Full opinion text
JOHN R. BROWN, Chief Judge: This antitrust case presents, among others, an interesting relevant market problem. Spectrofuge Corporation, an independent service organization, brought suit against Beckman Instruments, Inc., a manufacturer of scientific instruments, alleging that Beckman had restrained trade and had monopolized or attempted to monopolize the servicing of its instruments, one in particular, in violation of §§ 1 and 2 of the Sherman Act, 15 U.S.C.A. §§ 1, 2. It also charged Beckman with common law unfair competition. Beckman, counterclaiming for violation of § 1 and for unfair competition, alleged that Spectrofuge had pirated its employees and misappropriated its confidential information. After a two-week trial, the jury returned a general verdict in favor of Spectrofuge on its claims and against Beckman on its counterclaims. After the trial court entered judgment on the verdict, Beckman moved for judgment n.o.v. or, in the alternative, for a new trial. The Trial Judge ordered a “remittitur” of a portion of the damages awarded Spectro-fuge but otherwise denied Beckman’s motion. Spectrofuge unsuccessfully moved for a permanent injunction. It subsequently moved to modify the judgment with respect to the award of attorneys’ fees and the denial of injunctive relief. These motions were denied. All are unhappy and both parties appeal. We reverse the judgment entered for Spectrofuge on its antitrust claims and the attorneys’ fee award. The judgment on the common law count is affirmed. This result disposes of the issues raised on Spectro-fuge’s cross-appeal. We have mapped out the following course for explaining our Monopoly game. With our first roll of the dice, we introduce the players. Second, we detail, to the extent necessary, the players’ conduct which formed the bases of the complaint and counterclaim. Third, after discussing the verdict, final judgment, and issues raised on appeal, we reach the Sherman Act claims. Finally — without passing «Go or collecting $200 — we take care of odds and ends. I. Background Beckman Beckman is a California corporation engaged, among other things, in the manufacture and sale throughout the United States of a wide variety of scientific instruments and accessories, including, for example, liquid scintillation counters, amino acid analyzers, spectrophotometers, and ultracentri-fuges. Of particular importance here are Beckman’s ultracentrifuges (UCs) which analyze samples of various materials. The instrument spins the sample at high rates of speed (60,000 to 70,000 rpm) until the material separates into its various components. Its applications in the biomedical field are many. For instance, the UC played a major role in the development of flu and polio vaccines due to its ability to purify flu and polio viruses. Beckman manufactures its products through four unincorporated producing divisions. The Spinco Division manufactures the UC. The other three are the Scientific Instruments (SID), Clinical Instruments (CID), and Electronic Instruments (EID) Divisions. The Analytical Instrument Sales and Service Division (AISSD) performs the sales and servicing functions for the four producing divisions. Incidental to the sale of its instruments, Beckman provides servicing and maintenance free during the one-year warranty period. Thereafter, service is provided on a contract or a call-by-call basis by approximately 275 Beckman field service representatives stationed throughout the United States. These representatives receive formal training courses conducted by Beckman in California and on-the-job training in the field when they first join the company. Each representative carries a personal inventory of replacement and exchange parts for Beckman instruments which is valued at about $5,000 per man. This private stock is referred to as “service inventory.” Additional service inventory is carried at depots, district offices, a central warehouse in Fullerton, California, and at the producing divisions. This inventory is available exclusively for the use of service representatives. Beckman also maintains a “sales inventory” of parts — available for sale to instrument owners, independent service organizations, etc. — located at depots and at the producing divisions. Inventory control is monitored by computer. Spectrofuge Two Beckman service representatives, Reinaldo del Valle and William Dawson, resigned their jobs and, in May 1972, formed Spectrofuge Corporation. Dawson, its first president, subsequently sold his stock to del Valle who then became president and sole stockholder. During Dawson’s tenure with Beckman, he had repaired and serviced pH meters, spectrophotome-ters, liquid scintillation counters, gas chro-matographs, and UCs; del Valle had serviced amino acid analyzers and UCs. One of Spectrofuge’s goals, as stated in a promotional letter, was: . to provide local service at lower rates than major companies. This is accomplished by limiting the service specialist to a thirty mile radius of operation in his assigned location. This cuts cost involved in traveling and permits faster service, since the specialist is not over-extended or out of town when needed. Another such letter outlines in the first paragraph the services offered: Spectrofuge Corporation provides maintenance contracts and reimbursable repair service for laboratory and industrial instruments. We have grown rapidly as a result of efficient service of consistently high quality at a competitive price. Our personnel average twelve years of experience per man and are qualified to work on almost all types of instruments. Analytical and preparative ultracentri-fuges, liquid scintillation counters, amino acid analyzers, and spectrophotometers are our major business.' Hence the name Spectrofuge, Del Valle lived in Miami, Dawson in Gainesville. Their initial efforts to obtain service contracts focused on institutions owning instruments which they had serviced as Beckman — and in del Valle’s case, Cary — employees; e. g., the University of Miami and the University of Florida. According to del Valle, in order to expand business, it was necessary for Spectrofuge to hire qualified service people. On September 30, 1972, Larry Autry, a Beckman service representative stationed in North Carolina, resigned and joined Spectrofuge on October 1. Autry began to service for Spectrofuge some of the same institutions which he had previously serviced while working for Beckman. In early 1973 Spectrofuge submitted a bid to Union Carbide at Oak Ridge, Tennessee, covering service of Beckman UCs, amino acid analyzers, sequencers, and recording spectrophotometers for the period April 1, 1973 to March 31, 1974. Beckman, who then held a service contract on its instruments at Union Carbide, rebid for the new year. In October or November 1972, when Spectrofuge was contemplating the bid submission, George Farnham, the Beckman representative stationed in Tennessee who serviced Beckman’s instruments at Carbide, agreed to join Spectrofuge if its bid was accepted. Sometime thereafter Farnham so informed Beckman. In March 1973 when the contract was awarded to Spectro-fuge, Beckman fired Farnham who immediately became a Spectrofuge employee servicing Beckman equipment at the Oak Ridge facility. On June 13, 1973, Jose Sacerio, who had been the supervisor of the Electronics Section of the Medical Instrumentation Laboratory, joined Spectrofuge. Sacerio was hired for the purpose of servicing Packard liquid scintillation counters and designing instruments. Sacerio became Spectrofuge’s Vice President for Custom Design and devoted about 45% of his time to design work. He spent the remainder on servicing instruments, spectrophotometers and UCs, although he performed only routine service on the latter. Sacerio never traveled outside Florida to service instruments and “probably” would have objected to moving. He left Spectrofuge on July 8, 1974. The next employee acquired by Spectro-fuge (in July 1973) was John Jackson who had been employed by Beckman as a service representative in the Research Triangle area. Over 95% of his work for Spectro-fuge was devoted to servicing Beckman UCs. Jackson worked for Spectrofuge for about one year. In August 1973 Spectro-fuge hired a “jack of all trades” named Gonzales who, according to Sacerio, helped with brute force work, such as lifting instruments, and ran various errands. Gonzales was located in Florida. He left Spec-trofuge in November 1973. Del Valle and Dawson approached others to work for Spectrofuge with a view toward increasing service capability: and gaining new contracts. These efforts to expand are succinctly summarized in chart form. Person . _ solicited Location At time of solicitation employed by Service capability needed Follis Dallas-Houston Beckman Equipment at Baylor Univ., Univ. of Texas, Anderson Complex, all in Houston Kincheloe N.C. Beckman Packard liquid scintillation counter work at Univ. of Miami; Univ. of N.C. total service contract Bussel Tenn. Beckman Packard liquid scintillation counter work at Univ. of Miami; Cary equipment at Union Carbide, Oak Ridge, Tenn. Monday Knoxville Beckman Oak Ridge contract; Vanderbilt Univ. work Cheevy unknown Beckman Vanderbilt Univ. work Wallace unknown Packard Packard liquid scintillation counter work Drake Ala. Univ. of Ala. Equipment at Univ. of Ala. None of these persons ever signed on with Spectrofuge. II. A Centrifugal Honeymoon: Beginning And End From its beginning in May 1972, Spectro-fuge went into direct competition with Beckman for service contracts on Beckman instruments as to which the one-year warranty period had expired. By offering service at a price between 15-20% below Beck-man’s, Spectrofuge was initially successful in each instance when the two companies were in direct bidding competition. Thus, Spectrofuge’s growth was rapid. In its first fiscal year ending April 30, 1973, its sales totaled $49,942.68, with net income before taxes of $4,919.75 for a net profit of 9.9%. Its second year in business produced $135,619.19 in total sales, representing a 171% increase in sales volume. After deducting approximately $20,000 in legal expenses incurred in the prosecution of the present suit, Spectrofuge’s net profit for the second year was 20.5% The early relationship between the two companies was cooperative, Spectrofuge promising to aid Beckman in selling its instruments, and Beckman assuring cooperation with regard to parts supply. As Spec-trofuge cut more substantially into Beck-man’s business, however, and as Beckman employees were approached about joining, and as some joined, Spectrofuge, the relationship soured. Spectrofuge’s antitrust and unfair competition charges are premised on three courses of conduct by Beckman which Spectrofuge says were designed to “put Spectrofuge out of business.” The first is Beckman’s policy regarding exchange drives for UCs. Second, Spectrofuge accuses Beckman of intentional delay in the shipment of parts. Last, Beckman placed on Spectrofuge a credit hold of three weeks’ duration — and so informed some of Spectrofuge’s customers — at a time when Spectrofuge in fact enjoyed a credit balance. We deal with each. Beckman’s Exchange Drive Policy The drive which spins the rotor of an ultracentrifuge is its most commonly replaced part. Although Beckman has apparently sold brand new drives at list prices of $3,600 or $4,200 for preparative and analytical UCs, it was stipulated that Beckman during 1970-73 sold only “exchange,” or rebuilt, drives. Beckman’s pricing and installation policy concerning the exchange drive is the central focus of this controversy- We begin our explanation of the mind-boggling price structure for UC drives with two documents issued by Beckman, PX 22A a$d PX 22B, both dated March 15,1968, and entitled “Price Schedules and Warranty Provisions for Beckman Ultracentrifuge Drive Units.” According to these documents, drive units were “covered by a prorated warranty provision for defects in workmanship or material. In the event of drive unit failure, replacement [was to be] made at an exchange price based on a graduated scale determined by usage.” PX 22A, PX 22B. A minimum exchange price equivalent to 1.2 billion revolutions or the actual drive revolutions — whichever the greater — would be charged unless the drives were installed, serviced and operated in accordance with these conditions, numbers 3, 4, and 5 being the most important to the issues here: 1. The drive unit has been operated within its rated speed and temperature ranges. 2. The drive unit has not been subjected to unequal loading, improper rotor installation or to corrosion from material spilled onto the hub or accumulated in the chamber of the instrument in which it has been installed. 3. The drive unit has been disassembled, modified, or repaired only by Beck-man personnel. 4. The drive unit was installed by a Beckman Field Engineer. 5. The instrument in which the drive unit has been used and operated, and its associated rotors, were manufactured by Beckman and serviced only by Beckman Field Engineers. 6. A period of not more than three years has elapsed since the drive unit was installed. There was no charge for installation when the instrument was covered by a Beckman service agreement. Non-contract customers would be “billed for installation in accordance with established rate schedules.” Id. The “Direct Shipment” provision in these exhibits covered non-contract situations where, for example, the non-contract customer could order a drive to keep as a spare. In such event, drive units would be shipped directly to institutions or individuals who would be invoiced at published list price ($3,600 or $4,200). When an installed drive failed, it would be removed and shipped to Beckman who would issue a credit so that the eventual net billing was equivalent to the appropriate exchange price. As we understand these two exhibits, in light of the trial testimony, a minimum exchange price ($360) and a maximum exchange price ($480 or $540, depending on the UC model in question) were established. Full proration down to zero revolutions would be available to Beckman contract customers. Proration for non-contract customers, i. e., those who failed to meet the six conditions listed above, would begin at 1.2 billion revolutions. The following illustration may aid us in perceiving that the only difference in drive price to a contract versus a non-contract customer would occur in the event that the non-contract customer’s drive failed below 1.2 billion revolutions, in which case he would pay the minimum exchange price ($360): PX 22A and PX 22B end with a paragraph entitled “Exceptions,” which reads: Exceptions to the conditions outlined above must have prior written approval of the Field Engineering and Service Manager, Spinco Division, Beckman Instruments, Inc. The clear weight of the evidence showed that while the above represented official Beckman policy dating back to 1968, this policy was not followed until July 1973. The deviation lay in the fact that non-contract as well as contract customers received full proration down to zero when drive failure occurred below 1.2 billion. The Spec-trofuge employees who had formerly worked for Beckman unanimously stated that when they worked for Beckman full proration was accorded to all customers, irrespective of whether their instruments were serviced under contract with Beck-man. Proration was important to Spectrofuge because a service contract on a UC for one year averaged $280. Without proration, the drive could cost $360 if it failed under the 1.2 billion mark, eliminating the entire value of the contract. Thus, immediately upon Spectrofuge’s formation in May 1972, del Valle and Dawson met with Nelms and Jollett of Beckman’s Atlanta district office, during which meeting proration was discussed. Beckman told Spectrofuge that it would receive full proration only if Beck-man installed the drive and that it would be charged for labor and travel in doing so. Spectrofuge made two inquiries at that meeting. The first was whether it could purchase drives for stock at the exchange ($480) rather than the list ($4200) price. Second, since both del Valle and Dawson were ex-Beckman service representatives, they asked if they could change drives and still get proration (thus saving labor and travel costs involved when Beckman installed them). Nelms responded that he lacked authority to grant either of these requests but he agreed to check with corporate Beck-man in California. Nelms never got back to Spectrofuge with answers to these questions. Pursuant to this discussion, Spectrofuge requested Beckman to conduct all drive changes and, for a while, received full pro-ration (despite condition 5, supra), absorbing the cost for labor and travel. In September 1972 Spectrofuge encountered a problem with paying the list as opposed to an exchange price on another exchange part (a board in this instance). Dawson wrote to Ballhaus, President of Beckman, inquiring about the board price matter, and also raised the question of whether Spectro-fuge could replace drives. Dawson stated in part: Spinco says that they only warrant the Drive if it is installed by a B.I.I. Serviceman. Mr. del Valle and myself were factory trained on Ultracentrifuges by B.I.I. We have changed untold numbers of Drives and did so until we resigned from A.I.S.S.D. Now we are informed that a warranty is not offered if we replace Drives ourselves. Those policies serve only to disgust the customers and please remember that they are your customers as well as mine. Ballhaus’ response, dated November 20, 1972, is set out in full: Thank you for your letter of. September 15. We appreciate your interest in cooperating with Beckman Instruments and want to assure you that your organization will be treated as any other customer, within the framework of our established operating policies. Any part may be ordered through our normal sales order function and will be invoiced at list price. If the part is classified by us as an exchange part, credit for the difference between list and exchange prices will be issued when the defective part is returned prepaid and is found to be in a repairable condition. The same procedures hold true for ultra-centrifuge drive units. In this case, the exchange price is always considered to be equivalent to the maximum usage charge on the drive units with no prorated allowance for less than maximum usage. This policy was established because-we cannot control the installation or operation, nor can we determine actual usage when the service is not performed by Beckman. In your letter you indicated that one of the benefits of your organization was rapid response. It is difficult for us to see how you can guarantee prompt satisfaction of instrument problems without an immediate inventory of replacement parts available. This would entail a substantial investment in inventory on your part, as it does with Beckman Instruments. Although any order received by our sales order group will be processed and shipped in a normal manner, the sales inventory does not contain all of the wide variety of parts required for instrument service. Beckman does carry a broad range of parts in its service inventory, but this inventory level is maintained to meet the requirements of the Beckman service organization and is for their own use. Any part ordered through our normal sales inventory will be processed, but delays could be experienced if the part is not immediately available in stock. If you wish to have replacement parts immediately available, we suggest that you purchase an initial quantity of parts which are most commonly replaced. From that point, a related part that has a salvage value could be sent to Beckman Instruments for repair and direct return to your stock for subsequent use. Again, please be assured we will honor any orders for parts, from your organization, within the guidelines described. If you have any questions, please do not hesitate to contact us. From May 1972 through December 1974, Beckman replaced 66 drives in UCs under service contracts with Spectrofuge. Spec-trofuge asserted that Beckman’s loss of the large and prestigious Union Carbide contract in March 1973 inspired Beckman to “change” its proration policy by not granting proration on drives which failed below 1.2 billion revolutions. PX 260A, which is attached as Appendix A to this opinion, sets forth in table form the actual amount Spectrofuge paid for drives and the amount it would have paid had proration been given. The “Drive Differential” column demonstrates that the first time Spectrofuge failed to get proration on a drive which failed below 1.2 billion revolutions was on July 24, 1973. It also demonstrates that (i) out of the 66 drive changes, Spectrofuge paid for the drive in 48 instances exactly what a Beckman service contract customer would have paid; (ii) in two of these 48 instances, occurring after Spectrofuge won the Union Carbide contract, it was charged nothing for drives failing below 1.2 billion (9/4/73 and 10/19/73 entries) when the allegedly new policy would have required payment of the minimum exchange price; (iii) in two instances it failed to get proration ostensibly accorded all customers (5/30/73 and 8/28/73 entries); (iv) in one instance (11/12/73 entry) it benefited by not paying anything when a Beckman service contract customer would have paid $96; (v) in fifteen instances Spectrofuge paid more than a Beckman contract customer would have and in six of those instances (marked by Spectrofuge with an asterisk), the difference was reimbursed by the customer; (vi) the drive differential total (excluding labor and travel) is $3,561.77. By subtracting from that total the amount reimbursed by Spectrofuge’s customers ($975.21) and the amount it gained on the drive installed on 11/12/73 ($96.00), there is an actual out-of-pocket loss on drive charges of $2,496.56 incurred in its second fiscal year of operation. Unreimbursed expense on labor and travel totaled $5,467. In May 1973, del Valle met with DePal-ma, Customer Services Manager ,for Beck-man’s eastern region. The competitive relationship between Spectrofuge and Beck-man was discussed but the parties presented quite different versions of what transpired. According to del Valle: A. [W]e started out — it was about an hour and a half. . * # * sfc * * Then he told me about Union Carbide and he said, “You know, you really made a mistake by getting into Union Carbide.” He said, “Well, that was fatal because now you brought yourself up to even the attention of Dr. Balhaus” [President of Beckman]. I said, “How can that be? What happened?” He said, that it came up to corporate about Spectrofuge getting this contract. They wanted to know the reason for it. And, I said, “What does it have to do with the whole thing?” He said, “Well, I have been told that you had it. Now you have brought yourself to their attention and I have no choice but to put you out of business.” I think I asked him, “Well, how do you propose to do this?” He said, “Well, there [are] ways.” I asked him, “Do you propose to cut down on your rates to a dollar an hour so I can’t compete with you?” And, he said, “No, they are not going to do that. We already did that at the National Institute of Health and we cut down the rates to get rid of competition, and then we were stuck with them because of the price freeze that came in.” And he said, “Now, in your case, I’ve got the backing of corporate and I’m quite sure we’ll be able to do something to put you out of business.” He also told me that if he was ever confronted with [this], he will deny it. But, he said, “I have no choice. It’s either you or me. We are going to put you out of business.” Tr. 1386-87. DePalma’s version follows: Q. Now, during that meeting, is it your testimony that during that meeting you had a discussion with Ray del Valle about putting him out of business? A. No. I don’t believe I said that. Q. Well, did you have that discussion with Ray Del Valle on that occasion? A. There was a short period during that conversation where Ray said he would have to take all the business he could to stay alive and I told him I would try to maintain an equilibrium in our business and stop him from taking business away from us. Q. Now, you mentioned something about it being tongue-in-check. What do you mean by that? A. Well, he says, “I have to get all I can,” and I said, “I’m going to have to stop you from getting all you can.” We were kind of smiling at the time. It wasn’t one of those vicious things. I had just met the man and he had already invited me to dinner at his home. It wasn’t the attitude. It wasn’t the atmosphere. Tr. 2030-31. Spectrofuge charges that Beckman’s refusal to accord proration when Spectrofuge employees installed a drive was unreasonable and. that the changed proration policy was the means Beckman employed to drive it out of business. There is no doubt that beginning in July 1973, a no-proration pattern developed. Beckman asserts that the instances in 1972 when Spectrofuge was accorded proration were deviations from its pre-existing policy, the ultimate enforcement having been prompted by a May 24, 1973 letter which Spectrofuge’s North Carolina attorney wrote to Beckman. Following receipt of the attorney’s letter, Wilson, Service Planning Manager of AISSD, wrote a June 8, 1973 memo to all District and Customer Service Managers which read: On the back side of our Price Schedules for drive units, Spinco Bulletins SB-1354E and SB-1354L, dated March 15, 1968 [PX 22A, PX 22B], we specify the conditions under which we will pro-rate the full drive exchange price. If all of the conditions specified are not fulfilled, our policy is to bill a minimum exchange price equivalent to 1.2 billion revolutions, or the actual drive revolutions, whichever is greater. Although we appear to have been following this policy, there may have been instances in the past where we deviated from the policy as written for various reasons; i. e., misunderstanding or forgetfulness. Although the specified conditions appear to be straightforward, one condition may need further clarification. This is condition # 5 which states, “The instrument in which the drive unit has been used and operated, and its associated rotors, were manufactured by Beck-man and serviced only by Beckman Field Engineers.” This means that the instrument must either be covered by a Beck-man service agreement or serviced exclusively by Beckman Field Service Engineers on a demand, per-call basis. If the instrument is serviced by a competitive service organization, in-house service personnel, or any other non-Beckman employee, the pro-rating provision is invalid. Please ensure that this policy is strictly adhered to, and advise the appropriate Field Service Representatives. Spectrofuge asserts that Beckman’s pro-ration policy violated § 1 of the Sherman Act and proved the intent element necessary for demonstrating a § 2 attempt to monopolize offense. Because it would have been unprofitable to have serviced instruments in a situation where the replacement of a drive could exceed the value of the servicing contract, Spectrofuge asserts that Beckman’s failure to prorate below 1.2 billion revolutions when the UC was not serviced by Beckman constituted an anti-competitive activity which “stopped it cold.” Main brief at 37. Thus, it was unable to bid on, or to compete for, service contracts in three specific cases: (i) the NIH-Bethesda, Maryland contract involving about $100,000 in service agreements; (ii) instruments located in Houston (about $25,-000); and (iii) instruments located at the University of Alabama (about $20,000). In addition to damages sought for this lost business, Spectrofuge asked for $8,053.56 in drive overcharges. Beckman countered these charges by arguing first that despite Ballhaus’ advice, Spectrofuge refused to acquire an inventory of drives. Had it done so, Spectrofuge could have established its own proration policy as to those it stocked. Thus, Spectro-fuge in effect expected Beckman to subsidize it. With regard to the lost contracts at NIH-Maryland, Houston, and Alabama, Beckman asserts that it was Spectrofuge’s lack of service capability and lack of success in recruiting — and not the proration policy — which kept it from bidding or seeking that work. Parts Delays Spectrofuge accuses Beckman of intentionally delaying the shipment of parts. This conduct is charged to be a restraint of trade and indicative of intent to monopolize. In the period between May 1, 1972, and the end of 1974, Spectrofuge placed 50 parts orders with Beckman exclusive of drives. The Beckman documents on each of the 50 orders were received into evidence as DX 173A-173XX. For proper evaluation of the merits of the parties’ contentions on this issue and in an effort to shorten this opinion, we prepared in chart form, and have attached as Appendix B, a summary of DX 173A-173XX showing the date parts were ordered, the shipping instructions requested, the date shipped, and the actual delay in days. Spectrofuge sought damages for parts delays in three specific instances: (1) On July 3, 1973, Spectrofuge ordered a board needed for a “down” liquid scintillation counter which it serviced under contract with Dr. Cerutti of the University of Florida (see DX 173GG on Appendix B). The part was shipped 65 days later on September 9. As a result of this delay, Dr. Cerutti cancelled the contract in mid-year and Spectrofuge had to refund to him $607.48. Spectrofuge sought this amount in damages, plus the loss of $3,500 in annual contracts with Dr. Cerutti for two years. On August 15, Dawson called Beckman in Atlanta to inquire about the delay. He was met with the fact that Beckman had placed a credit hold on Spectrofuge, which meant no service and no parts, even on a C.O.D. or cash basis. Dr. Cerutti personally appealed to Beckman and delivery was finally accomplished. (2) On June 11, 1973, Farnham ordered two damper assemblies and one circuit breaker (see Appendix B, DX 273DD) for an amino acid analyzer and a UC, which, according to del Valle, were under Dr. Popp’s control at the Union Carbide-Oak Ridge facility. While Farnham’s testimony on this score is hardly a model of clarity (Tr. 800-01), as we understand it, he prevailed upon Union Carbide to order the damper assemblies in its own name directly from Beckman. Union Carbide obtained them on August 13, and those ordered by Farnham for Spectrofuge did not arrive until October. According to del Valle, Dr. Popp thereafter withdrew his instruments from the blanket Union Carbide contract. Spectrofuge sought $2,277.51 per year for two years on the loss of these contracts. (3) According to del Valle, Spectrofuge experienced delay in obtaining a refrigeration cam for an instrument under the control of Dr. Faust located at Union Carbide-Maryland. When the Union Carbide contract came up for renewal, Spectrofuge was not invited to bid on the Maryland instruments which had been under blanket coverage with Union Carbide-Oak Ridge, resulting in a loss of $2,511.33 annually. Spec-trofuge sought that amount for two years. According to Conway, Product Service Manager of the Spinco Division, (i) when the order for the damper assemblies arrived in California, the computer indicated, as shown by the “ — 154” on DX 173DD, that there were 154 damper assemblies already on order; (ii) the order was for a discontinued product that had been discontinued several months prior to this order; and (iii) a Beckman field service representative would normally carry damper assemblies as part of his service inventory. As for parts delays in general, both parties’ evidence indicated that Beckman service representatives were equally plagued by the problem (Tr. 465-66, 2071; PX 109, PX 110, PX 111). At one point, when del Valle complained about the delays to De-Palma (Customer Service Manager, Eastern Region), DePalma replied, “That makes two of us. . . . ” Tr. 466. When DePalma checked into the matter, he discovered that most all of Speetrofuge’s initial orders were placed on an emergency basis and he instructed Beckman-Atlanta that Spectrofuge was thereafter to be treated in the same manner as Beckman’s biggest customer in the district, “SDC” in determining the frequency with which orders would be honored on an emergency basis. Beckman employees informed some institutions that if they placed instruments under service contracts with Spectrofuge, they would, or could expect to, experience parts delays. Jackson stated that while he worked for Beckman, Bentley (a Beckman service representative in the Research Triangle area) had, on two or three occasions, delayed calling a Spectrofuge order into Atlanta for periods up to a week. Spectrofuge was not dependent on Beck-man for all parts; some — even major components — could be purchased from other sources. According to Dawson, Spectro-fuge maintained an inventory valued between $400-800. Farnham stated that he had purchased some parts from the field service inventory of Beckman and that they had tried to help him out in some emergency situations. But, as Ballhaus had warned in his November 1972 letter to Spectrofuge, orders for Beckman parts had to go through sales inventory channels. Also relevant to the parts delay problem is the following testimony of Dawson: THE COURT: ... The question is, did you not expect to receive the same service and consideration from Beckman after you left as you had while you were employed with them? THE WITNESS: Yes, sir. Tr. 121. Credit Hold In the summer of 1973, Beckman placed a three-week credit hold on Spectrofuge during which period it refused to supply parts or service even on a C.O.D. or cash basis. The chronological sequence of events surrounding this incident is as follows: 1. June 14,1973. A computer-generated letter from Beckman’s corporate credit department was sent to Spectrofuge requesting payment. 2. June 21, 1973. Del Valle wrote to DePalma in Atlanta questioning charges on three invoices which, for convenience, we shall call “Group A” invoices. He submitted a partial payment ($1,360), excluding payment for the amount contested. He asked DePalma to let him know if DePalma disagreed. DePalma’s principal office was located in Mountainside, New Jersey, and del Valle knew this, but DePalma also had an office in Atlanta. The invoices contained an instruction to remit payment to a lock box in Atlanta. 3. June 21, 1973. A second computer-generated letter from Beckman’s corporate credit department was sent to Spectrofuge requesting payment. 4. July 19, 1973. DePalma wrote to Wilson (Staff Operations Manager, California) and forwarded to him del Valle’s June 21 letter and the Group A invoices, asking Wilson, in conjunction with Anderson (Cor-’ porate Credit Manager, California) to insist on full payment of the invoices. 5. July 24, 1973. Del Valle wrote to DePalma in Atlanta regarding two invoices, one of which he stated was in error (“Group B” invoices). He transmitted full payment of the Group B invoices ($1,141.40) under protest. 6. July 26, 1973. A third computer-generated letter from Beckman’s corporate credit department was sent to Spectrofuge requesting payment. 7. July 27, 1973. Del Valle wrote to DePalma in Atlanta pointing out overcharges on two out of three invoices (“Group C”), and submitted partial payment of these invoices ($1,619.60). 8. July 27, 1973. Wilson went to see Anderson and took with him DePalma’s July 19 letter, which had transmitted del Valle’s June 21 letter and partial payment. Anderson checked the computer and determined that the Spectrofuge account was in arrears. Anderson immediately issued the credit hold and sent a telex to DePalma instructing him not to provide service, or parts without his approval. Anderson tried to call del Valle but was unable to reach him; he did not leave a message. When Jollett (District Sales Manager, Atlanta) learned by telex of the credit hold, he checked with his manager who instructed him to call del Valle. When Jollett did so, del Valle, after learning of the credit hold, told Jollett that Spectrofuge did not owe Beckman any monies. He also made a cash or C.O.D. proposal. Jollett said the matter was out of his hands. Del Valle — according to Jollett — told him that the credit hold was a “bad move” on Beckman’s part. Del Valle requested written confirmation of the credit hold. 9. July 30, 1973. Anderson wrote del Valle confirming the credit hold, enclosing a statement of the past due account ($3,146), and asking for full payment. 10. August 1, 1973. Del Valle received Anderson’s July 30 letter and responded by enclosing (i) a check for $285 which represented payment for the withheld amount on the Group A invoices (June 21 entry); (ii) a check for $100 which represented payment for the withheld amount on the Group C invoices (July 27 entry); (iii) copies of his June 21 and July 27 letters to DePalma; and (iv) a check for $998.60 to cover payment of other invoices. Del Valle did not mention or enclose a copy of his July 24 letter to DePalma in Atlanta or the $1,141.40 payment which had accompanied it. 11. August 2-5, 1973. The first occasion when Spectrofuge needed a part occurred in this period. Del Valle called Williams in Atlanta who told him that until he (Williams) got a release from Anderson, Beckman could not give him service. 12. August 6, 1973. Anderson wrote to del Valle acknowledging receipt of his August 1 letter and the three checks totaling $1,383.60. He asked del Valle if Spectro-fuge had paid the Group B invoices (July 24 entry). Anderson sent copies of this August 6 letter to DePalma and Wilson. 13. August 9, 1973. Del Valle wrote Anderson acknowledging receipt of his August 6 letter and stating in summary that Spectrofuge had never owed Beckman any monies and, in fact, because of Beckman’s having invoiced the same job twice, which he had paid twice, Spectrofuge enjoyed a credit balance of $530.' 14. August 16,1973. DePalma wrote to del Valle acknowledging receipt of his June 21, July 24, and July 27 letters and stating that (i) the Group A and Group B invoices had been processed to credit Spectrofuge only for the tax it had been charged; the difference between the amounts invoiced and that paid was to be handled by Anderson; and (ii) he (DePalma) was forwarding the Group C invoices and payment to Anderson. 15. August 17, 1973. DePalma called Anderson and told him that he had a check from Spectrofuge in Mountainside for $1,097.50 which he would forward to California. Anderson immediately released the hold and advised del Valle of this release by telegram the same day. 16. August 28,1973. Anderson wrote to del Valle and confirmed that Spectrofuge had a credit balance of $530. Del Valle admitted that throughout this period he never called Anderson in California. He also stated that the credit hold “hit us right in the middle” of Spectrofuge’s discussions with counsel about bringing suit (the complaint was filed on September 4, 1974). During the period of the hold, Beckman employees informed several Spectrofuge customers of the credit problem. In some instances the information was supplied on request by the customer; in others it was volunteered. Spectrofuge contended that the credit hold was wrongfully placed and sought, under Florida common law, damages for the two-year loss of a service contract (value $3,200 annually) with the VA Hospital in Durham, for a total of $6,400. III. Verdict, Final Judgment, And Issues Presented The trial court refused to permit Spectro-fuge to submit the question of punitive damages to the jury. In closing argument, plaintiff itemized the antitrust damages sought as follows: 1. Overcharges on drives $8,053'.56 2. Loss of contract at Union Carbide-Maryland (Dr. Faust): $2,511.33 per year for at least two years 5,022.66 3. Refund to D£. Cerutti-for mid-year cancellation ($607.48) plus loss of liquid scintillation counter contracts at Univ. of Fla.: $3,500 per year for at least two years 7,607.48 4. Loss of contract at Union Carbide-Oak Ridge (Dr. Popp): $2,277.51 per year for at least two years 4,555.02 5. Profit from NIH-Maryland ($100,000), contract‘work in Alabama l$20,000), and contract work in Houston ($25,000) at 20.5% profit far two years 59,368.00 $84,606.72 Spectrofuge’s counsel told the jury that the total damages were at least $83,000 on the antitrust claims. Plaintiff sought $6,400 on its common law claim for the cancellation and loss of the VA Hospital due to the credit hold-inspired parts delay. Beckman asked for damages on its counterclaims totaling $30,000 which covered profits (figured at 10%) from contracts lost as a result of Spectrofuge’s wrongful conduct in pirating its employees, costs involved in replacing those employees, and extra travel costs involved in order to maintain warranty servicing in Tennessee after losing personnel and contracts to Spectro-fuge. The jury returned a general verdict for Spectrofuge on the antitrust claims for $85,000 and for $6,700 on its common law claim. The jury also returned a verdict in favor of Spectrofuge, del Valle and Dawson on Beckman’s counterclaims. Judgment was entered on the verdicts awarding Spec-trofuge treble damages of $255,000 for a grand total of $261,700. Plaintiff then submitted affidavits supporting a request for attorneys’ fees. Beck-man moved for judgment n. o. v. or, in the alternative, for a new trial. On March 18, 1975, the Trial Court issued an Order with respect to the JNOV motion which reads in part: 1) As to plaintiff’s antitrust claims, the evidence is legally insufficient to support the jury’s award to plaintiff as to his prayer for loss of service contracts at the University of Alabama claimed to be valued at $8,000.00, and at the institutions located in Houston, Texas claimed to be valued at $10,000.00,[] and further 2) as to plaintiff’s common law claim, the evidence is legally insufficient to support the jury’s award to plaintiff to the extent that it exceeds plaintiff’s prayer for damages. It is, therefore, directed that a remitti-tur in the sum of $18,000.00 as to plaintiff’s antitrust claims, that is, $54,000.00 when trebled, and in the sum of $300.00 as to plaintiff’s common law claim, total-ling $54,300.00, be entered within ten days, or a new trial shall be granted. In all other respects, the Motion for Judgment Notwithstanding the Verdict, or in the alternative for a New Trial, hereby is DENIED. The Court reserved ruling on attorneys’ fees. Spectrofuge subsequently remitted the required amount under protest. Spectrofuge then sought a permanent injunction. The Court entered a final judgment awarding Spectrofuge $207,400 and $25,000 in attorneys’ fees, dismissing Beck-man’s counterclaims on the merits, and denying injunctive relief. Thereafter, Spec-trofuge brought motions for modification to alter or amend the final judgment with respect to the attorneys’ fees award and the denial of an injunction. Both were denied, the District Court entering findings of fact and conclusions of law as to the latter. On appeal, Beckman first attacks the sufficiency of the evidence to support the jury’s findings that Beckman had monopolized or attempted to monopolize a relevant market in violation of § 2 of the Sherman Act and that its conduct constituted an unreasonable restraint of trade under § 1 of the Act. Beckman also challenges the jury instruction given with respect to the requisite elements for an attempt to monopolize claim. Third, Beckman asserts there was insufficient proof to support the finding of injury in fact under § 4 of the Clayton Act and the award of lost future profits. Finally, Beckman contends that the Trial Court erred in denying its motion for a new trial with respect to Spectrofuge’s claims and its counterclaims. On its cross-appeal Spectrofuge challenges the order to remit, the denial of its application for an injunction, the failure to submit the question of punitive damages to the jury and the award of unreasonably low attorneys’ fees. After a long and arduous journey from Baltic and Mediterranean, through Ventnor and Marvin Gardens, and ending at Boardwalk and Park Place, we now reach the question of Monopoly. IV. The Section 2 Claim Section 2 of the Sherman Act, 15 U.S.C.A. § 2, provides that “[ejvery person who shall monopolize, or attempt to monopolize, . . . any part of the trade or commerce” shall be guilty of an offense. In United States v. Grinnell Corp., 1966, 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778, the Supreme Court stated that the “offense of monopoly under § 2 . has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” Monopoly power is the power to fix prices and to exclude competition. E. g., United States v. du Pont & Co., 1956, 351 U.S. 377, 391, 76 S.Ct. 994, 100 L.Ed. 1264 (the Cellophane case). The attempt offense also has two elements: (1) specific intent to accomplish the illegal result; and (2) a dangerous probability that the attempt will be successful. E. g., Aviation Specialties, Inc. v. United Technologies Corp., 5 Cir., 1978, 568 F.2d 1186; Yoder Bros., Inc. v. California-Florida Plant Corp., 5 Cir., 1976, 537 F.2d 1347; Sulmeyer v. Coca Cola Company, 5 Cir., 1975, 515 F.2d 835; Cliff Food Stores, Inc. v. Kroger, Inc., 5 Cir., 1969, 417 F.2d 203; E. J. Delaney Corp. v. Bonne Bell, Inc., 10 Cir., 1975, 525 F.2d 296, 305. Because we are presented with a general verdict, we must assume that the jury found Beckman liable for both monopolization and attempt to monopolize in assessing whether JNOV should have been granted. Because the relevant market provides the framework against which economic power can be measured, defining the product and geographic markets is a threshold requirement under § 2. It is essentially st matter of resolving factual issues. Hea-transfer Corp. v. Volkswagenwerk, A.G., 5 Cir., 1977, 553 F.2d 964; Yoder Bros., Inc. v. California-Florida Plant Corp., 5 Cir., 1976, 537 F.2d 1347; Sulmeyer v. Coca Cola Co., 5 Cir., 1975, 515 F.2d 835; Case-Swayne Co. v. Sunkist Growers, Inc., 9 Cir., 1966, 369 F.2d 449, rev’d on other grounds, 1967, 389 U.S. 384, 88 S.Ct. 528,19 L.Ed.2d 621; see generally Sullivan, Antitrust §'12, at 41 (1977) [hereinafter cited as Sullivan]; Comment, Determination of the Relevant Product Market, 26 Ohio S.L.J. 241, 242 (1965); Note, The Market: A Concept in AntiTrust, 54 Colum.L.Rev. ' 580 (1954). Although some others disagree with us, it is the law of the Fifth Circuit — with which the majority of our sister Circuits around the country agree — that definition of the relevant market is required in attempt cases as well as in monopolization cases. E. g., Aviation Specialties, supra; Yoder, supra; E. J. Delaney, supra. Thus, our initial task in reviewing the jury finding, in light of the Boeing standard is to examine the evidence supporting the definition of the relevant market within which Beckman’s power to control prices or to exclude competition must have been measured. See, e. g., Telex Corp. v. International Business Mach. Corp., 10 Cir., 1975, 510 F.2d 894, 914; Sullivan, supra. Spectrofuge asserts that Beckman has monopolized or attempted to monopolize a relevant product market which consists of servicing Beckman scientific instruments, and a submarket which comprises servicing Beckman ultracentrifuges. Main brief at 32, 34. Beckman, on the other hand, urges that there is no definable market for servicing alone; rather, servicing is an integral part of the sale and marketing of scientific instruments. Spectrofuge’s position on the geographic market is far from clear. It stipulated pri- or to trial that it was engaged in servicing Beckman equipment in Florida, Tennessee, North Carolina, and Maryland. In opening argument, counsel told the jury that “Beck-man is divided into regions, and the evidence will show that the region primarily involved in this case is the eastern region of the United States.” Tr. at 7-8. Beckman’s Eastern Region includes five districts: Boston, Mountainside, New Jersey, Philadelphia, Washington (alternatively called the Silver Springs district) and Atlanta. Counsel went on to state to the jury that the district primarily involved is the Atlanta district, which includes Florida, Georgia, Mississippi, North Carolina, and Alabama. In colloquy concerning Beckman’s motion for a directed verdict, Spectrofuge’s counsel seemed to take the position that the geographic market was composed of the Atlanta and Silver Springs districts. Tr. 1756-57. Plaintiff’s main brief refers to three different geographical areas: (i) the Atlanta district (at pages 9 and 36), (ii) the Silver Springs district (at page 36), and (iii) the “Eastern Region of the United States” (id.). Its reply brief mentions the Atlanta and Silver Springs districts together (at page 4). Nowhere has Spectrofuge stated in a simple declarative sentence what it contends the geographic market to be. Beck-man’s position is clear: the marketing and servicing of scientific instruments is nationwide in scope. The evidence adduced with regard to cross-elasticity of demand disclosed that scientific instrument manufacturers generally service only their own products. There is apparently very little competition to obtain service contracts on other manufacturers’ instruments. Although the matter had been considered, Beckman has never bid on contracts to service non-Beckman instruments in the Atlanta district. Thus, from one perspective, we are dealing with a market structure in which manufacturers are vertically integrated, the major competition occurring at the sales level and not at the servicing level. The record discloses that there are innumerable “just plain service organizations” throughout the United States. However, in the eastern region of the country, there are only two organizations other than Beckman which service the Beckman UC: Arden and Spectrofuge. Arden apparently was purchased by American Instruments Company (Aminco) and while it continued to perform pre-existing service contracts after the takeover, it is no longer bidding for new work. Beckman’s monthly operations reports indicated that other than Aminco, the only two professional servicers of Beckman UCs in both the Atlanta and Silver Springs districts were the present parties. However, there is one other major source of service. Many large institutions employ in-house service personnel. Moreover, some institutions do not provide for planned servicing with respect to all their instruments. Instead, they call upon the manufacturer or independent servicer only as needed. Thus, viewed at the servicing level, independent service organizations compete for contract and call-by-call emergency work with manufacturers (who generally do not compete among themselves for such work) in a market where in-house service personnel provide the consumer with a reasonably interchangeable substitute. In support of its position that there is no separate servicing market and no definable UC servicing submarket, Beckman called two experts, Dr. Alpert and Dr. Schachman, whose testimony can be readily summarized. The scientific instrument market comprises four main categories, the last of which has three subcategories: Instrument Category Major Mfrs. No. of Mfrs. (other than Beckman) (1) Process (control and maintain production processes) 50-100 (2) Medical (patient-monitoring) 100-200 (3) Environmental (measuring) 200 (4) Laboratory 500 a. Analytical (chemical R&D labs & academic labs). Examples: gas chromatographs, spectrophotometers. Perkin-Elmer, Gilford, Packard, Varian b. Biomedical (medical research). Examples: ultracentrifuges, amino acid analyzers. Aminco, du Pont, Clifford, Laboratory Data Control c. Clinical (diagnostic). Example: liquid scintillation counters. Bausch & Lomb, du Pont, Teknika, Instrumentation Laboratories, Perkin-Elmer Many of these manufacturers, including Beckman, sell instruments in several categories. Instruments used for separation and for determination of molecular weight which can be substituted for the ultracentrifuge are chromatographs, electrophoresis systems, osmometers, and light scattering devices using lasers. For some applications these instruments perform better than UCs, for others not as well. There are three manufacturers of analytical UCs with optical systems: Beckman, du Pont and Scientific Resources. Eight companies manufacture preparative UCs with rotation speeds over 40,000 rpm: Aminco, Beckman, Damon, du Pont/Sorvall, Electro-Nucleonics, Schaevitz Engineering, Scientific Resources, and Zena. Dr. Alpert’s conclusion that servicing of scientific instruments is not a separate definable market was based on several factors. Service is a principal consideration in the decision to purchase. The maintenance of a good service department is essential to a healthy rate of sales. Maintaining instruments in good working order adds to the company’s reputation. Additionally, the line of communication between the customer and the manufacturer after delivery of the product is the service representative. Furthermore, because of the nature of the instruments involved, the capability of independent service organizations is limited. They are not informed of the constantly upgraded technology that the manufacturer generates and passes along to its service organization. These inherent limitations are responsible for the few independents which are confined to local areas. Additionally, servicing is not a profit center for the company. If it breaks even on servicing, it is fortunate. Even assuming that servicing is a separate market, however, the servicing of Beckman instruments is not a separate market because expertise in Beck-man instruments is constantly being generated within the company. Finally, scientific instrument marketing takes place on a national basis. No instruments are sold only in a limited geographical area. Spectrofuge called no experts. However, it introduced into evidence several exhibits, portions of which bear on the market definition question. First, Dawson’s letter to Ballhaus of September 15, 1972, PX 23, reads in part: We [Spectrofuge] have been instrumental in customers actually changing orders, from competitors, to Beckman Instruments, the reason being that we are experts in B.I.I. products and can do much better service work on them, even though we have to service competitors’ equipment that had been purchased before we became sole contractor, but the important thing is that customers want the kind of services that we are providing and since we can do our best on Beckman products, they are purchasing Beckmans. A February 8, 1972 letter from Wilson (Beckman Staff Operations Manager) to all regional and district service managers (PX 130) asking for their ideas on sales enhancement states, “The ultimate objective of service is to increase sales. Our efforts should be directed to this end.” In a similar vein, Dr. Popp (Union Carbide-Oak Ridge), wrote to Beckman on January 28, 1974 (PX 100) complaining about the delay in parts shipment, and stated, “[s]uch delays in the long run can only hurt your company’s sales to those who purchase your products.” A Beckman internal memo dated June 11, 1971 (PX 36) also connects service to sales: The specific question of our service response versus Packard on Liquid Scintillation [at NIH] has been under considerable discussion recently. Our response time is generally within two days compared to Packard’s four-hour response. The basic question is whether the additional expense of beefing up to this level would be offset by increased sales. Although Beckman has only 30 percent of the total LS units at NIH, over the past six months 50 percent of the new purchases have been Beckman units. Finally, a March 14, 1972 memo from DePalma to Wilson (PX 83) regarding “Service Competition — Eastern Region” attaches a list of service competitors in the Philadelphia, Washington, Boston, and Mountainside districts, and states: I have purposely listed the competitors separately from this memo so that I may stress to you that entirely new concepts and philosophies should be adopted by Beckman in order to stay in the service business. Our accepted practice of hiring service people to repair our own instruments in an effort to protect present and future sales is at best short sighted. I think it is obvious by the attached list that there is interest in very prominent areas in the service business. BII should mature in its attitude toward service and provide service for service sake. Names like Bendix, GAF, Hoffman, LaRoche and Honeywell show us that we will not be able to hold on to what we have or what we think is proprietary. We are going to have to either grow and be competitive capability wise or subcontract service to one of the attached. The evidence received with respect to cross-elasticity of supply indicates that although 90% of its work involved servicing Beckman instruments, Spectrofuge did service the following non-Beckman instruments and UCs: Packard, Nuclear-Chicago, Perkin-Elmer, Cary, Instrumentation Laboratories, Unicam, Bausch & Lomb, Schoef-fel, Coleman, Gilford, du Pont/Sorvall, IEC, Lord’s and Zeiss. According to del Valle, Spectrofuge serviced these instruments because they were located in laboratories containing Beckman instruments which it was already servicing; non-Beckman instrument work was not the kind of business that Spectrofuge had been soliciting. In addition to UCs, Spectrofuge serviced liquid scintillation counters, amino acid analyzers, spectrophotometers, sequencers, Dynograph medical recorders, radiochromatogram scanners, sample oxidizers, pH meters, and balances. Despite del Valle’s testimony, Spectro-fuge’s almost total confinement to servicing Beckman equipment resulted not from lack of interest but lack of service capability. For example, Spectrofuge offered employment to various persons to achieve capability in Packard and Cary equipment (see the chart in text between notes 18 and 19, supra). In some cases, Spectrofuge could not bid on work because it had no one available and competent to service particular instruments in specific areas. The Trial Court elicited the following admission from del Valle, which summarizes the reason for Spectrofuge’s limited business: THE COURT: Well, is it true or is it not true, that in order for you to expand your business it is necessary for you to first find qualified men who can do the type of work you are engaged in? [del Valle]: Yes, sir. Beckman asserts that, as a matter of law, the relevant product market cannot be confined to servicing only Beckman scientific instruments or Beckman UCs. In United States v. du Pont & Co., 1956, 351 U.S. 377, 393, 76 S.Ct. 994, 1006, 100 L.Ed. 1264, the Supreme Court stated: Thus one can theorize that we have monopolistic competition in every nonstand-ardized commodity with each manufacturer having power over the price and production of his own product. However, this power that, let us say, automobile or . soft-drink manufacturers have over their trademarked products is not the power that makes an illegal monopoly. Illegal power must be appraised in terms of the competitive market for the product. [Tjhere are certain differences in the for-mulae for soft drinks but one can hardly say that each one is an illegal monopoly. Since du Pont it has generally been recognized that every manufacturer has a “natural” monopoly in the sale and distribution of his own products, especially when they are sold under a trademark (as Beckm