Full opinion text
ORDER PER CURIAM. The judgment of the trial court in favor of Telex Corporation and Telex Computer Products, Inc. and against IBM must be and the same is hereby reversed for reasons fully set forth in the court’s opinion which will follow. In brief summary, the court does hereby: Reverse that part of the judgment of the trial court which entered money judgment against IBM. This reversal is based on this court’s determination that the trial court erred in defining relevant market or market as the term is used in the antitrust laws and within the scope of which the framework of competition, the market shares, the acts and the identity of the competitors may be evaluated and compared. This fundamental misconception affected the remainder of the court’s decision. Secondly, the judgment against IBM is reversed because of the trial court’s findings of fact as to the acts of IBM and the court’s determination that these acts were predatory and contrary to the Sherman Antitrust Act. The evidence establishes that IBM’s actions constituted valid competitive practice and were neither predatory nor otherwise violative of the antitrust acts. The judgment of the trial court against Telex based on the counterclaim of IBM which finds that Telex had misappropriated and pirated trade secrets of IBM is supported by the evidence and law and affirmed as to the liability of Telex. The damage award is reduced to $17,500,000 compensatory damages; the judgment in the amount of $1,000,000 punitive is affirmed. As modified, this judgment on the counterclaim is affirmed. We do hereby vacate the trial court’s awards of attorney fees and costs. On remand the trial court is directed to reconsider its awards of costs and attorney fees in the light of the action taken in this court. The parties are directed to bear their own costs and attorney fees incurred in this appeal. The judgment, as fully expressed in our opinion, is reversed and remanded to the district court with directions to enter judgment in favor of IBM on the Telex complaint and for award of costs and attorney fees at the trial and for the modification of judgment in favor of IBM on its counterclaim as above provided. The opinion of the court will be filed in the next several days. I. COMPLAINT AND DISCOVERY PROCEEDINGS. The appellant, International Business Machines Corporation (IBM), here appeals a judgment in favor of Telex Computer Products, Inc. (Telex), appellee, in the total amount of $259.5 million, plus $1.2 million in attorneys’ fees and costs (this latter amount was stipulated by the parties). Actual damages were determined to be in the amount of $117.5 million. This amount was reduced substantially before trebling so as to prevent Telex from profiting as a result of certain advantages obtained from unlawful competitive activities and its illegal obtaining of trade secrets of IBM. Originally the trial court had ordered damages in favor of Telex in the amount of $352.5 million, but in amended findings and judgment this was reduced as stated above. Telex has alleged in the complaint that IBM violated sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, and section 2 of the Clayton Act, 15 U.S.C. § 13, in that IBM had monopolized and attempted to monopolize the manufacture, distribution, sale, and leasing of electronic data processing equipment. The complaint was later amended to charge IBM in more specific terms with monopolization in the manufacture, distribution, sale, and leasing of plug compatible peripheral products which are attached to IBM central processing units. IBM in turn filed a counterclaim against Telex in which the latter is charged with unfair competition, theft of trade secrets, and copyright infringement pursuant to both state law and 17 U.S.C. § 101. It is alleged that jurisdiction is based upon 15 U.S.C. § 15, which makes provision for a private claim for injuries resulting from violation of federal antitrust laws. IBM’s counterclaim, sounding in unfair competition and copyright infringement, is allegedly brought pursuant to 28 U.S.C. § 1332 (diversity of citizenship) and § 1338. Following the filing of the case, it was transferred to the United States District Court for the District of Minnesota. This was for pretrial proceedings together with other cases against IBM which were then pending. A supplemental complaint was filed by Telex. This charged that IBM had violated section 2 of the Sherman Act by announcing its “Fixed Term Plan” and “Extended Term Plan” for the leasing of IBM equipment. Still other supplemental claims were filed by Telex alleging other violations and seeking an injunction to prohibit IBM from integrating memory and disk control circuitry as well as from lowering its prices on memories. The court in Minnesota issued a temporary restraining order enjoining IBM from announcing its new central processing units. However, this order was dissolved by the Court of Appeals for the Eighth Circuit. Following the completion of discovery, the instant case was remanded to the United States District Court for the Northern District of Oklahoma for trial. Further pretrial conferences were held in the District Court during February, March, and April 1973, and following waiver of a jury the cause went to trial to the court on April 16, 1973. The trial was for twenty-nine days. The District Court on September 17, 1973, issued very extensive findings of fact and conclusions of law in which it, as has been noted, entered judgment in favor of Telex against IBM. The trial court amended its findings of fact and conclusions of law and entered a reduced judgment on November 9, 1973. II. EVIDENCE PRESENTED AT THE TRIAL. The evidence established that IBM was first incorporated in 1924 and operated as a producer of office machinery and equipment. However, in the early 1950’s it entered the electronic data processing industry. It produced a research computer in 1953 and installed its first computer for use in commercial work in 1955. Telex began manufacturing electronic data processing products in the year 1959. The evidence established in the court found that the electronic data processing industry was a young, dynamic one with a tremendous amount of revenue. In 1952 its total revenues were $48 million. By 1970 its total revenues equalled $10.2 billion. The number of companies in the electronic data processing business grew from thirteen in 1952 to 1,773 in 1970. Nevertheless, IBM, although originally dominant, steadily declined. It had 64.1 per cent of the electronic data processing revenues in 1952, but only 35.1 per cent of the total revenue in the year 1970. Although IBM was recognized as an industry leader, having more revenue from the industry than any other company, it did not, according to the finding of the trial court, have monopoly power or status in the industry as a whole. At the outset it is necessary to distinguish between the general systems portion of the industry which encompasses the manufacture of the basic electronic data processing system, the essential equipment being a central processing unit. The number of manufacturers engaged in the manufacturing of the processing units increased dramatically, from three in 1952 to ninety-six in 1972. The court found that about eight or nine of these were considered principal manufacturers. In the segment of the industry involving the manufacture of the central processing units, IBM did not have monopoly power, although it was estimated by the court that its market share was about thirty-five per cent. In addition to the central processing unit, a data processing system also has a number of so-called peripheral devices which are connected with the central processing unit and which perform various special functions in the data processing system. These include information storage components like magnetic tape drives, magnetic disk drives, magnetic drums and magnetic strip files; terminal devices such as printers; • memory units, which are specialized storage units, and other similar types of peripheral components. Sometimes these devices are included in the central processing unit, that is, do not exist as external components. It is these peripheral components with which we are primarily concerned in this lawsuit. The importance of these can be judged from the fact that the court found that they constitute 50 to 75 per cent of the total price of an electronic data processing system. The term “plug compatible peripheral device” is the specific class of equipment that enters into this case. What is meant is that a producer of a complete electronic processing unit manufactures, as noted, the central processing unit and peripheral components which are geared to use on that central processing unit. Many manufacturers produce peripheral components primarily for attachment to central processing units of a particular manufacturer and so, therefore, the plug compatible peripheral device refers to a component which is functionally equivalent to the manufacturer’s peripheral device and can be readily plugged into that central processing unit. Undoubtedly it is the wide use of the IBM central processing unit that caused Telex and others to market peripheral devices which were plug compatible with the IBM unit and which could replace IBM peripheral devices which had been made for the IBM central system. The Relevant Market. The District Court found that there existed a definable market for all peripheral devices plug compatible with IBM processing units. The court further found that there were individual sub-markets for each particular type of peripheral product. In making its finding as to the scope and extent of the plug compatible peripheral, the trial court used IBM documents which found that the original entry into the market was relatively simple and easy because the manufacturer needed only to produce the peripheral device and he could copy tested IBM peripheral products. The number of manufacturers of IBM peripherals arose from two or three in 1966 to approximately 100 as of the time of trial. Telex and some eleven others were the major manufacturers of IBM plug compatible products. Originally, of course, IBM, being the only manufacturer of peripheral products plug compatible with its system, had 100 percent of the market. The court found that as other manufacturers entered the plug compatible market with IBM, the IBM share became substantially eroded and this is particularly true starting in 1968, at which time market erosion occurred first in the tape drive line followed by the disk drive line in 1969 and with continued erosion into 1970. The court considered the erosion of IBM’s market in this area as appropriate background for consideration of the IBM antitrust violations which the court concluded had occurred. The primary determination was that IBM was guilty of monopolization or attempting to monopolize, contrary to section 2 of the Sherman Act in five specific respects: 1. Announcement and institution of the 2319A disk storage facility in September 1970. 2. The announcement of the 2319B disk storage facility in December 1970. 3. The announcement of the Fixed Term Plan long term leasing program in May 1971. 4. The announcement and implementation of the Extended Term Plan, which was also a leasing plan, in March 1972. 5. IBM’s pricing policies with regard to its memory products during 1970 and 1971. The Above-Mentioned 2319A and 2319B Programs: These took place following the erosion of the IBM share of the plug compatible peripheral market. Management became even more concerned when in January 1970 the United States Bureau of the Budget notified the federal agencies that they should consider the possibility of using the less expensive non-IBM plug compatible peripheral devices with the IBM central processing unit. IBM’s management committee thereafter designated peripherals as a key corporate strategic issue which was their way of designating the problem as a key and important one. A Peripheral Task Force, headed by H. E. Cooley, Vice President of IBM’s Systems Development Division, was created in March 1970. The purpose of this was to examine the competitive threat to IBM of plug compatible suppliers. Judge Christensen found that one of the purposes of this was to study and recommend plans and product strategies to impede the growth of IBM’s plug compatible competition and further found that the task force made in-depth analyses of various plans and product strategies, each having as a significant purpose containment and retardation of the growth of IBM plug compatible competitors. In response to the market erosion problem, IBM first produced the Mallard Project announced on September 23, 1970, as IBM’s 2319A disk storage facility for the 145 system 370 computer. The court apparently construed this effort as the launching of a so-called fighting ship even though IBM considered it a competitive effort responsive to competitors’ inroads. The court looked at it, however, as being specifically designed to contain plug compatible disk competition and to maintain control of the plug compatible disk market for IBM. It was characterized as unlawful, predatory conduct. The product which IBM had before the 2319A was the 2314 disk drive, but its competitors had developed a 2314-equiva-lent disk drive, plug compatible with IBM’s central processing unit. They were marketing it at a substantially cheaper rate than an IBM 2314. The IBM 2314 disk drive was produced in three basic configurations or “boxes”; the 2312, a box containing one 2314 disk drive; the 2318, a box containing two disk drive spindles; and the 2313, a box containing four disk drive spindles. The 2319A was basically a 2313 box with one 2314 spindle removed, leaving a three-spindle box. Unlike the 2312, 2313, or 2318, or the competitors’ plug compatible equivalents, the 2319A could only be connected to the IBM System 370 CPU through an integrated file adapter (IFA) built into the CPU itself, rather than through the formerly used external disk control unit. Except for this difference in the way it was connected to the CPU (at that time not duplicated by IBM’s competitors), the 2319A was the functional equivalent of three 2314 disk drive spindles; that is, a 2312 box and a 2318 box. The 2319A using the integrated file adapter was priced substantially below either the IBM three-spindle configuration having the external disk controller or the non-IBM plug compatible three-spindle unit. The total rental for the 2319A was $1,550 as compared with a monthly charge of $1,420 for the old external control unit plus $1,455 for three 2314 spindles, a total of $2,875. Not only did this furnish an incentive for use of the 2319A rather than the older IBM disk configurations, it furnished an incentive for utilization of the 2319A rather than the competitors’ plug compatible equivalents to the 2314, since it was priced below the price then being offered by IBM’s plug compatible competitors, including being $100 per month per spindle below Telex’s current price for equivalent disk drives. However, the 2319A price was not below production costs and IBM anticipated profit on the item to be in excess of 20 per cent. Following the announcement of the 2319A program in September 1970, a second peripheral task force was organized in October 1970 to further analyze competitors in the plug compatible disk drive area. The analysis included Telex which was determined to be a viable and aggressive competitor, although its manufacturing costs were 10 to 15 per cent above IBM’s. It is to be gleaned from the trial court’s Finding 80 that Telex’s greatest problem was the impact of IBM which thereby shortened product life. The task force determined that Telex and Memorex were IBM’s biggest competitors in the plug compatible disk drive area. It studied likely impact on these two companies of various possible price cuts, forecasting the price reactions which Telex and Memorex could be expected to make and the impact of such price cuts on the profits and revenues of Telex and Memorex. On December 14, 1970, the 2319B merchandising program was announced. This enabled price cuts which were not possible with the 2319A to be extended to a larger body of users having the IBM system 360 computer. The 2319B was a box containing three 2314 disk drives, utilizing an external disk controller designed for 2314 units being attached to the CPU rather than using the internal IFA controller to which the 2319A had to be attached. Here again the prices were reduced in a very substantial amount, an amount which was below any of its plug compatible disk competitors. Although this price cut was not below cost, the court found that it did not represent any technological advance over former 2314 configurations, and it also found that it was a predatory action which was designed to maintain for IBM a 94 per cent share of the plug compatible disk drive market which it controlled at the time of the announcement. In December 1970, according to the finding of the court (undoubtedly this is supported by the evidence), IBM eliminated its “additional use” charges on all disk drive devices (Numbers 2314, 2319 and 3330). This amounted to a further price reduction on IBM disk drives. The court found that the 2319A and B programs affected the profits of IBM’s competitors, but they nevertheless were able to respond. They made price cuts and adopted marketing techniques which resulted in continuing erosion of IBM’s market share. Telex’s volume increased substantially from November 1970 to December 31, 1972. Indeed, IBM maintains that Telex actually increased its profits over a forecast of some $14 million. Thus, the court’s characterization of IBM’s 2319A and B programs as being predatory was based on the court’s view of the intent with which these were carried out rather than on the actual results which were achieved. The Long-Term Leasing Plans: The trial court also concluded that IBM’s Fixed Term Leasing Plan together with its Extended Term Leasing Plan announced in May 1971 and March 1972, respectively, also constituted predatory conduct violative of the antitrust laws. However, IBM maintains that its leasing plans were lawful competitive responses to the leasing plans which were then being offered by most of its competitors. Although the trial court characterized the leasing plans as being predatory, at the same time it recognized that IBM was facing the loss of considerable systems and peripheral business and that some such plan was necessary. The court also recognized that these leasing plans were not per se invalid; that they might in a different context have been justified. But the court in Finding 88 expressed the viewpoint that these long-term leasing plans were invalid in the light of IBM’s dominant market position in the plug compatible business. The IBM Fixed Term Plan provided a 15 per cent reduction in purchase price plus one and two year leases on certain IBM disks, tapes, and printers, with an 8 per cent monthly rental discount for one year leases and a 16 per cent discount for two year leases. It provided stringent penalties in the event of termination. The termination of a two year lease during the first twelve months brought about a penalty of five times the monthly rental charge; the termination of a one year lease or of a two year lease during the second year caused a penalty of two and one-half times the monthly rental charge. Nevertheless, the Fixed Term Plan reduced IBM’s prices substantially. However, Telex’s prices were actually lower than those of IBM because Telex often bargained concessions which reduced the prices below their lists. IBM’s Fixed Term Plan leases involved plug compatible peripheral products competing with plug compatible product equivalents. The chief executive officer of IBM, Mr. Carey, testified that the peripherals were subject to the fixed term plan because of the necessity for either reducing prices or going out of business “and so they were logical candidates . . . ” But in June 1971, IBM’s competitors controlled only 14.5 per cent of the disk market and 13.7 per cent of the tape market plug compatible with IBM’s central processing units. One of the contentions of Telex (argued in its brief) is that all of the tapes, disk drives, printers, and controllers included in the Fixed Term Plan were those which were subjected to plug compatible competition. Those items which were not subjected to plug compatible manufacturer competition were not included in the Fixed Term Lease program. Thus, Telex concludes that it was a strategy which was designed to destroy the competition. Events Preceding or Leading Up to the Long-Term Leasing Plan: IBM’s 2319B program which was announced December 14, 1970,. failed to retard the growth of the IBM plug compatible competition during the first quarter of 1971. After the announcement, Telex and the other plug compatible manufacturers had reduced their own prices below the IBM 2319B price. So at the first meeting following the lowering of prices by the other equipment manufacturers, a study was undertaken of possible alternatives to the rental plan of IBM. During the year 1971 the competitors installed 3,006 spindles equivalent to IBM’s 2314. In ensuing months even more were installed. The Management Committee studying the problem estimated that IBM could lose over one-half of its lease base in the disk drive market and could lose up to 20 per cent of its tape lease business to its competitors and that by 1976 it could lose 1,500 printers to Telex. During this period of time, Telex was gaining considerably in connection with the plug compatible printers and Telex offered a price advantage in that their product could be used without limit. It was also pointed out in the District Court’s findings that in 1970 and 1971 the then national recession together with inflation had a severe effect on IBM. At that time IBM offered its equipment either for outright sale or for lease on short-term leases cancellable on thirty days’ notice. Due to the economic situation, many of IBM’s rental customers were returning their equipment. The competitors, however, were not experiencing this because their equipment was leased for longer periods of time and with termination charges in the event of cancellation. Furthermore, the competitors’ prices were lower and this placed even more pressure on IBM’s leasing business. Consequently, IBM’s sales of EDP were down 50 per cent in 1970 and were the worst in its entire history in 1971. In the first quarter of 1971, a study was prepared of the plug compatible competition by a Mr. Whitcomb of IBM, who concluded that the plug compatible manufacturing was growing in volume and scope and that this posed a serious threat to IBM’s leasing of peripheral equipment. It was estimated that by 1976 IBM would lose 19 per cent of the plug compatible tape market and 28.8 per cent of the plug compatible disk market. The evidence also showed that notwithstanding the 2319 price cuts, Telex was still a strong competitor. Based on all of this, IBM promulgated a policy to do what was necessary in order to swallow whatever financial pills were required in order to reverse the trend so that the business would be in a growth posture. At an IBM meeting held on April 23, 1971, a Blue Ribbon Task Force was appointed. Soon -thereafter, the Task Force reported, recommending drastic price cuts amounting to as much as 50 per cent on 2314 and 2420 disk drives, but this was rejected by the Management Review Committee in favor of development of a long-term leasing approach. The Fixed Term Plan was adopted as a result of this (on May 25, 1971). Effect of the Fixed Term Plan: The plan called for prices of the competition to be undercut to a considerable extent. At the same time, IBM was to face a reduction in its profits, at least for the first two years. A very considerable increase was contemplated in 1975. IBM’s central processing units were not placed under the Fixed Term Plan. Rather, IBM raised its prices on the central processing units during that period of time. The District Court found that IBM’s central processing units price increases were designed to offset the decrease on disk, tape, and printer products placed under the Fixed Term Plan. The basis for this finding of the court was an IBM officer’s testimony that the net effect of the Fixed Term Plan and price change would be a wash insofar as business volumes were concerned. The District Court was not unaware of the fact that IBM’s competitors had offered lower prices for a number of years prior to the Fixed Term Plan in 1971. They also had previously offered long-term lease plans with cancellation penalty clauses similar to the lease plans of IBM. Notwithstanding this, the court considered it necessary to analyze IBM’s adoption of a long-term lease program solely in the light of IBM’s dominant market position. The evidence was ambivalent as to the reasons which motivated the Management Review Committee’s review of the Fixed Term Plan. Nevertheless, the court noted that there was an abundance of documentation concerning the views, computations, studies, forecasts, and recommendations of lower managerial personnel within the IBM organization. The District Court determined that in the absence of full documentation of the intent of IBM officers, it was to be inferred that, in adopting some of the task force recommendations, top management was also embracing the rationale and reasoning underlying those recommendations. The court stated: “Moreover, there is considerable direct evidence on vital points to indicate that top management itself did in fact subscribe to the anticompetitive views and objectives of lower echelons.” The court concluded that: “IBM’s Fixed Term Plan was generated and implemented at the time it was with the primary intent and purpose of suppressing plug compatible competition and to maintain its monopoly power in the plug compatible disk, tape and printer markets and the general plug compatible market for peripheral devices.” IBM’s Fixed Term Plan successfully contained the growth of plug compatible competition in the peripheral device market. After June 1971, the plug compatible manufacturers’ share of the disk market remained within 17.5 per cent and its share of the tape market did not exceed 15 per cent. But the competitors made a price reduction in response to the Fixed Term Plans. Despite the response of the competition to IBM’s Fixed Term Plan, there was some inability to successfully compete with the IBM Fixed Term Plan. Mr. Rodgers, IBM’s Director of Marketing, estimated that the Fixed Term Plan reduced the order rate of the competitors by 50 per cent. The records of IBM establish that 90 per cent of its new disk and tape products were being installed under the Fixed Term Plan and that customer acceptance of it was extremely high (95 per cent). IBM’s internal documents described the anticipated consequences of the Fixed Term Plan upon the competition as follows: “The competitor will offer long-term leases similar to IBM’s with the base rental initially 10% below ours and declining 5% per year. The competitor will face a new environment; however, in that the bulk of his early installations will represent conversions from PC or IBM 2314’s rather than plug for plug replacements of installed 330’s. This will be due to the user’s reluctance to break the IBM contract due to the penalty payment required. As a result, the competitor will face harder selling and harder installation since he has not yet shown the capability to provide systems, conversion, and application support.” A confidential report issued in December 1971 showed that since the announcement of the Fixed Term Plan there had been a 62 per cent decrease in the competition tape sales rate and in the 4.5 months following the Fixed Term Plan announcement, the competition sales rate for disk drives was off 48 per cent as against the first five months of 1971. IBM’s • position at trial was, however, that the Fixed Term Plan did not adversely affect the growth of the competition, pointing to the Telex annual report to shareholders of June 18, 1971, as well as to evidence at the trial showing that Telex products had grown substantially during the period in question. IBM also has argued that there were other reasons for the Telex losses, including loss of business to companies other than IBM. A Telex report evidencing an investigation made in March 1972 (by Howard Twilley, an administrative assistant to Telex’s Chairman of the Board), said: “The purpose was to determine to what extent IBM’s Fixed Term Plan was responsible for cancellations of Telex orders and to make preliminary contact with potential credibility witnesses. “Of twenty customers surveyed, only three admit that FTP was a significant factor influencing their decision to cancel Telex in favor of IBM. Furthermore, these three list other reasons in conjunction with FTP . No one indicated a willingness to be a witness although this point was not pursued vigorously for fear of damaging future customer relationships. “Additionally, this may be a dangerous approach since IBM could probably produce witnesses to the effect that no FTP agreement was signed because the customer knew that Telex would be offering an IBM replacement in the near future, probably at less cost. Survey found that Thiokol Chemical took a monthly lease on IBM 3420’s and that Amoco Production did the same in anticipation of replacing them with Telex 6420’s.” (DB 117; E 2886-2887). In March 1972, IBM announced its Extended Term Plan, a variation of the Fixed Term Plan. Notwithstanding this, Telex’s volume of installations rose remarkably following both the promulgation of the Fixed Term and extended Term Plans. IBM also maintains that the trial court' ignored its own findings when it found predatory conduct in IBM’s long-term leases. These findings were to the effect that: 1. The terms of the IBM long-term leases were reasonable and were commonplace commercial agreements. 2. The leases actually reduced IBM’s costs. 3. Prior to IBM’s Fixed Term Plan announcement, most of IBM’s competitors had similar lease plans. 4. IBM’s leases were shorter than the mandatory leases which had been judicially approved, notwithstanding that the lessor had been determined to be a monopolist. The IBM File Adapter: The trial court rejected Telex’s claim that the reduction of the price by IBM of its integrated file adapter for 3330 disk drives constituted a tying arrangement between the file adapter and the 370/135 central processing unit. A particular complaint was focused on the fact that the integrated file adapter or controller could be purchased at a lower price than the independent one. The basis for the trial court’s rejection of Telex’s contention was that there existed ample evidence to show that the integration represented a valid technological innovation at a decreased cost and that there was no apparent predatory intent. The Integrated Memory: The court took a like view to that which it adopted in connection with the file adapter in holding that the integration of the memory component in the IBM central processing unit 370/158 and 370/168 was an adaptation, the primary purpose of which was to achieve cost and performance improvements made possible by reduction in size of the memory component. The court said that the dominant justification was the more efficient performance and cost reduction. When it came, however, to the FET (Field Effect Transistor) monolithic memory, the court said that the action of IBM in lowering the price of this unit was to erect a barrier to entry of competitors in this particular area. Documents of IBM showed that as early as 1968 IBM recognized that the competition had begun offering memories at a price substantially lower than the IBM price. A study force had examined the problem in 1969-70 and had concluded that the competition would become viable unless IBM’s rental price were below $6,000 per megabyte of FET memory. Subsequently, a memory task force was formed in March 1971 to develop a strategy in conjunction with IBM’s announcement of its two new CPU’s, Olympus and Pisces. Prior to the formation of the task force mentioned above, there had been a report of the Management Review Committee in February 1971 which said: “The MC is convinced that memory is our next great exposure. In May 1970, there were five competitive memories installed on our equipment. Presently (nine months later) there are 26 main memories and 33 large core storage memories installed, with 13 on order and over 200 proposed. This is the kind of rapid acceleration which we experienced in the tape and disk area. As you know, peripherals, including memory, is a Key Corporate Strategic Issue and the MC plans to spend considerable time on the subject.” In an earlier Management Review Committee meeting it had been said (by Mr. Carey) that there was not an appropriate technical solution to the problem and, therefore, that repricing was the only alternative available. There was testimony at the trial from a member of the task force studying this, Mr. Hoehfeld, that the task force’s purpose was to analyze various alternatives open to IBM in order to stem the potential threat from plug compatible memories. A recommendation made in June 1971 to the Management Review Committee by IBM’s top executives was to reduce the price of the memory and increase the price of the central processing unit accordingly. This viewpoint was reviewed by the Kenyon House Task Force which reached a similar conclusion, in other words, recommending that the rental price for memory be reduced and that the rental price for the central processing unit be increased. The announcement made on August 2, 1972, with regard to the new central processing units 370/158 and 370/168 adopted this approach. Thus, memory prices were lowered to $5,200 per month rental per megabyte, this rental being less than the amount a potential competitor would need to charge in order to enter the market. At the same time, the CPU rental prices were raised in a proportionate amount. The trial court found that the central processing unit price was raised from $20,600 to $30,700 on the new units, a price which the court also found to be higher than the amount necessary to reflect improvements. On the 370/168, the raise was from $36,400 for the prior model to $48,600 on the new one which also constituted an increase which did not accurately reflect the improved performance. At trial Hochfeld testified for Telex that when IBM dropped its memory price to $5,200 rental, it was impossible for a potential competitor to enter the field and to compete successfully with IBM. Unquestionably the increased price of the central processing units coincided with the decrease in the price of the memory units. However, the low rental price on the memory did not prevent Telex and other competitors from entering this market with units designed to rent for prices below the $5,200 per megabyte per month. IBM here contends that the trial court was in error in holding that these price reductions were invalid because the products were new technologically and were forty times smaller than the core memory which plugged into the old unit. The manufacturing cost of this was also smaller. While the court recognized that the price of the new memory unit charged by IBM was based on a 20 per cent profit margin and was therefore reasonable, the court concluded nevertheless that it was predatory. The effort to reverse the court’s finding is based on its alleged failure to take cognizance of the fact that the product was a new one which was much more efficient than the old and that the studies which predicted the impossibility of competitors entering the market were based not on the new technology but, rather, on the old more expensive core memories. In actuality, the evidence of IBM showed that Telex could produce these at $2,700 per unit or $8,000 for three units. IBM’s further contention is that Telex suffered no actual damage since it was unable to build the memory without illegally obtaining IBM’s trade secrets. There were other reasons why, according to IBM, Telex could not produce memories at the times in question inasmuch as they could not get the parts or the material; this was not the fault of IBM. On appeal IBM has continued to argue that its increase of price on the new central processing units was not linked to the reduction of the memory price, pointing out the vast amount of capital which was needed to develop the new central processing units and the very substantial improvement of the new machines over the older units, including many new features, and new and different parts. For these reasons, IBM contends that the prices of both the CPU’s and the memories were reasonable, plainly profitable, and independently justifiable. III. THE AWARD OF DAMAGES TO TELEX BASED ON ITS COMPLAINT. The original award of damages was in the amount of $359.2 million. However, in the amended opinion this amount was reduced. The court was seeking to correct what it regarded as its original error which was reducing the award after trebling instead of before. The amended award was in the total amount of $259.5 million plus $1.2 million in attorneys’ fees and costs. The particular elements of damage which the court found were: 1. $70 million attributable to loss of market share which the court held Telex would have retained had it not been for the illegal acts of IBM. 2. $39 million in loss of rental profits which Telex would have earned on its leases had it not been forced to cut prices because of IBM’s illegal acts. 3. $8.5 million in loss of sales profits which Telex would otherwise have earned on specific sales had it not been forced to lower prices because of IBM’s illegal acts. The court’s initial figure was adjusted prior to trebling. The adjustments were as follows: 1. Reduction of actual damages by $6 million because of the curative effect which would result from the injunctive relief awarded. 2. An additional reduction of $17.5 million, representing the “best available quantification” of advantage obtained by Telex through illegal activities in establishing its market position upon which antitrust damages were initially determined. 3. ' A further reduction of $7.5 million, representing an approximation of further unlawful competitive advantage obtained by Telex through misappropriation of IBM trade secrets, this amount not being quantified in the direct proof of findings, but which the court felt should operate to reduce damages prior to trebling. Reduction of the initial $117.5 million by $31 million resulted in adjusted damages of $86.5 million. The court then trebled this figure under the provisions of 15 U.S.C. § 15, resulting in total damages of $259.5 million. Underlying Theory of the District Court in Its Award of Damage to Telex: Having found and concluded that IBM had violated the antitrust laws, the court awarded damages on the following bases: First, Telex established by a preponderance of the evidence the fact of injury, in that IBM’s violations had produced substantial impact to the business of the plaintiffs. The court was satisfied that the impact was sufficient to satisfy plaintiff’s burden of proof. Secondly, the court acknowledged that the specific amounts of damages had not been clearly demonstrated by Telex and that the evidence was insufficient to justify the award of the amounts demanded by Telex. Third, the court applied the principle that where a plaintiff has established injury in fact, it need not under the law establish the specific amount of damages with certainty. The court rejected the doctrine or approach that it was necessary to tie damage directly and specifically to antitrust violations in specific amounts. Rather, the court used a broad-gauged approach of fair and reasonable approximation. Due to the complexity of the case, the court noted the impossibility of quantifying the damages in detail. It concluded: “ . . . Notwithstanding the difficulty involved, I have found that there is reasonable basis in the evidence to fairly approximate the damages to which plaintiffs are entitled as proximately caused by the unlawful acts and conduct of the defendant.” Fourth, as a justification for its decision, the court stated that its function was similar to that of a jury determining the amount of damages. The court recognized the requirement of Rule 52(a) that the court must make specific findings of fact, but concluded nevertheless that approximations of total damages are more appropriate than detailed and minute findings allocating portions of claims going to make up the finding of the ultimate fact of damage. In utilizing Telex’s damage evidence three points were emphasized: (a) That Telex’s evidence was good faith information, not prepared merely for the purposes of litigation. (b) That Telex had presented the court with the best information available. (c) That the inability of the court to determine damages specifically was due to the factual complexities which resulted from IBM’s violations. Because of this, the court concluded that the burden of the uncertainty had to be shouldered by IBM. The $70 million loss of market share was estimated on the basis that Telex was entitled to receive damages for loss of profits from the market share of plug compatible peripherals which it would have acquired had IBM not interfered (by, according to the court, committing antitrust violations). To determine what Telex’s market share might have been, the court relied on two Telex market forecasts. One was prepared in November 1970 and the other on January 12, 1972. The difference between these two forecasts represented the segment of the market share which Telex had lost in the intervening period. At the same time, the court said that these two forecasts should not be given full face value. Telex itself had, according to the court, failed in its efforts through its own fault. Taking this into account, the court awarded damages for loss of market share in the amount of $70 million. The court did not explain how it arrived at this number. The sum of $39 million was awarded to Telex to compensate it for its loss in rental profits because of its having been forced to cut its prices by IBM’s reducing its prices. Here again, the court discounted the estimated loss to make an allowance for factors which do not involve IBM’s violations of the antitrust laws and came up with the sum of $20 million on rental profits prior to April 1, 1972. The sum of $19 million was attributable to lost rentals reasonably to be anticipated after March 31, 1972. On loss of sales profits, Telex claimed the sum of $11.3 million. This again was allegedly due to the lowering of sales prices and hence its profits. The losses included $8.5 million lost profits in a sale to Pepsico, $1.3 million on the Hudson disk transaction and $1.5 million on the Transamerica disk transaction. In response to Telex’s evidence, IBM introduced evidence that many other variables other than IBM’s activities could have caused a decrease of Telex’s profits in these sales. Damages were awarded in the amount of $8.5 million, a reduction from Telex’s claim. This again was another approximation. The reductions referred to above in the award prior to trebling were: 1. The adjustment of $6 million representing the correct or diminishing effect of the injunctive relief granted against IBM on the damages otherwise recoverable. 2. A reduction of $17.5 million representing Telex’s trade secret violations against IBM. This $17.5 million involved losses which IBM suffered as a result of Telex’s conversion of IBM’s trade secrets. The reason for deducting these amounts from the damages on the complaint was that Telex’s projected market share upon which damages were based included Telex’s competitive advantage derived from misappropriation of trade secrets. The court (did not feel that this loss of competitive edge was properly compensable because it was not based on a violation of Telex’s legal rights. There was a further reduction in the amount of $7.5 million prior to trebling representing additional unlawful competitive advantage realized by Telex through misappropriation of IBM’s trade secrets. This also was a generalized amount. The court gave no indication as to how it arrived at this. IV. IBM’S COUNTERCLAIM AGAINST TELEX AND THE DAMAGES AWARDED TO IBM. The District Court’s findings and conclusions described a pattern on the part of Telex during the whole period in question of manufacturing products which were plug compatible with the IBM central processing units. According to further findings of the trial court, these were almost exact copies of IBM peripheral products. Telex would introduce these on the market to compete with the IBM devices. This practice had been followed by Telex starting in 1966 in the tape drive area and in 1969 in the disk drive area. Telex had also marketed copies of IBM memory and printer devices. These Telex products were priced substantially less than the price of the IBM products. Telex sought to introduce these copies to the market as soon as possible after the IBM products had been introduced. Telex was able to keep abreast of IBM in the production of IBM’s copies only by the hiring of employees or former employees in order to ascertain what IBM was doing or planning to do. This pirating of information was carried out by the employment of key personnel capable of developing the Telex technology in IBM peripherals on the basis of IBM designs. There were numerous such employees hired by Telex. The District Court stated that the number of IBM “Statistically, the number of IBM employees hired by Telex has not been impressive. Of those personnel who had formerly been employed by IBM some of them were employed by Telex after intervening employment by third parties and some were employed immediately after the termination of their employment at IBM. On March 31, 1970, Telex employed 50 engineers of whom one was a former employee of IBM. On March 31, 1971, Telex employed a total of 88 engineers, of whom 18 were former IBM employees, 8 of these were employed directly from IBM. On March 31, 1972, Telex employed a total of 145 engineers, of whom 31 were former IBM employees; 13 of these were employed employees so hired was not statistically significant, but the employees who were hired were key personnel. The court said that the IBM employees had furnished an important and vital part of Telex technology and development. The court then went on to say that in March 1970, for example, Telex hired Jack James, who possessed substantial confidential information about IBM’s future production plans. He had been approached by an employee of Telex regarding the possibility of resigning from IBM and taking a position with Telex. The court went on to find that James had access to confidential data relating to IBM products under development. He was furnishing information to Telex even while on IBM’s payroll. The court in Finding 138 outlined the various IBM products that James had had access to and delivered to Telex. These included confidential information concerning IBM products under development and its future plans and forecasts, especially as to IBM’s Plan 25 Forecast and its SCAN Forecast. James copied large amounts of information from IBM confidential documents and delivered this to Telex when he arrived there. Telex was allowed, as a result, to conform and adjust its production strategy, entering many new production areas and offering a much broader production line in peripherals in 1970 than it had offered in 1969. According to further findings of the court, this constituted deliberate misappropriation by James in violation of his directly from IBM positions. On March 31, 1973, Telex employed a total of 129 engineers, of whom 12 were former IBM employees; 3 of these were employed directly from IBM. The remainder of Telex’s engineering staff was employed after no previous IBM experience. They were obtained either directly from schools or with work experience from self-employment or from some 60 other employers. One of the principal sources of engineering personnel was RCA, which abandoned its electronic data processing venture in 1971; a total of 32 of Telex engineers employed as of March 31, 1973, came to Telex directly from RCA. On March 31, 1973, Telex had a total employees of 1,929, of whom 152 had former IBM employment experience.” agreement with IBM not to disclose such confidential information. Telex knew that it was confidential and that it had been unlawfully appropriated or should have known. The court further found that Telex officials fully expected and intended James to appropriate this information. One particular item furnished by James was information about IBM’s new Aspen 3420 tape drive announced by IBM in November 1970. Based on this information, Telex decided to produce a copy of the Aspen and in furtherance of this hired Howard Gruver, an IBM engineer in charge of the Aspen control unit development project. Gruver, the court found, disclosed IBM trade secrets in violation of his agreement with IBM not to do so, whereby Telex was able to produce an Aspen-type product by November 1971, ten or eleven months, according to the court, sooner than it would have been able to do without the copy and the information. The court determined that the misappropriation resulted in Telex’s unjust enrichment in the amount of $4.5 million in monthly rentals of the Aspen tape units and an additional $3 million in other losses. Other products which were expanded as a result of this kind of practice was the disk file subsystems and IBM Merlin 3330 disk file subsystem which was announced in 1970. In November 1970, Telex hired John K. Clemens, who had been IBM’s engineering program manager for the Merlin Project. Clemens was fully informed of the aspects of this program, including the development and design, manufacturing, sales, and forecasts. He was hired for the purpose of developing a Merlin-type disk storage system for Telex. In addition to a substantial salary and stock options, Clemens was given a $500,000 bonus if he produced a Telex Merlin-type system for delivery to a Telex customer prior to November 30, 1972. Telex also set out to hire other key personnel in connection with IBM’s Merlin project offering them high salaries, bonuses, and stock options. Telex needed to develop this in eighteen months, a schedule which the court found would have been impossible without the thefts since it had taken IBM five years to develop the project. Telex knowingly and intentionally used the IBM trade secrets and hired a number of new employees in order to bring this about. The court concluded that Telex succeeded in misappropriating IBM’s trade secrets and appropriating them into the Telex 6830. The trial court also found that Telex had misappropriated the source code to IBM’s “FRIEND” Version 2 diagnostic program, a coded computerized program utilized in the diagnosis, checkout, and debugging of various devices in a computing system. Necessary to the use of the “FRIEND” device was the source code. IBM considered it as confidential property and it was secured carefully. The court found that one of the IBM employees hired by Telex took a copy of the source code with him to Telex and that Telex used this misappropriated material in order to develop a Merlin-type disk file system. The court .further found that when Telex sold that project to the Control Data Corporation in May 1972, it also sold the “FRIEND” source code to Control Data for $500,000. The trial court also found that Telex had used the same unlawful conduct and practices in obtaining memory products, communications controllers, and central processing units. However, the court was unable to determine the amount of damages sustained by IBM in these areas or the amount of unjust enrichment to Telex. As to the statute of limitations, the trial court held that it did not apply because Telex had fraudulently concealed the fact that they had misappropriated IBM’s trade secrets. The court did find that as a result of Telex’s misappropriation efforts IBM was compelled to spend much greater amounts of money for security protection than it would have had to spend had Telex not been misappropriating its secrets. The court determined that the damage to IBM resulting from this was $3 million. Also, the court found that as a direct result of Telex’s illegal activities IBM had to itself manufacture certain particularly sensitive products parts; that it was unable to contract out this work. This produced damages to IBM in the amount of $400,000. It was also found by the court that in its misappropriations and related conduct, Telex’s conduct was planned, deliberate, and wilful, whereby IBM was entitled to exemplary damages in the amount of $1 million. In Findings 178-187, the District Court detailed the evidence pertaining to Telex’s established copyright violations. The court found that Telex had copied all or substantial portions of the IBM manuals dealing with the operation and servicing of IBM’s tape drives and tape subsystems, disk drives, tape controllers, and central processing units. After copying these manuals Telex distributed them with its IBM equivalent equipment. All of these manuals were protected by valid copyrights and the portions copied were not trivial. V. POINTS ADVANCED BY IBM. A. Relevant Market: The main quarrel of IBM with the court’s determination of the relevant market is that it is limited mainly to peripheral products plug compatible with IBM’s equipment. It encompasses only part of the peripheral equipment marketed by Telex and the other plug compatible manufacturers. It fails to include the peripheral equipment market by systems manufacturers other than IBM. Also, the court zeroed in particularly on these products: tapes, disks, printers, memories, and communications controllers, finding each to be a relevant sub-market. Memories are included, notwithstanding that the court regarded them as outside the definition of peripheral products. IBM also complains that although the court found that users of computers can alternate between printers, terminals and computer output microfilm devices, it did not indicate which of these should be included within the printer submarket, and notwithstanding interchangeability between other peripheral devices such as disks and tapes, it failed to include these in the same sub-market. It is said from this that the District Court was inconsistent and illogical in defining the relevant market. B. The Finding of Monopoly Power: In support of its contention that it did not have monopoly power, IBM cites that its share of the computer systems industry amounted to 35.1 per cent and that its share of computer hardware was limited to 36.7 per cent. Further, that its share of total peripheral equipment was limited to 45.6 per cent of the tape market, 38.3 per cent of the printer market, and 30.3 per cent of the disk and memory market. IBM points out that the court’s finding as to the possession of IBM of monopoly power is inconsistent with its findings that there existed substantial competition between IBM and other manufacturers in the area of peripheral products. IBM also complains that the trial court was unfair in including new IBM products which had not yet been copied by other plug compatible manufacturers. Obviously, IBM had 100 per cent of these markets but averaging 100 per cent gives a distorted picture. Finally, IBM maintains that the touchstone of monopoly power is ability to charge unreasonably high prices and to exclude competition. The court did not find that IBM had either of these abilities, although the court did adopt this legal test. IBM also points out that the the object of the Sherman Act is to prevent price fixing, control of supply, and deterioration in quality of the monopolized products. It says that none of these problems exist in the case at bar. C. Predatory Conduct: IBM contends that the court erred in finding that predatory conduct existed because it is wholly out of harmony with IBM’s lower prices, improved products, and new leasing terms, all of which were responsive to competitive activities and pressures. Attention- is called to Findings 88, 95a and Ilia, wherein the court admitted that the legality of IBM’s responses were competitive, but holds that the conduct was predatory because of the economic power of IBM. It is said that IBM’s actions were wholly lawful in themselves, but became unlawful only because of IBM’s size. It is said that this view is erroneous because IBM’s conduct was lawful, involved a reasonable profit, and was responsive to the acts of its competitors, in harmony, with the purpose of the Sherman Act to foster competition and give healthy economic results — better products at lower prices. In details in its arguments the reasons why the 2319 product price offerings were not predatory and why the long-term leases were not, and also why the new memory at a lower price was not predatory. D. The Award of Damages: IBM contends: 1. The awards are vague and are not founded on specific findings. Therefore, they do not comport with Rule 52(a). 2. There is no effort on the part of Telex to prove that any activity of IBM caused the damage or that it was the probable consequence of IBM activity. 3. The difference between the original award and the amended one illustrates the arbitrary and speculative approach that the court employed. 4. It failed to prove particularly that the award to Telex for inability to produce and sell memories was based on anything that IBM had done or had failed to do. 5. The future losses recognized by the court were wholly speculative. VI. TELEX’S CROSS-APPEAL CONTENTIONS. A. Appropriation of Trade Secrets: 1. Telex claims that the court erre,i in its award of damages based upon the misappropriations because it derives largely from the hiring of former IBM employees and the paying of large bonuses to them to produce copies of IBM products. It is said by Telex that the damages which the court found amounting to $20.9 million is based largely on circumstantial evidence. 2. Telex says that it did not invade IBM’s rights because they were free generally to copy those products that were on the market and thus in the public domain. Further, that these were not secrets; that they were known throughout the industry and neither innovative nor novel. Finally, they maintain that IBM was misusing their secrets in any event; that they were furthering their monopolistic activities with them and therefore the secrets were so contaminated that no recovery could be allowed. 3. A specific objection is raised as to the $4.5 million lost on tape rentals and $3 million in indeterminate damages. Telex says that there is no way of knowing whether IBM would have had the $4.5 million and says that the $3 million award is too vague. 4. Regarding the award of $10 million to IBM based on misappropriation of trade secrets growing out of IBM’s Merlin disk system, Telex says that it abandoned this matter midway in its development and sold it to another corporation. Since it never finished its program, IBM did not suffer any damages. It says that the $10 million award really represented the sum that Telex would have lost in its attempt to copy Merlin had it not used IBM’s trade secrets. It says that it was impermissible for the court to use this kind of an approach to the award of damages. 5. Telex contends that the award of $3 million to IBM for increased security expenses and the award of $400,000 resulting from having to manufac