Full opinion text
OPINION ORRICK, District Judge. Before the Court are seven actions challenging the manner in which Data General Corporation (“Data General”) markets its computer equipment. Three of the actions were originally filed in this district and four were transferred here by the Judicial Panel on Multidistrict Litigation (“the Panel”) for consolidated or coordinated pretrial proceedings. Plaintiffs claim that, among other things, Data General ties the licensing of its software to the sale of its central processing units in violation of § 1 of the Sherman Act, 15 U.S.C. § 1 (hereinafter cited as “Sherman § 1”) and § 3 of the Clayton Act, 15 U.S.C. § 14 (hereinafter cited as “Clayton § 3”). In addition, plaintiff Ampex Corporation (“Ampex”) claims that Data General unlawfully ties the sale of its central processing units to the sale of its memory boards. Following more than a year of discovery encompassing the production of over 600,-000 documents, the taking of nearly 150 depositions and the exchange of hundreds of interrogatories and requests for admission, the parties filed cross-motions for summary judgment in accordance with the briefing procedures outlined in § 3.30 of the Manual for Complex Litigation (“the Manual”). Plaintiffs contend that Data General’s tying arrangements possess each of the elements of per se tying violations. Data General argues that it lacks the requisite economic power in the tying product markets and therefore no tying violation can be shown. The Court has painstakingly reviewed the voluminous record and finds, for reasons set forth below, that there exist genuine issues of material fact sufficient to preclude summary judgment in favor of either plaintiffs or defendant. The parties must proceed to trial limited to the question whether Data General possesses sufficient economic power in the tying product markets appreciably to restrain competition in the tied product markets. I A Allof the parties to this litigation are corporations engaged in the design, manufacture and/or marketing of computer / equipment. The items in issue are central processing units (“CPUs”), peripheral products, including memory devices, and operating systems software. CPUs process data. Peripheral products translate data from human-readable to machine-readable form, and vice versa, in conjunction with CPUs’ data processing activities. Memory devices receive, store, and supply data. CPUs, peripheral products, and memory devices are “hardware” items and each is separately plugged into the computer chassis. Computer programs, known generally as “software,” tell the hardware items which tasks to perform. Operating systems software provides the basic instructions for the operation of a computer in any practical application. Applications software is designed to perform specific data processing tasks. Operating systems software essentially serves as the liaison between the applications software and the hardware. Data General manufacturers and markets all of the items in issue here: CPUs, peripheral products, memory devices, and software. Data General’s CPUs bear the trademark “NOVA.” AIL of the plaintiffs, except Data Compass Corporation (“Data Compass”), manufacture CPUs and market them in competition with Data General’s NOVA CPUs. Most of the plaintiffs do not manufacture all of the other hardware and software items which together comprise a complete computer system. Plaintiffs’ CPUs are designed to be capable of functioning (whether as is or as modified) with the software which Data General makes available for use with its NOVA CPUs; they are sometimes referred to as “NOVA emulators.” The obvious object of plaintiffs’ marketing strategy is to offer consumers the option of assembling a multibrand computer system composed of CPUs manufactured by plaintiffs and memory devices, peripheral products, and software provided by Data General or other computer companies. In addition, plaintiff Ampex competes with Data General in the sale of memory devices as well as CPUs. Ampex aims to sell its memory boards to customers Who buy their CPUs from Data General, from Ampex or from third parties. This litigation focuses on three of Data General’s marketing practices. First, Data General makes its software available pursuant to a Program License Agreement which precludes the licensee from using Data General’s software with any CPUs not designated by Data General. With two exceptions not relevant here, Data General has only designated its own CPUs for use with its licensed software. Second, Data General requires its software licensees to purchase a minimum amount of Data General’s hardware (/. e., a “minimum equipment configuration” of memory devices and peripheral products) or to pay a license charge. Third, Data General requires initial purchasers of its CPUs to purchase a minimum amount of memory equipment. B This Court’s involvement in what is now complex, multi-party litigation began with the filing here of a simple, two-party, trade secrets case in June, 1978. Digidyne Corporation (“Digidyne”) sued Data General alleging that Data General was misrepresenting that Digidyne had appropriated its trade secrets and proprietary information. Digidyne sought a declaratory judgment that it had not done so, as well as substantial compensatory and punitive damages. Data General responded with a counterclaim alleging misappropriation of trade secrets, copyright infringement, inducement of breach of contract, unfair competition, and interference with prospective advantage. When Digidyne amended its complaint to allege antitrust violations (unlawful tying arrangements in violation of Sherman § 1 and Clayton § 3, and attempt to monopolize in violation of § 2 of the Sherman Act, 15 U.S.C. § 2), the framework within which the larger litigation eventually developed was thereby established. In broad outline: Data General has separately charged Digidyne, Fairchild Camera and Instrument Corporation (“Fairchild”), SCI Systems, Inc. (“SCI”), and Ampex with misappropriation of trade secrets and related state law violations; each of these companies as well as Bytronix Corp. (“Bytronix”), claims that Data General is liable for antitrust violations, notably unlawful tying practices. The action involving Data Compass differs somewhat from the others insofar as Data General's counterclaims focus on alleged breaches of contract rather than misappropriation of trade secrets. Once it appeared that the simple trade secrets case had become neither simple nor primarily a trade secrets case, the Court assumed the supervisory role recommended by the Manual. The case was first broken into its two major substantive components. Discovery and pretrial preparation have proceeded solely on the antitrust issues, while discovery regarding the trade secrets and related issues has been temporarily stayed. The antitrust part of the case was further bifurcated for pretrial and trial purposes into separate determinations of liability and damages. II A Antitrust law treats tying arrangements harshly. Proof that a tying arrangement possesses certain critical elements will render it illegal per se under Sherman § 1, Clayton § 3, or both. The Supreme Court initially applied the per se rule to tying arrangements in 1947, Interational Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947), and has repeatedly reaffirmed that holding. See, e. g., United States Steel Corp. v. Fortner Enterprises, Inc., 429 U.S. 610, 612 n.1, 97 S.Ct. 861, 863 n.1, 51 L.Ed.2d 80 (1977) (hereinafter cited as “Fortner II”); Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, 498-99, 89 S.Ct. 1252, 1256, 22 L.Ed.2d 495 (1969) (hereinafter cited as “Fortner I”); Northern Pacific Ry. Co. v. United States, 356 U.S. 1, 8, 78 S.Ct. 514, 519, 2 L.Ed.2d 545 (1958). The oft-quoted rationale for .subjecting tying arrangements to the per se rule is as follows: “[Tjhere are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. This principle of per se unreasonableness not only makes the type of restraints which are proscribed by the Sherman Act more certain to the benefit of everyone concerned, but it also avoids the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint has been unreasonable — an inquiry so often wholly fruitless when undertaken. * * * * * * For our purposes a tying arrangement may be defined as an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier. Where such conditions are successfully exacted competition on the merits with respect to the tied product is inevitably curbed. Indeed ‘tying agreements serve hardly any purpose beyond the suppression of competition.’ Standard Oil Co. of California [and Standard Stations ] v. United States, 337 U.S. 293, 305-306 [69 S.Ct. 1051, 1058, 93 L.Ed. 1371]. They deny competitors free access to the market for the tied product, not because the party imposing the tying requirements has a better product or a lower price but because of his power or leverage in another market. At the same time buyers are forced to forego their free choice between competing products.” Id. at 5-6, 78 S.Ct. at 518 (footnote omitted). B Plaintiffs must establish three elements in order to make out a per se violation of Sherman § 1. First, there must be two separate products, with the purchase of one (the “tying product”) conditioned upon the purchase of the other (the “tied product”). Second, the seller must possess sufficient economic power in the tying product market appreciably to restrain competition in the tied product market. Third, a not insubstantial amount of commerce in the tied product market must be affected. Fortner I, supra, 394 U.S. at 499, 89 S.Ct. at 1256, quoting Northern Pacific Ry. Co. v. United States, supra, 356 U.S. at 6, 78 S.Ct. at 518; Moore v. Jas. H. Matthews & Co., 550 F.2d 1207, 1212 (9th Cir. 1977). It was traditionally understood that a tying arrangement would run afoul of Clayton § 3 if it satisfied the first and either the second or the third of the elements required under the Sherman Act. Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 608-09, 73 S.Ct. 872, 880, 97 L.Ed. 1277 (1953). Recently, however, the neat distinction between tying arrangements that violate Sherman § 1 and those that violate Clayton § 3 has faded beyond recognition. The Ninth Circuit has indicated that the requisite elements under the two statutes are now “virtually identical.” Moore v. Jas. H. Matthews & Co., supra, 550 F.2d at 1214. See also von Kalinowski, 9 Antitrust Laws and Trade Regulation § 64.05[2] at 64-91 (1979). However, it has not been clearly stated whether the differences between the two standards were resolved in favor of the more stringent Sherman Act requirements, the less stringent Clayton Act requirements, or a new set of requirements. Moore suggests that all three Sherman Act elements now govern in both contexts inasmuch as the Ninth Circuit proceeded directly from the statement that the Sherman § 1 and Clayton § 3 standards are practically indistinguishable to the statement that all three elements must be satisfied under Sherman § 1. If the same standards apply under both statutes, and the Sherman Act requires all three elements, then the inescapable conclusion by which this Court is guided is that the Clayton Act also requires all three elements. In one of the few opinions to address this precise issue, the Fifth Circuit has reached the same conclusion. Spartan Grain & Mill Co. v. Ayers, 581 F.2d 419, 428 (5th Cir. 1978). C Three caveats accompany the general rule that a tie-in is illegal per se when it involves (1) separate products sold together (2) by a seller with economic power in the tying product market and (3) a not insubstantial amount of commerce in the tied product market is affected. First, plaintiffs must do more than prove the three elements. In order to recover under the Sherman and Clayton Acts, 15 U.S.C. § 15, plaintiffs must also prove that they were in fact damaged. Gray v. Shell Oil Co., 469 F.2d 742, 749 (9th Cir. 1972), cert. denied, 412 U.S. 943, 93 S.Ct. 2773, 37 L.Ed.2d 403 (1973). They must show that they have suffered some actual injury and that their injury was causally linked to defendant’s antitrust violation. Knutson v. Daily Review, Inc., 548 F.2d 795, 811 (9th Cir. 1976), cert. denied, 433 U.S. 910, 97 S.Ct. 2977, 53 L.Ed.2d 1094 (1977). Second, some courts have carved limited inroads into the rigid per se rule by recognizing exceptional circumstances in which business justifications render lawful a tie-in that otherwise possesses the requisite elements of per se illegality. See, e. g., Susser v. Carvel Corp., 332 F.2d 505, 520 (2d Cir. 1964), cert. dismissed, 381 U.S. 125, 85 S.Ct. 1364, 14 L.Ed.2d 284 (1965); Baker v. Simmons Co., 307 F.2d 458 (1st Cir. 1962); United States v. Jerrold Electronics Corp., 187 F.Supp. 545 (E.D.Pa.1960), aff’d per curiam, 365 U.S. 567, 81 S.Ct. 755, 5 L.Ed.2d 806 (1961). Although both the Supreme Court and the Ninth Circuit have noted in dicta that business justifications may “save” a tie-in, Fortner I, supra, 394 U.S. at 506, 89 S.Ct. at 1260; Moore v. Jas. H. Matthews & Co., supra, 550 F.2d at 1217, neither court has held that any particular tie-in would have violated the antitrust laws but for legitimate business justifications. Third, the assessment of the legality of a tying arrangement does not necessarily end with a finding that some or all of the elements of a per se violation are absent. A tying arrangement may nonetheless contravene Sherman § 1 under the rule of reason test. Fortner I, supra, 394 U.S. at 499-500, 89 S.Ct. at 1257. At the present stage of this litigation, plaintiffs rely on the per se rule and have not attempted to show that Data General’s alleged tying arrangements create an unreasonable restraint of trade. Therefore, this Opinion is addressed solely to the question whether Data General’s alleged tying arrangements are illegal per se. Ill A Summary judgment is appropriate where “there is no genuine issue as to any material fact and * * * the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). At the core of the disposition of a motion for summary judgment is the determination of which issues are “genuine” and which facts are “material.” A genuine issue exists where “sufficient evidence supporting the claimed factual dispute [is] shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968). A material fact is one which, under applicable principles of substantive law, must exist in order to support a judgment in favor of the moving party. Sherman v. British Leyland Motors, Ltd., 601 F.2d 429, 439 (9th Cir. 1979). The moving party bears the burden of establishing the absence of any genuine issue of material fact. In determining whether that burden has been satisfied, all evidence and inferences are to be viewed in a light favorable to the party opposing the motion. Catalano, Inc. v. Target Sales, Inc., 605 F.2d 1097, 1101 (9th Cir. 1979), citing Mutual Fund Investors v. Putnam Management Co., 553 F.2d 620, 624 (9th Cir. 1977). After Justice Clark wrote that “summary procedures should be used sparingly in complex antitrust litigation,” Poller v. Columbia Broadcasting Co., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962), district courts have shied away from the use of Rule 56 in antitrust cases. However, it is well established that “summary judgments have a place in the antitrust field, as elsewhere,” White Motor Co. v. United States, 372 U.S. 253, 259, 83 S.Ct. 696, 700, 9 L.Ed.2d 738 (1963), and that the Poller warning was concerned primarily with cases, typically involving conspiracy allegations, “where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot.” Poller v. Columbia Broadcasting Co., supra, 368 U.S. at 473, 82 S.Ct. at 491; White Motor Co. v. United States, supra, 372 U.S. at 259, 83 S.Ct. at 699. Furthermore, summary judgment has been explicitly sanctioned for use in antitrust cases involving alleged per se violations where the law is well developed and “the gist of the case turns on documentary evidence.” Id. “Where there is conspiracy or attempt to monopolize, courts do require proof of specific intent, and this normally involves trial. We have no such requirement in tying cases.” Capital Temporaries, Inc. of Hartford v. Olsten Corp., 506 F.2d 658, 667 (2d Cir. 1974) (citation omitted, emphasis added). B Where the parties submit summary judgment motions but the Court determines that a final judgment cannot be rendered without proceeding to trial, Rule 56(d) directs the court to specify the material facts that have been established beyond dispute and those that remain in dispute. “If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.” The purpose of a Rule 56(d) order, which is analogous to a pretrial order under Rule 16, is to salvage all constructive results of summary judgment proceedings. 6 Pt. 2 Moore’s Federal Practice ¶ 56.20[1] at 56-1203 (1979). The Ninth Circuit has expressly approved the use of Rule 56(d) and rejected the contention that the procedure infringes the litigants’ right to a jury trial. In Diamond Door Co. v. Lane-Stanton Lumber Co., 505 F.2d 1199 (9th Cir. 1974), petitioners in a bankruptcy proceeding moved for summary judgment on their claim that the alleged bankrupt had, while insolvent, made a preferential transfer in violation of the bankruptcy statute. Six elements had to be established in order to make out the alleged violation. The district court ruled that five of those elements were established beyond dispute and that genuine issues of material fact existed only with respect to the sixth element (whether the alleged bankrupt was insolvent at the time of the transfer). Pursuant to Rule 56(d), the court entered an order on the basis of the five elements that had been established and called for a jury trial to determine the sole remaining issue (i. e., insolvency). The alleged bankrupt argued on appeal that the procedure violated his right to a jury trial. The Ninth Circuit held that the use of Rule 56(d) was proper, the procedure did not invade the jury's province because summary adjudication was only rendered upon the facts that were undisputed, and the record fully supported the district court’s determination that there was no genuine issue of material fact with respect to five of the six elements of the alleged violation. Id. at 1203-06. In the antitrust context, the Ninth Circuit has also sanctioned procedures which, like Rule 56(d), require the trial court to adjudicate some of the elements of a claim and submit only the remaining elements to the jury. Siegel v. Chicken Delight, Inc., 448 F.2d 43 (9th Cir. 1971), cert. denied, 405 U.S. 955, 92 S.Ct. 1172, 31 L.Ed.2d 232 (1972), involved the claim by a class of franchisees that their franchisor, Chicken Delight, imposed unlawful tying restrictions. After the case was presented — but before it was submitted — to the jury, plaintiffs moved for a directed verdict. The district court ruled in plaintiffs’ favor on the three elements of the alleged tying violation and on the fact of damage element and sent only one issue — whether the tie-in was justified — to the jury. The jury found that the tie-in was not justified and judgment was rendered for the plaintiffs. The Ninth Circuit affirmed the finding of liability, remanded for a new trial on the damages issue, and neither stated nor suggested any objections to the procedures employed by the trial court. In conformity with Rule 56(d) and the relevant case law, this Court has attempted to salvage all constructive results of the monumental efforts the parties have invested in these summary judgment proceedings. As elaborated below, the tying violations alleged here involve five issues: (1) whether there are tie-ins involving two separate products; (2) whether Data General possesses sufficient economic power in the tying product markets to restrain competition in the tied product markets; (3) whether the tie-ins affect a not insubstantial amount of commerce in the tied product markets; (4) whether plaintiffs were damaged by the tie-ins; and (5) whether business reasons justify the otherwise unlawful tie-ins. The record contains genuine issues of material fact with respect to the economic power issue regarding both alleged ties. However, the Court finds that there are no genuine issues of material fact with respect to the other four issues (Nos. 1, 3, 4, and 5 as listed above). Thus, the cross-motions for summary judgment must be denied and the parties must proceed to jury trial on the economic power issue. IV Having set out the legal standards governing both the proof of a per se tying violation and the use of summary judgment procedures, the Court must now apply that law to the facts of this case. The remainder of this Opinion will be structured as follows: for each of the three requisite elements of a per se tying violation, the additional fact of damage element, and the asserted defense of business justifications, the Court will first state the facts which under the substantive law it deems to be material and then discuss whether the record contains or lacks a genuine issue with respect to the facts material to each of the two alleged tie-ins. A In determining whether two items are separate products or components of a single product, the Court is to focus on the “function of the aggregation.” Moore v. Jas. H. Matthews & Co., supra, 550 F.2d at 1215; Siegel v. Chicken Delight, Inc., supra, 448 F.2d at 48. Among the subsidiary considerations to be taken into account are “whether the amalgamation of products resulted in cost savings apart from those reductions in sales expenses and the like normally attendant upon any tie-in, and whether the items are normally sold or used as a unit with fixed proportions.” Id. Unless such factors are present, a finding of separate products is generally warranted. Moore v. Jas. H. Matthews & Co., supra, 550 F.2d at 1215. 1 Turning first to Data General’s alleged tie-in between operating systems software (tying product) and CPUs (tied product), it is clear that neither item can function without the other. However, the relevant inquiry is not whether the two items must be used together but whether they must come from the same seller. Siegel v. Chicken Delight, Inc., supra, 448 F.2d at 49. Data General’s own marketing practices refute the suggestion that the software and the CPU used in a particular computer system must necessarily be manufactured by the same company. First, Data General admits that it sells CPUs without requiring the purchaser to obtain Data General software for use therewith. Second, Data General admits that its “price lists contain separate prices for its hardware and software and Data General charges the listed prices for the items of hardware and software which are described.” Third, Data General admits that, until the summer of 1978, the persons responsible for marketing software were different from those responsible for marketing hardware. The marketing practices of others in the industry also establish that software and CPUs need not be manufactured by the same company. Numerous companies market software alone, to be used with CPUs such as Data General’s NOVA products. Numerous companies, including several of the plaintiffs, market CPUs alone, to be used with software such as that licensed by Data General. “Hundreds to thousands” of companies are engaged in the business of buying CPUs from one company and peripheral equipment from others, developing software, and then selling the integrated system as a package. At least three companies that market both software and CPUs make their software available on an “unbundled” basis — i. e., without also requiring the purchase of their own CPUs. In sum, with respect to the subsidiary consideration of whether software and CPUs are “normally sold or used as a unit with fixed proportions,” id. at 48, the undisputed material facts establish that they are not normally sold as a unit. They need not be manufactured by the same company and they are frequently sold separately by Data General and by other computer companies. Neither are they normally sold in fixed proportions. Although a CPU can only operate with one software program at any one time, there are several different software programs that may be used with any particular CPU. With respect to the subsidiary consideration of whether the bundling of software and CPUs results in “cost savings apart from those * * * normally attendant upon any tie-in,” id., Data General claims that such cost savings are attributable to its coordinated research and development (“R&D”) efforts. However, the record lacks factual support for that contention. Data General establishes beyond dispute that joint R&D yields technological benefits in the initial design and gradual perfection of both CPUs and related software. Yet there is no factual showing, beyond vague and conclusory references to “cost savings” and “lower costs,” of measurable economic benefits attributable to joint R&D. Moreover, there is no showing that any of the asserted benefits of joint R&D would be sacrificed if Data General were to offer its software apart from, as well as together with, its CPUs. Inasmuch as plaintiffs seek not to prevent bundling but to make unbundling an additional option, Data General cannot, as a matter of law, support its single product argument by suggesting that its costs are lower because CPUs and software are developed together than they would be if they were developed separately or if Data General were forced to develop software so that it could be used with other companies’ CPUs. The question is not whether joint R&D is more economical than separate R&D, but whether joint R&D calls for joint marketing. The record is barren of any factual support for an affirmative answer to that question. Thus, in light of the undisputed material facts in the record, the Court is compelled to conclude that software and CPUs are separate products. Data General attempts to circumvent that conclusion by contending that customers prefer to obtain the items from the same vendor, that its software will not function reliably with foreign CPUs, and that it is extremely difficult to service its software when used with foreign CPUs. Although these considerations are relevant to the ultimate determination of whether the alleged tie-in is unlawful, the governing case law in this circuit takes them into account as affirmative, business justification defenses rather than folding them into the separate products issue. Each of Data General’s contentions will be fully discussed in section IV, E, infra. In order to satisfy the first element of an unlawful tie-in, plaintiffs must establish not only that Data General markets two separate products but that it requires customers to purchase both of them pursuant to a tying scheme. In this case, the crucial issue with respect to the first element is whether software and CPUs are distinct products. The existence of a tying scheme is virtually undisputed. Data General admits that it licenses its software under a Program License Agreement that restricts the use of such software to a “designated” CPU, and that, with two exceptions not relevant to this case, Data General will designate only its own CPUs for use with its software. Plaintiffs further contend that Data General reinforces and expands this basic tie-in by requiring customers to purchase a minimum amount of its memory and peripheral products in order to obtain its software. Although customers may avoid this “minimum equipment configuration” (“MEC”) requirement by paying a program license charge, plaintiffs contend that the charge is so expensive that customers are forced to take the equipment specified in the MEC. Data General admits the existence of the MEC, but denies that the alternative license charge is prohibitively expensive. Even though the compulsion aspect of the MEC is a disputed issue of material fact, the existence of the basic software-CPU tie-in by virtue of the Program License Agreement remains undisputed. Thus, the undisputed material facts establish that software and CPUs are separate products subject toy a tie-in requirement, thereby satisfying the first requisite element of an unlawful tie-in. 2 The Court now turns to Ampex’ additional claim that Data General maintains a tie-in between its CPUs (tying product) and its memory devices (tied product). With respect to the function of the aggregation, the starting point is that neither a CPU nor a memory board can function independently of the other. Yet they are physically distinct items; each is located on a separate circuit board which is plugged into the chassis in which the computer system is housed. Thus, the analysis focuses on whether both must be manufactured by the same company. As in the case of software and CPUs, Data General’s marketing practices indicate that the items are separate products. Data Genera] will sell memory boards apart from CPUs (although, as described infra, it will not make initial sales of CPUs without memory boards). Data General claims that the memory boards that it sells on an unbundled basis are different from the memory boards that it sells together with its CPUs. It labels the former “add-on memory” and the latter “main memory.” However, the difference is in the name rather than in the functional capabilities of the memory board. Data General’s manager of product marketing programs stated that the memory boards that Data General sells bundled with its CPUs are “form, fit and function identical” to the boards it sells separately as add-on memory. Data General’s president stated that the two are easily interchanged: “The addressing jumpers have to be changed * * *. It involves moving a couple of wires on the [circuit] board depending on how the particular memory is designed * * *. [It takes] ten fifteen minutes.” The fact that Judge Christensen used the terms “main memory” and “auxiliary memory” in describing some of IBM’s products in Telex Corp. v. IBM, 367 F.Supp. 258, 274 (N.D.Okl.1973), rev'd on other grounds, 510 F.2d 894 (5th Cir. 1975), is not controlling here. First, Judge Christensen’s appellation appeared in an altogether different context, unrelated to the single-separate products question at issue here. Second, there is no indication that Judge Christensen was not simply adopting IBM’s terminology for descriptive purposes, without considering whether the items were functionally equivalent. The undisputed facts in the record in this case establish that the add-on memory that Data General sells on an unbundled basis is virtually identical to the main memory that it sells bundled with its CPUs. In short, Data General has not raised a genuine dispute with respect to the material fact that it sells the tied product separately as well as bundled with the tying product. As in the case of software and CPUs, Data General proffers undisputed facts establishing that many other companies that produce both CPUs and memory boards market their CPUs together with memory. Whether Ampex is among the companies engaged in such marketing practices is the subject of dispute. Although these facts may help to explain why Data General ties the sale of CPUs to the purchase of memory boards (or, perhaps, why other companies have followed suit), they are insufficient to support a finding that CPUs and memory are a single product. The relevant consideration to which these facts pertain is whether the items are normally sold or used as a unit. In light of the undisputed fact that Data General (and other companies such as Ampex) will sell memory boards separately, it cannot be concluded that memory boards and CPUs are normally sold as a unit. If the facts summarized above were to be presented to a jury, the Court would be compelled to direct a verdict in favor of Ampex on the separate products issue. In addition to the proof that Data General’s CPUs and memory boards are often not sold as a unit, the record contains undisputed facts establishing that they frequently are not used as a unit. Evidence such as the following affidavit of Billy Ray Slater, principal engineer at Forney Engineering, goes far toward demonstrating that Data General’s CPUs and memory boards are separate products: “Data General requires us to purchase at least 8KW of core memory with each NOVA 3 CPU we buy. Thus, in order to configure our systems properly, Forney must pull the Data General board out of the chassis, and replace it with a 16KW Ampex board (after which we add three more Ampex boards). This means that Forney must buy a number of Data General boards that it does not want and for which it has no use. These Data General memory boards are currently in inventory at Forney. At this time, we have 28 Data General 8KW memory boards in the storeroom.” Data General admits that some of its customers remove the memory boards that come with its CPUs and replace them with other companies’ memory boards. It attempts to blunt the impact of that fact by claiming that foreign memory boards function less reliably than Data General memory boards when used with Data General CPUs and by suggesting that the three companies specifically mentioned in Ampex’ evidentiary submissions are the exception to the general customer practice of using Data General’s memory along with its CPUs. Neither argument raises a genuine issue of material fact. With respect to the reliability argument, the record does contain a genuine dispute concerning the extent to which foreign memory boards are fully compatible with Data General’s CPUs. However, this dispute is not material to the single-separate products issue because the undisputed facts establish that some companies, such as Forney Engineering, regularly use foreign memory boards with Data General CPUs. The extent to which technological modifications may be required, or servicing problems may be encountered, is not relevant to the question whether Data General’s CPUs and memory boards are used as a unit. With respect to the argument that the three named customers are the exception rather than the rule, Data General’s evidentiary support is too conclusory and self-serving to raise a genuine dispute. Moreover, even if its evidence is accepted as fully competent and totally accurate, it is insufficient to support a finding that CPUs and memory boards are a single product. It remains undisputed that at least some customers do not view CPUs and memory boards as a single product. Other customers who use Data General’s memory boards along with its CPUs may view the items as components of a single product; but they may also buy the items together because of Data General’s conceded bundling scheme. To conclude that a tie-in is not illegal because customers acquiesce in it would be to stand antitrust law on its head. In accord with Siegel, the Court has been examining the question whether Data General’s CPUs and memory boards are “normally sold or used as a unit with fixed proportions.”. The undisputed facts in the record preclude á trier of fact from concluding that they are normally sold or normally used as a unit. The undisputed facts also preclude a finding that they are normally sold or used in fixed proportions. Data General admits that the amount of “main memory” which it has sold together with its CPUs has varied over time and that at least some of its CPUs may be used with a variety of memory boards. Furthermore, the fact that Data General sells “add-on memory” to enable customers to expand their memory capacity establishes that the amount of memory to be used with each Data General CPU is not fixed, but varies according to the particular model CPU and the particular user’s needs. With respect to the remaining Siegel consideration — whether the bundling of the two items involves cost savings — Data General argues that coordinated R&D regarding CPUs and memory boards produces lower costs. Yet Data General puts forth virtually no specific support for its conclusory statements. Moreover, it presents no evidence that the alleged lower costs have been passed along to consumers. Thus, the record lacks factual evidence from which a jury might conclude that the bundled sale of CPUs and memory boards involves cost savings apart from those normally attendant upon any tie-in. Data General also advances technological reasons, some of which involve economic considerations as well, in support of its joint sale of CPUs and memory. Data General argues that the joint development and design of the two items “is essential to assure the proper functioning of the various components of a computer in unison,” and that “[i]t would be cost prohibitive and ineffective to attempt to test and ship a computer or computer system without main memory.” Both of these arguments fail, as a matter of law, to support a single product finding in the absence of any showing (1) that the technological benefits would be lost if Data General sold its CPUs separately (as well as together with its memory boards), (2) that cost savings are passed along to consumers, or (3) that cost savings could not be reflected in price differentials between bundled and unbundled sales. In light of the three factors relevant to the single-separate product issue, the undisputed facts compel the Court to conclude that CPUs and memory boards are separate products within the meaning of Sherman § 1 and Clayton § 3. The items are physically distinct; foreign memory boards will function in tandem with Data General’s CPUs; at least some customers choose, even in the face of Data General’s bundled sales, to substitute foreign memory for the Data General memory they have already purchased; and Ampex has sold approximately 5,000 mempry boards specifically for use with Data General’s CPUs. Data General concedes that it requires customers purchasing CPUs from its regular price list to purchase a minimum amount of memory along with the CPU. However, Data General contends that that requirement is not a coercive tie-in because customers are free to purchase CPUs separately, without any memory, from its spare parts and components list. The existence of this unbundled “option” does not save the memory purchase requirement from the strictures of the antitrust laws. First, Data General makes no showing in support of its bald claim that a customer initially seeking to acquire its CPU may take advantage of the spare parts list. The only two customers whom Data General identifies as having purchased CPUs separately from its spare parts list were buying replacement CPUs and testified that they had been forced into buying undesired memory along with their original CPUs. Second, and consistent with Data General’s inability to produce evidence of unbundled initial purchases, undisputed facts establish that the spare parts list option is more theoretical than real. Data General has only published two such lists, one in 1969 and one in 1974. One of its CPU models, the NOVA 3, has never been included and its NOVA 1200 line was not included for four years. With respect to the NOVA CPUs that are listed, Data General neither advertises nor advises customers of the existence of the option of initially purchasing a CPU without memory from the spare parts list. Third, Data General’s pricing structure chills any potential use of the spare parts list for initial CPU purchases. It is less expensive to buy a CPU (and related parts such as frames and console) bundled with memory, using the regular price list, than to buy a CPU and related parts without any memory from the spare parts list. It is hornbook law that differential pricing that makes an unbundled option uneconomical will not save the bundled “alternative” from antitrust liability. United States v. Loew’s, Inc., 371 U.S. 38, 43, 83 S.Ct. 97, 101, 9 L.Ed.2d 11 (1962); American Manufacturers Mutual Insurance Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 283 (2d Cir. 1967). Thus, Data General’s requirement that any customer initially purchasing a CPU must also purchase a minimum amount of memory is a tie-in of two separate products within the meaning of the antitrust laws. The two computer cases on which Data General principally relies in its single product argument are of no avail here. In both Telex Corp. v. IBM, supra, and ILC Peripherals Leasing Corp. v. IBM, 448 F.Supp. 228 (N.D.Cal.1978), the courts were analyzing products and alleged tying restrictions that were different from those at issue here. The Telex court found that IBM’s integration of memory control functions with data processing functions was not an illegal tie-in because “the integrated control * * * is wholly optional. IBM continues to offer central processing units without integrated controllers.” Telex Corp. v. IBM, supra, 367 F.Supp. at 347. In contrast, the record in this case establishes beyond dispute that a customer initially desiring to purchase a Data General CPU has no practical option but to purchase Data General’s memory board to go along with it. The ILC Peripherals court found that IBM's integration of a head/disc assembly into its Madrid disk drive produced technological and economic benefits that were not available with unbundled equipment and reflected widespread industry practice; all relevant considerations called for the items to be deemed a single product. ILC Peripherals Leasing Corp. v. IBM, 448 F.Supp. at 232-33. In contrast, the record in this case establishes beyond dispute that all relevant considerations support a finding that Data General’s CPUs and memory boards are separate products. B The second element that must be established in order to make out a per se tying violation is that “the seller has the power, within the market for the tying product, to raise prices or to require purchasers to accept burdensome terms that could not be exacted in a completely competitive market.” Fortner II, supra, 429 U.S. at 620, 97 S.Ct. at 867. In two leading tie-in decisions rendered during the past decade, Fortner I, supra, and Fortner II, supra, the Supreme Court refined and synthesized the governing considerations to be taken into account in determining whether a seller possesses the requisite economic power. Three alternative indicia of economic power have been recognized. First, it may be shown that the seller occupies a dominant position in the tying product market. This is the most difficult index to prove and, although such proof would be sufficient to establish economic power, it is not necessary. Fortner II, supra, 429 U.S. at 620, 97 S.Ct. at 867; Fortner I, supra, 394 U.S. at 502-03, 89 S.Ct. at 1258; Moore v. Jas. H. Matthews & Co., supra, 550 F.2d at 1215. Second, it may be shown that the seller’s product is sufficiently unique that he has “some advantage not shared by his competitors in the market for the tying product.” Fortner II, supra, 429 U.S. at 620, 97 S.Ct. at 868. See also Fortner I, supra, 394 U.S. at 502-03, 89 S.Ct. at 1258; Moore v. Jas. H. Matthews & Co., supra, 550 F.2d at 1215. The Supreme Court has described such uniqueness in terms of a tying product’s legal, physical or economic characteristics that confer special advantages upon the seller: “Uniqueness confers economic power only when other competitors are in some way prevented from offering the distinctive product themselves. Such barriers may be legal, as in the case of patented and copyrighted products, e. g., International Salt; Loew’s, or physical, as when the product is land, e. g., Northern Pacific. It is true that the barriers may also be economic, as when competitors are simply unable to produce the distinctive product profitably, but the uniqueness test in such situations is somewhat confusing since the real source of economic power is not the product itself but rather the seller’s cost advantage in producing it.” Fortner II, supra, 429 U.S. at 621, 97 S.Ct. at 868, quoting Fortner I, supra, 394 U.S. at 505 n. 2, 89 S.Ct. at 1259 n. 2. Third, economic power may be shown where a substantial number of customers have accepted the tie-in and there are no explanations other than the seller’s economic power for their willingness to do so. Fortner II, supra, 429 U.S. at 618 n. 10, 97 S.Ct. at 866 n. 10; Moore v. Jas. H. Matthews & Co., supra, 550 F.2d at 1216. 1 With respect to the software-CPU tie-in, the economic power inquiry focuses on whether Data General’s software is unique under the standards articulated in Fortner I and Fortner II. The crux of Data General’s cross-motion for summary judgment is its argument that the facts in the record cannot, as a matter of law, satisfy the economic power test. Plaintiffs first claim that the copyright notices that Data General concededly attaches to its software create legal barriers from which economic power may be presumed. It is well established that economic power may be presumed where a tying product is patented or copyrighted. United States v. Loew’s, Inc., supra, 371 U.S. at 45, 83 S.Ct. at 102; United States v. Paramount Pictures, Inc., 334 U.S. 131, 157-58, 68 S.Ct. 915, 929, 92 L.Ed. 1260 (1948); International Salt Co. v. United States, 332 U.S. 392, 395-96, 68 S.Ct. 12, 14-15, 92 L.Ed. 20 (1947). In the above-quoted passage contained in both Fortner I and Fortner II, the Supreme Court reaffirmed the concept that barriers erected by patent and copyright law may confer the requisite economic power. However, the Court’s emphasis in Fortner II upon the factual showing necessary to prove economic power serves to highlight some significant subtleties in the long-standing rule. Notwithstanding implied suggestions to the contrary, the sole fact of the existence of a copyright notice has not been held to be sufficient to prove economic power. In United States v. Loew’s, Inc., supra, the case on which plaintiffs principally rely, the tying items (copyrighted, popular movies) were found to be qualitatively superior to the tied items (copyrighted, little-known movies). Id., 371 U.S. at 48-49, 83 S.Ct. at 103-104. The Second Circuit has explained that a presumption of economic power arose in Loew’s not merely from the existence of the copyright on the tying products but from “the attractiveness of some of the films, as contrasted to the inferior quality of the others also required to be purchased in the package.” Capital Temporaries, Inc. of Hartford v. Olsten Corp., supra, 506 F.2d at 663. The Ninth Circuit has also indicated that the existence of a patent (or, presumably, a copyright) does not ipso facto establish the requisite economic power. In Rex Chainbelt Inc. v. Harco Products, Inc., 512 F.2d 993 (9th Cir. 1975), cert. denied, 423 U.S. 831, 96 S.Ct. 52, 46 L.Ed.2d 49 (1975), the court stated that a patentee who makes his patented product available only in conjunction with an unpatented product “runs the risk that the court may, in conjunction with the particular evidence in the case,” find an illegal tying arrangement. Id. at 1002. The court’s analysis began but did not end with the fact that the tying product was patented; the court then reviewed other facts in the record before determining that the requisite economic power had been shown. Id. at 1003. Thus, the presumption of economic power attendant upon patent or copyright protection of the tying product is not conclusive. The trier must also take note of material facts in the record which may rebut that presumption. In this case, the question whether Data General possesses economic power in the software market by virtue of its copyrights cannot be resolved short of trial. The plaintiffs have not, at this juncture, brought themselves within the factual framework of Loew’s. Although they have presented facts suggesting that Data General’s software is as desirable to computer customers as “Gone With The Wind” was to television stations, they have not shown that the CPUs Data General ties to its software are as undesirable as “Getting Gertie’s Garter.” In addition, Data General has presented conflicting factual material suggesting that its software is not particularly desirable. Moreover, Data General makes a strong case in support of its claim that a presumption of economic power is not appropriate in the context of computer software. Affidavits submitted by Data General’s experts and third parties state that copyright notices attached to computer software do not prevent others from developing functionally equivalent programs. Such statements are consistent with a recent district court decision that copyright notices on computer software protect the underlying “source program” but do not prevent others from copying the material embodiment of that program, known as the “object program.” Data Cash Systems, Inc. v. JS&A Group, Inc., 480 F.Supp. 1063, 203 U.S.P.Q. 735 (N.D.Ill.1979) (BNA); cf. Synercom Technology, Inc. v. University Computing Co., 462 F.Supp. 1003, 1013 (N.D.Tex.1978). Whether Data General possesses such economic power with respect to its copyrighted software is a mixed question of law and fact. The factual record is presently too inconclusive to permit summary adjudication in favor of either plaintiffs or defendant. The parties must proceed to trial for a determination of whether the copyright notices attached to Data General’s software bestow upon it “some advantage not shared by his competitors” in the software market. Fortner II, supra, 429 U.S. at 620, 97 S.Ct. at 868. Plaintiffs advance another ground in support of their argument that legal barriers render Data General’s software unique. They rely on the undisputed fact that Data General claims that its software is proprietary and protected by the law of trade secrets. As with respect to copyright protection, the parties dispute whether, trade secrets protection has in fact conferred economic power upon Data General. Unlike the copyright issue, it has never been held that trade secrets protection is sufficient to create a presumption of economic power. In light of both Fortner II and the inconclusive state of the record in this area, the Court at this time declines the plaintiffs’ invitation to extend the Loew’s rule to encompass the law of trade secrets. Whether Data General has in fact attained economic power attributable to the trade secrets protection of its software is a question for the jury. In addition to alleged legal barriers, plaintiffs claim that Data General’s software is protected by economic barriers rendering it sufficiently unique to satisfy the economic power requirement. In order to adapt Data General’s operating systems software to their particular needs, customers must design applications software. It is undisputed that Data General’s customers have spent many millions of dollars developing such applications software. Plaintiffs contend that these customers cannot use their Data General-dependent applications software with any other company’s operating systems software without incurring high conversion costs. This “lock-in” is said to constitute an economic barrier giving Data General economic power in the market for operating systems software. However, Data General submits conflicting evidentiary materials indicating that plaintiffs or other companies could economically develop operating systems software that would be compatible with applications software initially designed for use with Data General’s operating systems software. This raises precisely the type of factual issue which Fortner I and Fortner II suggest is more appropriately resolved after a through probe of the material facts at trial, rather than by way of summary judgment. Moreover, the Fortner decisions require plaintiffs to establish not only that Data General enjoys the economic advantage of having customers locked into its software, but also that its competitors are somehow prevented from enjoying similar advantages. Fortner II, supra, 429 U.S. at 621, 97 S.Ct. at 868; Fortner I, supra, 394 U.S. at 505 n. 2, 89 S.Ct. at 1259 n. 2. Plaintiffs contend that Data General’s software is protected by a second type of economic barrier giving rise to the requisite uniqueness. This contention is that Data General’s software is so much more comprehensive and field proven than other software that customers are deterred from shifting to other companies’ products. Plaintiffs present some evidence suggesting that Data General’s software is uniquely desirable to some customers, at least in comparison with other software currently available. Yet Data General offers evidence sufficient to dispute plaintiffs’ contentions, indicating instead that some plaintiffs’ software and third parties’ software is at least as desirable as Data General’s. This conflicting evidence creates a genuine dispute with respect to facts deemed material under the Fortner decisions. Plaintiffs argue that even if the alleged legal and economic barriers are insufficient individually to establish Data General’s economic power in the software market, the combination of the barriers is sufficient. The legal principle underlying that argument is consistent with the repeated emphasis in tie-in cases upon the particular facts in the record. See, e. g., Fortner II, supra; Fortner I, supra; United States v. Loew’s, Inc., supra. Whether the application of the principle to this case establishes the requisite economic power will turn upon the resolution at trial of the material facts presently in dispute. 2 With respect to the CPU-memory tie-in, Ampex phrases its economic power argument in terms of the alleged legal and economic uniqueness of Data General’s CPUs. However, some of its contentions pertain not to uniqueness, the second of three alternative indicia of economic power, but to the third — the acceptance of the tie-in by an appreciable number of customers. The Court will discuss the two issues separately. (a) Data General admits that it claims copyright, trademark, and trade secrets protection for its CPUs. The parties dispute the factual and legal significance of that protection. Ampex claims that the copyright notices and trademarks create a presumption of economic power. Data General submits an affidavit stating that copyrights and trademarks attached to CPUs do not prevent others from creating functionally equivalent products. Plaintiffs proffer conflicting statements made directly by Data General. The Court finds that a genuine dispute exists and that the jury must determine whether Data General’s copyrights and trademarks vest it with economic power in the CPU market. The law does not presume that trade secrets protection confers economic power. Nonetheless, Ampex makes an impressive factual showing that Data General actually possesses economic power by virtue of its trade secrets. For example, Ampex submits the deposition statement of Data General’s president expressing doubt that anyone could design a Data General-compatible CPU without infringing its claimed trade secrets. In light of the several material facts which remain subject to genuine dispute, and mindful of the Supreme Court’s emphasis upon particularized proof of actual economic power, the Court finds that the record with respect to this issue is not sufficiently conclusive to support summary adjudication. The jury will determine whether Data General’s claims of trade secrets protection confer upon it economic power in the CPU market. Ampex also claims that economic barriers render Data General’s CPUs unique for purposes of establishing economic power. First, Ampex argues that a Data General CPU is the only kind that Data General permits to be used in conjunction with its software. As noted in Section IV,A,1, supra, Data General concedes as much. However, the record concerning this issue lacks undisputed facts sufficient to establish the requisite economic power. Ampex apparently seeks to prove a derivative form of uniqueness based on the following assumptions: (1) Data General’s software is uniquely desirable insofar as competitors cannot economically offer similar software; (2) in order to use such software, customers must use Data General’s CPUs; and (3) Data General’s CPUs derive their uniqueness from the requirement that they, and only they, may be used with Data General’s unique software. This argument is sound if and only if the uniqueness of Data General’s software is established, a matter that cannot be resolved on these cross-motions for summary judgment. In short, the question whether Data General’s CPUs are derivatively unique will be answered by the jury. Ampex’ second argument with respect to economic barriers is that Data General’s CPUs possess unique capabilities. They present some supporting statements by third-party customers, but much of their factual support is self-serving “puff” by Data General employees highlighting the positive features of their products. Data General admits that there are differences between its CPUs and others on the market, but correctly states that Ampex’ evidence does not, on the present record, prove that Data General enjoys cost advantages not shared by its competitors. In addition, Data General points out that plaintiffs claim to manufacture CPUs that are functionally equivalent to Data General’s. The record contains disputed issues of material fact with respect to the alleged uniqueness of Data General’s CPUs. The jury must be called upon to determine whether the NOVA CPUs are unique within the meaning of the Fortner decisions. (b) Apart from the uniqueness test, economic power may be demonstrated by the acceptance of a tie-in by a significant number of customers. However, this is limited to situations where there are no other explanations for the willingness of buyers to accept the tie-in. Fortner II, supra, 429 U.S. at 618 n. 10, 97 S.Ct. at 866 n. 10. Ampex claims that “an appreciable number of purchasers of NOVA CPUs buy defendant’s memory boards even though those purchasers do not want, and in some cases do not use, defendant’s memory boards.” Ampex identifies eight companies that bought unwanted Data General memory boards in order to obtain NOVA CPUs. This evidence may help to support a finding of economic power, but it alone is not sufficient. The disputed factual issues concerning whether an “appreciab