damages it would have avoided if Xerox had not refused SCM’s requests in 1964 and 1969 for plain paper copier patent licenses. The 1964 and 1969 exclusion claims each contained three elements of damages: (a) the financial benefits SCM would have achieved, which included net profits' through 1976 and net going concern value as of the end of 1976; (b) the actual losses SCM incurred in the placement of coated paper copiers; and (c) the actual losses SCM incurred in the placement of the 6740 plain paper copiers. It was SCM’s theory that had it not been excluded from entering into plain paper copying in 1964 and 1969, it would not only have made money, but would have avoided the losses it suffered in its coated paper copier business and in the placement of 6740’s. The presentation of both a 1964 and a 1969 exclusion claim stemmed from a dispute concerning application of the statute of limitations. SCM initially sought patent licenses from Xerox in 1964 and annually thereafter at least through 1969. The complaint was filed July 31, 1973. Normally the applicable four-year statute of limitations would apply to bar any cause of action accruing prior to July 31, 1969. 15 U.S.C. § 15b. However, SCM alleged, and Xerox did not dispute, that the limitations period was extended back to January 16, 1969, because (1) on that date the Federal Trade Commission filed a complaint against Xerox alleging monopolization of the plain paper copying field, and (2) the institution of proceedings by the United States suspends the running of the statute of limitations “in respect of every private right of action . based in whole or in part on any matter complained of in said proceeding . . . . ” 15 U.S.C. § 16(b). Actions initiated by the FTC toll the four-year limitations period. Minnesota Mining & Manufacturing Co. v. New Jersey, 381 U.S. 311, 85 S.Ct. 1473, 14 L.Ed.2d 405 (1965). Xerox also raised no issue concerning the first two weeks of January, 1969; so the parties were in agreement that SCM’s 1973 complaint was timely as to causes of action accruing on or after January 1, 1969. The 1969 exclusion claim therefore sought damages SCM alleged it had suffered by being denied patent licenses on or about January 1, 1969. As an alternative to the 1969 exclusion claim, SCM presented a 1964 exclusion claim for damages allegedly suffered by being denied patent licenses on or about January 1, 1964. SCM contended that the four-year limitations period, as extended back to January 16, 1969, by the FTC complaint, did not bar this claim because, under the principles of Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 1247, 28 L.Ed.2d 552 (1971), the. damages flowing from the 1964 license denial were not ascertainable until after January 16, 1969, and the cause of action based on the 1964 license denial had therefore not accrued until after January 16, 1969. With respect to both the 1964 and 1969 exclusion claims, SCM estimated its lost profits by presenting elaborate economic models as to what would have happened if it had secured from Xerox plain paper copier licenses on or about January 1 of 1964 and 1969.® SCM estimated the types of machines it would have manufactured, the revenues it would have realized, and the costs it would have incurred. Since the 1964 exclusion claim estimated placements and profits over a longer period of time than the period estimated for the 1969 claim, the 1964 damage claim was considerably higher. SCM sought $507 million for the 1964 exclusion claim and $100 million for the 1969 exclusion claim. SCM also sought $12 million for the Fuji-Xerox 2200 claim, $15 million for the MUP and XCP marketing claims, and $4 million for the 6740 marketing claim. SCM also sought trebling of all sums recovered. Structure of the Trial. The presentation of evidence was divided into three stages. The first stage, which consumed the bulk of the trial, concerned all issues of antitrust violation and the lost profits component of the 1964 and 1969 exclusion damage claims. The second stage, consuming three days of evidence, concerned the actual loss components (for both coated and plain paper) of the 1969 exclusion damage claim, plus the damage claims based on marketing practices. The third stage, requiring only one day of evidence, concerned the net going concern value component of the 1969 exclusion damage claim. The Court elected to submit to the jury a large number of interrogatories. This was done, over the plaintiff’s objection, for two reasons. First, the sheer volume and complexity of the evidence necessitated focusing the jury’s attention on specific issues to be sure that orderly decision-making occurred. Second, the use of numerous interrogatories seemed to offer some prospect of minimizing the risk of retrial. That objective assumed special importance in this case because of the extraordinary length of the trial and the presence of numerous novel or at least unsettled issues of law. Maximizing jury decision-making remained a principal objective of the Court throughout the trial in order to provide opportunity for particularized appellate review. The interrogatories answered by the jury are set forth in full in Appendix A. Since the 1964 and 1969 exclusion claims raised numerous pairs of identical issues, differing only as to years, many of the questions concerning the 1964 claim were repeated for the 1969 claim, and given the same number but with the addition of an “a.” As with the evidence, the jury’s decision-making was divided into stages, but, for reasons detailed in the margin, the division of jury decision-making differed slightly from the division of evidence. Initially 76 questions were submitted to the jury at the conclusion of the first stage of evidence. The jury was instructed first to answer the four questions concerning the relevant product markets (Questions 1, la, 2, and 2a) and report their verdicts on these issues before proceeding further. The jury’s verdicts on the product market issues, agreeing with SCM’s contentions as of 1969, but not as of 1964, prompted the Court to withdraw from the jury’s consideration nine questions dealing with the 1964 exclusion claim. Since some of the remaining questions were to be answered only if a “yes” answer were given to preceding questions, the jury answered 44 questions at the end of the first stage. One aspect of the jury’s responses, discussed at pages 1009-1010, infra, prompted the Court to submit two additional questions (Questions 24a-l and 27a-l). In the second stage, the jury was given 11 questions, concerning some issues of proximate cause and quantification of damages. Because of some negative answers, the jury answered seven questions of this group. In the third stage only a single question was asked and answered. This concerned quantification of the net going concern value component of the 1969 exclusion claim. Jury’s Verdicts on SCM’s Damage Claims. The jury’s verdicts were in favor of SCM on some parts of two of the five damage claims, but also in favor of Xerox on one of its defense contentions. As to the 1964 exclusion claim, the jury rejected SCM’s contentions concerning the relevant market or sub-market as of 1964. (Questions 1 and 2). SCM had contended that there existed by 1964 a relevant market consisting of “convenience office copiers” using both plain and coated paper and a relevant sub-market consisting of “convenience office copiers” using only plain paper. “Convenience office copiers” meant copying machines suitable for automatic use in offices but not including spirit duplicators, mimeograph machines, or offset machines. Xerox defined the relevant market to include spirit, mimeo, and offset, with offset included to the extent that the machines were used for run lengths of less than 200 copies from an original. Despite the jury’s rejection of SCM’s market definitions as of 1964, the jury was asked several questions concerning other aspects of the 1964 claim. The jury concluded that SCM had not proved that in 1964 it had the intention, preparedness, and capability to enter into plain paper copying. (Question 22). That negative answer totally rejected the 1964 exclusion claim, regardless of any claim SCM may have that a relevant market or sub-market existed by 1964 as a matter of law. As to the 1969 exclusion claim, the jury upheld SCM’s relevant market contentions as of 1969 (Questions la and 2a), found violations of § 2 of the Sherman Act (Question 4a), § 1 of the Sherman Act (Question 15a), and § 7 of the Clayton Act (Questions 20 and 21a), and found that Xerox conduct in violation of the antitrust laws was a proximate cause of SCM’s not entering into plain paper copying in 1969 (Questions 24a and 27a). As to the lost profit component of the 1969 exclusion claim, the jury concluded that SCM suffered damages of $11.5 million in cumulative lost profits from 1969 to 1976 (Question 50) and $25.6 million in loss of net going concern value as of the end of 1976 (Question 61). However, the jury also upheld Xerox’s defense contention that SCM should reasonably have avoided all the 1969 exclusion claim damages by pursuing earlier litigation against Xerox (Question 34). The jury rejected the two components of the 1969 exclusion claim concerning SCM’s actual losses in coated paper copying (Question 32a) and actual losses in the placement of 6740 plain paper copiers (Question 59), finding that SCM had not proved that these losses were proximately caused by SCM’s exclusion from plain paper copying in 1969. As to the MUP and XCP marketing claims, the jury found that MUP violated § 2 of the Sherman Act (Question 45) and § 3 of the Clayton Act (Questions 43 and 44), that the MUP pricing plan was a proximate cause of SCM’s not placing some coated paper copiers (Question 52), and that SCM thereby suffered $230,874 of damages (Question 53). As to the Fuji-Xerox 2200 claim, the jury found that there had been no violation of § 1 of the Sherman Act as alleged by SCM (Question 38) and that SCM had not proved its intention, preparedness, and capability to market the 2200 (Question 41), thereby totally rejecting this claim. As to the 6740 marketing claim, the jury found no marketing practices in violation of § 2 of the Sherman Act affecting 6740 placements as alleged by SCM (Question 48), thereby totally rejecting this claim. The issue currently before the Court is what money judgment, if any, should be entered upon the jury’s verdicts. The broad questions are whether in view of the verdicts, both those favoring SCM and those favoring Xerox, there is a lawful basis for SCM to recover $11.5 million in lost profits and $25.6 million in lost net going concern value on the 1969 exclusion claim and $230,874 in coated paper copier losses on the MUP marketing claim, and whether any sums awarded are to be trebled. Consideration of these questions requires a detailed consideration of the evidence. II. The Evidence Xerography. In the 1930’s Chester Carlson, working as a patent attorney, turned his inventive mind to the task of discovering a technique for copying documents that would be an improvement over photography and its variant, photostating. In a truly creative feat of invention, he conceived of the process of electrophotography, adapting the principles of electrostatics to the reproduction of images. What Carlson invented was a process, later named xerography, which, as ultimately perfected, consisted of several steps. First, an electrostatic charge is placed on a photoconductive surface, i. e., a surface that will retain an electrical charge in the dark and lose it when exposed to light. After this charging step, the photoconductive surface is exposed by reflecting light against the image to be copied onto the photoconductive surface. The white portions of the image reflect the light, and these reflections discharge the electrostatic charges on the photoconductive surface at the points receiving light. The black portions of the image (typewriting on a document) do not reflect the light. The result is that electrostatic charges remain on the photoconductive surface in a pattern equivalent to the image to be copied. This pattern of invisible electrostatic charges is then developed by bringing particles of toner (the equivalent of ink in conventional printing) into contact with the photoconductive surface. The toner particles are given an electrostatic charge opposite to the charge of the photoconductive surface so that the particles cling to the surface wherever an electrostatic charge remains, thus forming a pattern of toner equivalent to the image to be copied. The surface on which the copied image is to appear, usually a sheet of plain paper, is then brought into contact with the photoconductive surface. An electric charge behind the paper, opposite to the charge of the toner particles, causes the particles to transfer to the paper, maintaining on the paper the same pattern they formed on the photoconductive surface. The toner particles are then fused to the paper by heat or pressure to fix them permanently on the surface of the paper, completing the creation of a copy of the original image. The process just described is xerography in the reusable mode, that is, the photoconductive surface can be cleaned, and used over and over again for the cycle consisting of charging, exposing, developing, transferring, fusing, and cleaning. The process is to be contrasted with electrofax or zinc oxide copying, in which a sheet of paper coated with zinc oxide serves as the photo-conductive surface. In this latter process, charging, exposing, developing, and fusing occur, but there is no transfer or cleaning. The image to be copied appears on the sheet of coated paper. Coated paper copying requires a less complicated and less expensive machine than plain paper copying, although the cost of supplies is higher, since coated paper costs more than plain paper. If the costs of machine and paper are considered together, customers pay more for making a single copy on plain paper than on coated paper, but the plain paper process becomes cheaper than coated paper when large quantities of copies are made. The distinction between uses of xerography for plain and coated paper copying is important to understanding the issues in this case. From the time it introduced the world’s first automatic plain paper xerographic copier in 1960 until 1970, when IBM brought out its competing plain paper copier, Xerox was the world’s only maker of plain paper copiers. SCM was licensed by Xerox to use xerographic patents for coated paper copying, but was never granted licenses for plain paper copying. The exclusion claim damages in this suit are the damages SCM contends it would not have suffered had Xerox granted SCM plain paper copier patent licenses in 1969. Assessing the claim requires explanation of what happened to the xerographic process after its basic concept was originated by Carlson. Initially, it must be realized that Carlson had only a concept, albeit an extraordinary one. Using crude materials, he was able in 1938 to develop a barely readable image on a photoconductive surface. He thereby demonstrated the potential use of his concept, but it would be 22 years before an automatic machine would reduce his concept to practice suitable for convenient use in an office at the push of a button. Carlson-Battelle Relationship. Sharing the frustrations and initial fate of many inventors, Carlson made extensive efforts to interest business machine companies in the development of his invention. No commercial enterprise offered to invest any money. Ultimately Carlson stirred the interest of the Battelle Memorial Institute (Battelle) of Cleveland, Ohio, a non-profit research institute. In 1944 Carlson and Battelle concluded an agreement whereby Carlson designated as his agent for licensing the Battelle Development Corp., a wholly owned subsidiary of Battelle, and received the right to 40% of any royalties that Battelle might earn from licensing the patents. Later Carlson formally assigned his patents to Battelle, retaining the right to 40% of royalties. Battelle-Xerox Relationship. Battelle proceeded to work on the xerographic process, inventing many features that ultimately proved indispensable to the creation of an automatic machine. Initially Battelle fared no better than Carlson had in interesting any commercial enterprise to sponsor research in exchange for a license. In 1946 the Haloid Company of Rochester, N.Y., (as Xerox was then known) contacted Battelle and offered to negotiate an agreement. The result was not only a business relationship that was to launch one of America’s foremost episodes of corporate success, but also a set of legal relationships that are central to SCM’s claims in this case. The first agreement between Battelle and Haloid (PX 103) was entered into in 1947. It provided that Battelle would license Haloid to use the Carlson patents and any new Battelle patents concerning electrophotography. The license covered equipment for the reproduction of documents, but excepted equipment designed to make more than 20 copies of an original. The license was described as non-exclusive and non-assignable. However, the agreement also specified circumstances under which Battelle would not license anyone else to use the patents for copying equipment, except for equipment designed to make more than 20 copies of an original. Haloid agreed to pay Battelle an 8% royalty, with a modest minimum royalty provision, and also agreed to sponsor research at Battelle in the amount of $25,000 per year. A second agreement (PX 268) was entered into in 1948. It changed the ’47 agreement in several respects. The less-than-20-copy limitation was dropped, and Haloid’s license covered virtually all applications of xerography. The license was exclusive, replacing the prior arrangement of a nonexclusive license that became exclusive under specified circumstances. Haloid obtained the right to sub-license and agreed to pay Battelle 62%% of all sub-license royalties. Haloid’s royalty rate on its license from Battelle remained at 8%, though the minimum payment was increased. Haloid agreed to use diligent efforts to secure sub-licensees to engage in research, development, and commercialization of the licensed patents. The sub-licensing was to be on terms mutually agreeable to Haloid and Battelle. In the event of disputes concerning sub-licensing, Haloid was given final authority with respect to sub-licensing for document reproduction equipment, except for equipment designed to reproduce more than 20 copies of an original. Final authority on sub-licensing for more-than-20-copy reproduction equipment and for all other xerographic equipment was given to Battelle. A third agreement (PX 187) was entered into in 1951. It eliminated all exclusions from Haloid’s exclusive license, extended the territorial scope of the exclusive license world-wide, and further increased Haloid’s minimum royalty payment. Haloid’s 8% royalty rate on its license and 62V2% rate on sub-licenses were continued, as was the Haloid “diligent efforts” undertaking concerning sub-licensing. A fourth agreement (PX 187) was entered into in 1956. Before considering its terms, the business context must be understood. In the 1950’s work by Battelle and Xerox resulted in a machine capable of using the xerographic process to produce a copy of an original document. The machine was not automatic. It required the several steps of the xerographic process to be taken separately, over a span of about 4 minutes. This machine, known as flat plate equipment, was not suitable for use in offices, but it did produce a copy of an original suitable for use as an offset master. The machine enjoyed modest commercial success. Subsequently there was developed the copy-flo machine, a device that used the xerographic process to copy images from microfilm onto a roll of plain paper. Though unable to make single or multiple copies of a single original document onto cut sheet paper, the copy-flo machine was successful as a device for customers who wanted microfilm “printed” more quickly and less expensively than by traditional photographic enlargement. The advent of these commercially successful uses of xerography produced considerable income to Xerox (as the company was then called) and consequent royalty obligations from Xerox to Battelle. By 1956 40% of Xerox’s profits were derived from xerographic products. The large and increasing revenues obtained by Xerox was one consideration that prompted Xerox to renegotiate its arrangement with Battelle. Under the 1956 Xerox-Battelle agreement, Xerox in effect replaced the arrangement whereby it paid for an exclusive license in cash royalties with an arrangement whereby it acquired the patents in exchange for Xerox stock. Battelle thereby benefited from the success of xerography by the appreciation of Xerox stock instead of by receiving royalty income. The agreement reached this result in stages. Initially Xerox acquired the four basic Carlson patents and, in 1959, the rest of Battelle’s xerographic patents. Xerox transferred to Battelle 55,000 shares of Xerox stock. Xerox’s royalty obligation was considered paid up for 1956-1958, and for 1959-1965 was reduced to 3% on sales up to $20 million and 1% on sales above $20 million. After 1965 the royalty obligation ended. Xerox also acquired the right to receive all future xerographic patents and technology developed by Battelle as long as Xerox sponsored research at Battelle in an amount of at least $25,000 per year. By acquiring title to the Carlson and Battelle patents, Xerox extinguished whatever obligation it had under the prior agreements to seek sub-licensees. Xerox's Foreign Relationships. In view of SCM’s claims based on concerted action by Xerox and others, it is necessary to sketch briefly Xerox’s arrangement for foreign exploitation of xerography. In 1956, Xerox and the Rank Organisation of London formed a joint venture known as Rank-Xerox. Xerox assigned all foreign patents to Rank-Xerox, and Rank agreed to invest $600,000 in the new venture. Xerox and Rank each owned 50% of the stock of Rank-Xerox, though profits, after return of Rank’s investments were divided % to Xerox and Vs to Rank. In 1959 Rank-Xerox and Fuji Photo Film of Tokyo formed a joint venture known as Fuji-Xerox to exploit xerography in Japan and other parts of the Far East. In 1969 Xerox purchased from Rank a 1% interest in Rank-Xerox, thereby becoming a 51% owner of Rank-Xerox and a 25.5% owner of Fuji-Xerox. Success of Plain Paper Copiers. With the introduction of the first automatic plain paper copier in 1960, Xerox enjoyed phenomenal commercial success. Revenues increased from $47 million in 1960, to $383 million in 1965, to $1.7 billion in 1970, and to more than $4 billion by 1975. Profits before taxes increased from $6 million in 1960, to more than $100 million in 1965, to more than $400 million in 1970, and to more than $800 million by 1975. For ten years after 1960 Xerox and its affiliated companies manufactured the only plain paper copiers in the world. IBM entered the field in 1970, as did other companies in the early 1970’s. All were sued by Xerox for patent infringement. Federal Trade Commission Proceeding. The final aspect of the factual context is the activity of the Federal Trade Commission. On January 12,1969, the FTC filed a complaint against Xerox, charging monopolistic practices and seeking broad equitable relief including compulsory licensing of Xerox patents and termination of the relationships between Xerox and its affiliated companies. That proceeding terminated with the entry of a consent decree on July 29, 1975. Under the decree (Court Ex. 135) Xerox offered non-exclusive licenses under any three of its plain paper copier patents at no royalty and under all of its patents at nominal royalties of Vá of 1% per patent up to a maximum of 1V2% for any one product, plus the right to a grant-back of non-exclusive licenses on all xerographic patents of a licensee. Though initially excluded from the evidence in this case, the basic provisions of the FTC decree were ultimately admitted (Tr. 17,840-41) as a result of Xerox’s contentions and lines of attack developed in cross-examination (Tr. 11,116-26). III. The 1969 Exclusion Claim SCM’s Theories of Liability. SCM grounded its exclusion claim on several theories of antitrust law violation. Though entertaining grave doubts as to several of SCM’s theories, the Court concluded that a trial would be necessary in any event because of the allegation that Xerox entered into an agreement with Battelle, Rank, Rank-Xerox, Fuji, and Fuji-Xerox, or some of them, to refuse to license xerographic patents for plain paper uses to anyone other than the companies within the Xerox family of related companies. This claim appeared to state a classic concerted refusal to deal in violation of § 1 of the Sherman Act. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969). Whether the other theories were tenable legal theories were matters on which the parties sharply disagreed, but on which they could offer scarcely any authoritative precedent either way. Faced with the prospect of a long trial to adjudicate an entirely valid legal claim, the Court concluded that the jury should be given the task of doing whatever fact-finding might reasonably be required to afford this Court and any reviewing court the opportunity to rule on the validity of SCM’s other theories of liability. Neither at the outset, nor in retrospect, did it seem that very much additional evidence would be presented to support the additional theories beyond the proof relevant to a claim of concerted refusal to license. Moreover, SCM’s marketing claims required jury consideration of whether Xerox had monopoly power in a relevant market, an issue that assured extensive presentation of evi-. dence, regardless of whether the additional theories of liability for not licensing were tenable. The SCM theories of liability with respect to the exclusion claim and the jury’s responses on those they considered may be summarized as follows. First, as mentioned, SCM claimed a concerted refusal to deal with respect to plain paper copier patented and unpatented technology in violation of § 1. SCM contended that two agreements existed among Xerox and the members of its family of companies: an agreement to exclude other companies from the manufacturing and marketing of plain paper copiers throughout the world, and an agreement to deny other companies licenses to use plain paper copier patents throughout the world. The jury found that SCM had not proved the existence of either agreement as of 1964 or 1969. (Questions 18, 16, 18a, and 16a). SCM also contended that Xerox possessed monopoly power in a relevant market and sub-market and had willfully acquired or maintained such power in violation of § 2 of the Sherman Act. SCM urged the Court to charge the jury that a company that willfully acquires or maintains monopoly power is liable for damages when it refuses to license its patents. (SCM request to charge No. § 2-64). The Court submitted to the jury questions concerning the elements of a § 2 violation, but declined to instruct as requested concerning SCM’s view of the consequence of a § 2 violation, believing that the theory, if valid, could be supported by subsidiary findings without its explicit submission to the jury. The jury found that in 1969, but not in 1964, there existed a relevant market, as alleged by SCM, consisting of convenience office copiers using both plain and coated paper, and a relevant sub-market, as alleged by SCM, consisting of convenience office copiers using only plain paper. (Questions 1, la, 2, and 2a). The jury also found that as of 1969 Xerox had monopoly power in the relevant market and in the relevant sub-market. (Question 3a). Xerox conceded that if there was a relevant plain paper sub-market, which it disputed, its 100% share gave it monopoly power. The jury also found that as of 1969 Xerox willfully acquired or maintained monopoly power in both the convenience office copier market and the plain paper copier sub-market (Question 4a), thereby finding all the elements of actual monopolization in violation of § 2. SCM also alleged violations of § 1 of the Sherman Act and § 7 of the Clayton Act, based on the 1956 agreement between Xerox and Battelle. While SCM alleged that numerous other Xerox agreements and acquisitions violated §§ 1 and 7, and that these violations showed that Xerox’s monopoly power was willfully acquired or maintained, it was the 1956 Battelle agreement on which SCM based a specific claim of injury proximately caused by violations of §§ 1 and 7. But for that agreement, SCM contended, it would have obtained plain paper copier patent licenses “effected by Battelle,” SCM Exclusion Claim Br. 7, presumably on the theory that Battelle would have insisted that Xerox sub-license under the exclusive licenses Xerox already held. The jury found that as of 1964 and 1969 the 1956 Xerox-Battelle agreement was an unreasonable restraint of trade. (Questions 15 and 15a). With respect to the § 7 claims, SCM alleged that Xerox’s acquisition of patents from Battelle in 1956 had the probable effect of substantially lessening competition or tending to create a monopoly in both the convenience office copier market and the plain paper copier sub-market. The jury agreed. (Question 20). SCM also contended that in both 1964 and 1969 the probable effect of Xerox’s continued holding of patents acquired pursuant to the 1956 Xerox-Battelle agreement was substantially to lessen competition or tend to create a monopoly in the convenience office copier market and the plain paper copier sub-market. The jury agreed as of both dates. (Questions 21 and 21a). SCM also alleged that liability could be predicated upon § 2 of the Sherman Act on the theory that plain paper copiers were an essential product, and a company with monopoly power with respect to such a product is obligated to afford other manufacturers an opportunity to make and market the product. Reliance was placed on cases such as Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973); United States v. Terminal Railroad Ass’n, 224 U.S. 383, 32 S.Ct. 507, 56 L.Ed. 810 (1912); Hecht v. Pro-Football, Inc., 187 U.S.App.D.C. 73, 570 F.2d 982 (1977); Cameo v. Providence Fruit & Produce Bldg., Inc., 194 F.2d 484 (1st Cir. 1952). The Court declined to submit this theory to the jury. Since SCM’s 1969 exclusion claim is a claim for the damages SCM suffered because Xerox did not grant SCM plain paper copier patent licenses in January, 1969, one might reasonably expect the legal issues to be limited to whether Xerox had a duty to license. While SCM contends Xerox did have such a duty, its primary position is that a damage award is proper, based on the jury’s verdicts, wholly apart from a Xerox duty to license. As SCM sees it, “[i]t is irrelevant whether Xerox’s refusal to license was an illegal act or whether Xerox had a duty under the antitrust laws to license the acquired patents to others.” (SCM Exclusion Claim Br. 7). In SCM’s view it has been excluded from plain paper copying, and this “exclusion” is not just a refusal to license. Relationship Between Patent and Antitrust Laws. Before considering the validity of SCM’s theories concerning the 1969 exclusion claim, a preliminary look is appropriate at the relationship between the antitrust laws and the patent laws. Ever since the King’s Bench considered a patent-antitrust conflict in 1602 in the first reported case on the subject, the issues arising in this field have yielded few clear or satisfying answers. Economic arguments can be made that these statutes have a common goal of maximizing wealth by facilitating the production of what consumers want at the lowest cost. See W. Bowman, Patent and Anti trust Law 1 (1973). Whatever their economic congruency, there can be little doubt these two sets of laws are juridically divergent. The antitrust laws condemn monopoly, and “the very object” of the patent laws “is monopoly.” Bement v. National Harrow Co., 186 U.S. 70, 91, 22 S.Ct. 747, 46 L.Ed. 1058 (1902). The patent monopoly is an “exception to the general rule against monopolies,” Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 816, 65 S.Ct. 993, 998, 89 L.Ed. 1381 (1945). Of course the holder of patent rights is not immune from the antitrust laws as countless cases illustrate. E. g., United States v. Singer Mfg. Co., 374 U.S. 174, 83 S.Ct. 1773, 10 L.Ed.2d 832 (1963); United States v. New Wrinkle, Inc., 342 U.S. 371, 72 S.Ct. 350, 96 L.Ed. 417 (1952); United States v. Line Material Co., 333 U.S. 287, 68 S.Ct. 550, 92 L.Ed. 701 (1948). And it is equally clear that a patent is a “species of property,” Transparent-Wrap Machine Corp. v. Stokes & Smith Co., 329 U.S. 637, 643, 67 S.Ct. 610, 91 L.Ed. 563 (1947), and that its use, like that of other property, can violate the antitrust laws. E. g., United States Gypsum Co. v. National Gypsum Co., 352 U.S. 457, 77 S.Ct. 490, 1 L.Ed.2d 465 (1957); Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376 (1944). But a patent is not just like any other type of property. The holder of an ordinary chattel can normally enjoy its exclusive use but he has no protection whatever from any other person who discovers or creates an identical item and uses that item for economic gain. However, the holder of a patent, in addition to the usual incidents of property ownership, enjoys for the 17-year term of his statutory monopoly, the exclusive power to prevent anyone else from using the patented invention for economic gain, even a person who discovered or created the invention entirely independent of the patent owner. The patent laws grant this broad exclusionary power for a limited time to provide an incentive for research investment and to secure the public benefit of full disclosure of the patented invention. This broad power to exclude, broader than the power enjoyed by the owner of ordinary property, is what requires an accommodation between the patent laws and the antitrust laws. The monopoly power condemned by § 2 of the Sherman Act is the power to exclude competition from a relevant market, United States v. DuPont & Co. (cellophane), 351 U.S. 377, 391, 76 S.Ct. 994, 100 L.Ed. 1264 (1956), yet the power to exclude is precisely the power granted by the patent laws. And the patent laws place no limitation on the granted power to exclude even when the patented invention is used in a product that creates and defines its own relevant market. In determining when use of a patent can violate the antitrust laws, courts obviously cannot focus on the patent owner’s power to exclude without ignoring a core concept of the patent laws. The cases upholding antitrust violations by holders of valid patents, despite the insulation of the patent laws, have generally done so upon a finding that the patent holder misused the patent to extend his monopoly beyond the statutory grant, e. g., Mercoid Corp. v. Mid-Continent Investment Co., supra (requiring purchase of unpatented product to obtain patented product), or that the patent holder abandoned his freedom to decide unilaterally whether or not to permit use of his patented invention and instead agreed with others not to permit licensing at all or do so only on restricted terms, e. g., Zenith Radio Corp. v. Hazeltine Research, Inc., supra (concerted refusal to license except on restricted terms). While normally not characterized as such, the concerted refusal to license cases may themselves be viewed as prohibitions against extension of the statutory patent monopoly: the patent laws give the patent owner the power to exclude, but once he makes an agreement with others not to license the patent, the patent monopoly has in a sense been extended because the power to exclude has now been given to those who derived no power from the patent itself. Thus the patent misuse cases and the concerted refusal to license cases may be viewed as holding no more than that a patent holder violates the antitrust laws when he extends his patent monopoly, and conversely he is immune from antitrust liability when he does no more than maintain his patent monopoly. But other developments in the field indicate that the antitrust laws might limit a patent holder who does not seek to extend his patent monopoly either by techniques normally characterized as patent misuse or by a concerted refusal to license. The principal example is a requirement of prospective compulsory licensing to remedy the effects of an adjudicated antitrust violation, United States v. United Shoe Machinery Corp., 110 F.Supp. 295 (D.Mass.1953), aff’d, 347 U.S. 521, 74 S.Ct. 699, 98 L.Ed. 910 (1954). Also of significance are the occasions when a company holding an accumulation of patents that dominate an industry has voluntarily agreed to license its patents in the face of an allegation of antitrust law violation. E. g., United States v. International Business Machines Corp., 1956 CCH Trade Cases ¶ 68,245 (S.D.N.Y.1956); United States v. Radio Corporation of America, 1958 CCH Trade Cases ¶ 69,164 (S.D.N.Y. 1958). Indeed, the evidence in this case disclosed that the prospect of one day being required to license its patents was fully apprehended by Xerox’s leadership. In 1969 Xerox’s president observed, “It’s clear that we don’t want to license until we have to . . . .” (Tr. 9,573-74). Ultimately, in 1975, in the face of antitrust allegations brought by the Federal Trade Commission, Xerox did agree to a consent decree requiring patent licensing at nominal royalties. Of course the IBM, RCA, and Xerox prospective licensing consent decrees are not adjudications of a duty to license, but they are strong indications of a reasonably held apprehension that an appropriate way to harmonize the prohibitions of the antitrust laws with the protections of the patent laws is to require prospective licensing of patents when a company’s patent structure threatens undue maintenance of industry domination. Of equal interest in assessing the extent of patent law protection is the absence of any reported decision in which a patent holder has been held liable to pay money damages, for a unilateral refusal to license patents, as compensation to a potential competitor for the profits that would have been earned if licensing had occurred. Just as the consent decrees do not establish an obligation to license prospectively, the absence of damage awards does not preclude retrospective liability for failure to license. However, both circumstances illuminate the context in which the issues arising under SCM’s 1969 exclusion claim must be resolved. In particular, they indicate that the need to harmonize the purposes of the patent and antitrust laws may well require recognition that some patent-related conduct creates antitrust liability only for prospective equitable relief, but not for treble damage remedies, at least in some circumstances. Other approaches have been urged that result in a distinction allowing prospective equitable remedies while denying retrospective damage remedies. Xerox puts the argument on constitutional grounds, suggesting that even if prospective licensing were warranted, the imposition of damage liability for a unilateral refusal to license valid patents would be an “avulsive change” in the law, Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 499, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), of which there was no “fair warning.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Hanover Shoe found it unnecessary to consider the argument since the finding of violation was determined not to be “a sharp break in the line of earlier authority.” 392 U.S. at 499, 88 S.Ct. at 2234. See also Berkey Photo, Inc. v. Eastman Kodak Co., 457 F.Supp. 404, 436-40 (S.D.N.Y.1978). A second approach achieves the distinction with respect to a plaintiff who has no share of the market from which he alleges exclusion. He may be denied a damage remedy because his damage estimate is too speculative even under the generous standards of Bigelow v. RKO Radio Pictures, 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652 (1946). See, e. g., Flintkote Co. v. Lysfjord, 246 F.2d 368, 389-94 (9th Cir. 1957). That is apparently the approach favored by Profs. Areeda and Turner. Antitrust Law: An Analysis of Antitrust Principles and Their Application (1978) (hereafter “Antitrust Law”). Having emphasized the frequently speculative nature of damages claimed by a would-be market entrant, II Antitrust Law, supra, § 344c, they then consider only equitable relief as a remedy for § 2 violations involving unlawful exclusionary use of patents, id. at § 705b. A third approach, explicitly espoused by Profs. Areeda and Turner, achieves the distinction with respect to the monopoly that results from market structure and economic performance, without any restrictive practices. Anxious to preserve § 2 coverage of that monopoly, they would permit the use of prospective equitable remedies to restore competition, at least at the instance of the government, while denying the availability of damage remedies as unfairly punitive in the absence of wrongdoing. II Antitrust Law, supra, § 311c. This Court agrees with their observation that “the fact that a situation is appropriate for equitable relief under the antitrust laws is not automatically or necessarily a warrant either for criminal punishment or for treble damages.” II Antitrust Law, supra, § 311b. But see Berkey Photo, Inc. v. Eastman Kodak Co., supra, 457 F.Supp. at 438, referring to “an inaccurate supposition that there is a sharp dichotomy between suits in equity and damage claims.” Whatever the appropriateness of the distinction between damages and equitable relief in other contexts, it is viewed in the context of this case as a matter of statutory construction, harmonizing the protective purposes of the patent laws with the competitive purposes of the antitrust laws. The usefulness of the private treble damage action for effective enforcement of the antitrust laws, see Minnesota Mining & Mfg. Co. v. New Jersey Wood Finishing Co., 381 U.S. 311, 318, 85 S.Ct. 1473, 14 L.Ed.2d 405 (1965), will not be impaired by recognizing that in some circumstances the patent laws can best be accommodated to the antitrust laws by permitting only prospective equitable remedies. While it may be that Xerox’s failure to license patents, on which so much of SCM’s claim in this case depends, is not a violation justifying any relief, a holding of that breadth might preclude prospective equitable relief in those cases where the purposes of the antitrust laws warrant such relief, and where the granting of such relief would not have the same adverse effects upon the purposes of the patent laws as would the imposition of damage liability. In short, the distinction is advanced in this case, as a matter of statutory accommodation, not to disallow damages otherwise recoverable, but to leave open the prospect of equitable relief otherwise foreclosed. These considerations provide a background against which to assess the legal sufficiency of SCM’s several theories in support of its 1969 exclusion claim. It may be helpful to consider separately each of SCM’s contentions under § 7 of the Clayton Act and §§ 1 and 2 of the Sherman Act. Section 7. There are two aspects of SCM’s § 7 claim. The first and basic contention is that the 1956 and 1959 acquisitions of Carlson and Battelle patents pursuant to the 1956 agreement were unlawful when made and were a proximate cause of SCM’s injury. The second claim is that the continued holding of these patents by Xerox in 1969 was unlawful and was a proximate cause of SCM’s injury. An acquisition condemned under § 7 is one whose probable effect is to lessen competition or tend to create a monopoly in a relevant market. SCM made no claim in this case that the convenience office copier market or the plain paper copier sub-market existed in 1956 or 1959 when the challenged acquisitions were made. The SCM evidence sought to prove that the markets existed by 1964, when SCM first claimed entitlement to licenses. In view of the fact that the markets were alleged to come into existence after the challenged acquisitions, the jury was instructed that in determining whether the acquisitions had the probable proscribed effect (Question 20), they should consider whether it was reasonably foreseeable at the time of the acquisitions that the markets would exist and that the proscribed effects would occur in such future markets. (Tr. 43,942-45). These instructions were amplified at the parties’ request (Tr. 44,-248-60) and further amplified after specific inquiry from the jury (Court Ex. 88, Tr. 44,332-35). Liability for retrospective money damages cannot be predicated under § 7 upon a patent acquisition made prior to the existence of a relevant product market. No case has ever upheld such liability, and its allowance in this case would be beyond any reasonable accommodation of the patent and anti-trust laws. Indeed, there is considerable doubt whether liability can be grounded under § 7 for the mere acquisition of any asset prior to the existence of a relevant product market. Section 7 contains its own prospective element concerning the probable future anti-competitive effects of an acquisition in a relevant product market. It is one thing to subject the acquirer of an asset to the risk that he may be liable in damages if he incorrectly assesses the likelihood that his acquisition may in the future substantially lessen competition or tend to create a monopoly in an existing market. But it would be an extreme extension of § 7 to impose upon the acquirer the additional risk of assessing the likelihood that a relevant product market would come into existence at some time in the future. If § 7 could ever be interpreted to impose liability for money damages for acquisition of property prior to the existence of a relevant market, the policies of the patent laws prohibit such an interpretation as to an acquisition of patents. The purpose of the patent laws is to “promote the Progress of Science and useful Arts.” U.S.Const., Art. 1, § 8, Cl. 8. Achievement of that objective is not limited to internally developed inventions. A traditional approach to development of significant products is assignment by the inventor of an exclusive license or the patent itself to a company willing to risk the investment needed for commercial success. Of course acquisitions of patents are not exempted from § 7. United States v. Lever Brothers Co., 216 F.Supp. 887, 889 (S.D.N.Y.1963); United States v. Columbia Pictures Corp., 189 F.Supp. 153, 181-82 (S.D.N.Y.1960). In some circumstances a patent acquisition may so strengthen a company’s power within an existing relevant market and pose such a likely threat of the anti-competitive effects condemned by § 7 that equitable relief may be warranted to prohibit the acquisition or to require prospective licensing, or that a court of equity should withhold injunctive relief when the acquirer seeks to enjoin infringement of the acquired patents. Perhaps damages are available in such circumstances. But to impose damage liability for an acquisition made prior to the existence of a relevant product market would risk inhibiting the commercialization of patented inventions to an extent inconsistent with the purposes of the patent laws. Inventors and companies that wish to acquire patented inventions in the hope of achieving commercial success may share the dream of developing products that will one day find such public acceptance as to constitute their own relevant product market, and if that prediction is made and actually achieved, its financial rewards are protected by the patent laws and not required by the antitrust laws to be shared with competitors. The rewards are protected, not for “the creation of private fortunes,” Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 511, 37 S.Ct. 416, 61 L.Ed. 871 (1917), but to provide the incentive for the necessary investment. It is therefore unnecessary to consider Xerox’s contentions that the evidence was insufficient to support the implicit jury determination that the relevant product market and sub-market was reasonably foreseeable at the time of the acquisitions or that such a determination was so contrary to the weight of the evidence as to warrant a new trial. Even if a relevant product market had existed at the time of the patent acquisitions, there is no basis for permitting a damage award for a § 7 violation by an acquirer of patents with no market power prior to the acquisition. Section 7 is concerned with undue concentrations of power and the anti-competitive effects of permitting one entity with market power to strengthen its position by acquisition. See Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). Even if SCM had claimed and the evidence had shown the existence of a convenience office copier market in 1956 or 1959, a § 7 violation justifying an award of damages cannot occur when patents are acquired by a company that has no share at all of such a market. In 1956 and 1959 Xerox did not produce a convenience office copier. Whether such a violation could occur by acquisition of assets other than patents need not be considered. But simply transferring the exclusionary power of valid patents from an inventor or a research institute to a company with manufacturing and marketing potential does not create damage liability under § 7 when the acquiring company has no market power in the relevant product market. For the patent laws to achieve their purpose, a company without any present market power, because it has yet to develop a product, must remain free, at least of the threat of a damage remedy, to acquire patented inventions and to risk its time and money toward their commercial application. It is highly questionable whether a § 7 violation occurs at all when a company acquires patents prior to the existence of a relevant product market or acquires patents at a time when it has no market power in a relevant product market. However, it is sufficient for assessment of the acquisition aspect of SCM’s § 7 claim to conclude that even if there was a violation warranting prospective equitable remedies, the proper way to harmonize the patent and antitrust laws is at least to preclude a damage remedy for the profits a competitor maintains it would have made had the acquisition not occurred. Therefore, there is no need to consider Xerox’s challenge to the jury’s finding that the acquisition of patents pursuant to the 1956 agreement was a proximate cause of SCM’s not entering into plain paper copying in 1969. (Question 27a). Implicit in this verdict, in view of SCM’s contentions, is a finding that if Xerox had not acquired the Carlson and Battelle patents, Battelle would have insisted upon the sub-licensing of these patents to other companies including SCM. That finding, Xerox contends, is unsupported by the evidence or at least contrary to the weight of the evidence. Though Xerox’s contentions on this point need not be decided, significant issues would arise concerning the statute of limitations and the proper construction of § 7, as well as the issues of evidential sufficiency, if a damage award for profits not earned because of a license refusal could be based on the prediction that had Battelle not sold the patents in 1956, it would have required their sub-licensing to SCM in 1969. Wholly apart from its claim concerning unlawfulness of the patent acquisitions in 1956 and 1959, SCM contends that a § 7 violation warranting a damage award occurred in 1969 by reason of Xerox’s continued holding of the patents previously acquired. This contention is based on SCM’s attempt to apply the doctrine of United States v. du Pont & Co. (General Motors), 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057 (1957), and United States v. ITT Continental Baking Co., 420 U.S. 223, 95 S.Ct. 926, 43 L.Ed.2d 148 (1975), to the continued holding of patents. The jury found that by 1969 the convenience office copier market and plain paper copier sub-market existed and that Xerox possessed monopoly power in these markets. (Question la, 2a, 3a). Thus the barriers to a damage recovery based on the alleged unlawfulness of the initial acquisitions in 1956 do not defeat recovery on a claim of violation as of 1969, and it is therefore necessary to consider the validity of the jury’s verdict sustaining SCM’s claim that as of January, 1969, the probable effect of Xerox’s continued holding of patents acquired pursuant to the 1956 agreement was substantially to lessen competition or to tend to create a monopoly in the relevant product market and sub-market. (Question 21a). In du Pont (General Motors) the Supreme Court held that the lawfulness of an acquisition under § 7 is to be tested not only at the time of the acquisition but “any time when the acquisition threatens to ripen into a prohibited effect.” 353 U.S. at 597, 77 S.Ct. at 879. As expressed in ITT Continental Baking, “[T]here can be a violation at some time later even if there was clearly no violation ... at the time of the initial acts of acquisition.” 420 U.S. at 242, 95 S.Ct. at 937. However, no case has ever applied the “holding” theory of § 7 to award compensatory damages simply for holding shares or assets, and SCM’s effort to do so here fails for three reasons. First, even as to a holding of shares, the liability for equitable relief upheld in du Pont (General Motors) and for damages in the subsequent derivative action, Gottesman v. General Motors Corp., 414 F.2d 956 (2d Cir. 1969), was based on an impermissible use of the shares. “Sec. 7 contemplates an action at any time the stock is used to bring about, or in attempting to bring about, the substantial lessening of competition.” 353 U.S. at 597-98, 77 S.Ct. at 879-80. The shares of General Motors were not merely held by du Pont. As viewed by the Supreme Court, the record was clear “that du Pont purposely employed its stock to pry open the General Motors market to entrench itself as the primary supplier of General Motors’ requirements for automotive finishes and fabrics.” 353 U.S. at 606, 77 S.Ct. at 884. It is true that the Second Circuit in Gottesman subsequently observed that “what was unlawful was du Pont’s status as stockholder in General Motors . .” 414 F.2d at 965. However, the Court of Appeals later made clear that a holding of stock is not enough; the plaintiff must show that the defendant “did in fact so use its stock ownership as to cause injury to the plaintiff . . . .” International Railways of Central America v. United Brands, 532 F.2d 231, 247 (2d Cir. 1976). SCM cannot base a damage claim under the “holding” theory of § 7 simply because in 1969 Xerox held patents that it had previously acquired. There is no claim that the patents were used to inflict damages. The only thing Xerox is alleged to have done with its acquired patents that caused SCM damage is to decline to license them. That is not a sufficient use of a held asset to create liability for compensatory damages. Second, even if the holding of an asset unaccompanied by anti-competitive use could create § 7 liability, such a theory cannot support a compensatory damage award to SCM because there is no obligation under § 7 to share even a wrongfully held asset with competitors. What du Pont was ultimately obliged to do with its General Motors shares was to sell them for value on the open market. United States v. du Pont & Co., 366 U.S. 316, 81 S.Ct. 1243, 6 L.Ed.2d 318 (1961). It was not obliged to share the attributes of ownership with anyone. Third, even if the “holding” theory of § 7 could create damage liability for the holding of some assets, a proper reconciliation of the patent and antitrust laws precludes the application of such a doctrine to patents. The purposes of the patent laws would be substantially impaired if a company that acquired patents lawfully and later found that the success of products embodying the patented inventions gave the company substantial power in