Full opinion text
Opinion by Judge BEEZER; Partial Concurrence and Partial Dissent by Judge GILLMOR. BEEZER, Circuit Judge: Plaintiffs-Appellees Image Technical Services, and ten other independent service organizations (“ISOs”) that service Kodak photocopiers and micrographie equipment sued the Eastman Kodak Co. (“Kodak”) for violations of the Sherman Act. The ISOs alleged that Kodak used its monopoly in the market for Kodak photocopier and micrographie parts to create a second monopoly in the equipment service markets. A jury verdict awarded treble damages totaling $71.8 million. The district court denied Kodak’s post trial motions and entered a ten year permanent injunction requiring Kodak to sell “all parts” to ISOs. Kodak filed a timely appeal, challenging the jury’s verdict, the ISOs’ evidence, the jury instructions, the damage awards and the permanent injunction. Kodak also seeks reversal on the basis of an alleged biased juror. This appeal raises questions relating to the application of antitrust principles upon a finding that a monopolist unilaterally refused to deal with competitors. We also address overlapping patent and copyright issues and their significance in the antitrust context. We have jurisdiction pursuant to 28 U.S.C § 1291 and we affirm in part, reverse in part and remand with instructions to amend the injunction. I Kodak manufactures, sells and services high volume photocopiers and micrographie (or microfilm) equipment. Competition in these markets is strong. In the photocopier market Kodak’s competitors include Xerox, IBM and Canon. Kodak’s competitors in the micrographics market include Minolta, Bell & Howell and 3M. Despite comparable products in these markets, Kodak’s equipment is distinctive. Although Kodak equipment may perform similar functions to that of its competitors, Kodak’s parts are not interchangeable with parts used in other manufacturers’ equipment. Kodak sells and installs replacement parts for its equipment. Kodak competes with ISOs in these markets. Kodak has ready access to all parts necessary for repair services because it manufactures many of the parts used in its equipment and purchases the remaining necessary parts from independent original-equipment manufacturers. In the service market, Kodak repairs at least 80% of the machines it manufactures. ISOs began servicing Kodak equipment in the early 1980’s, and have provided cheaper and better service at times, according to some customers. ISOs obtain parts for repair service from a variety of sources, including, at one time, Kodak. As ISOs grew more competitive, Kodak began restricting access to its photocopier and micrographic parts. In 1985, Kodak stopped selling copier parts to ISOs, and in 1986, Kodak halted sales of mierographie parts to ISOs. Additionally, Kodak secured agreements from their contracted original-equipment manufacturers not to sell parts to ISOs. These parts restrictions limited the ISOs’ ability to compete in the service market for Kodak machines. Competition in the service market requires that service providers have ready access to all parts. Kodak offers annual or multi-year service contracts to its customers. Service providers generally contract with equipment owners through multi-year service contracts. ISOs claim that they were unable to provide similar contracts because they lack a reliable supply of parts. Some ISOs contend that the parts shortage forced them out,of business. In 1987, the ISOs filed this action against Kodak, seeking damages and injunctive relief for violations of the Sherman Act. The ISOs claimed that Kodak both: (1) unlawfully tied the sale of service for Kodak machines with the sale of parts in violation of § 1 of the Sherman Act, and (2) monopolized or attempted to monopolize the sale of service for Kodak machines in violation of § 2 of the Sherman Act. Kodak moved for summary judgment prior to discovery. The district court allowed brief discovery and then granted summary judgment in Kodak’s favor. Image Technical Serv., Inc. v. Eastman Kodak Co., 1988 WL 156332 (N.D.Cal.). We reversed. Image Technical Serv., Inc. v. Eastman Kodak Co., 903 F.2d 612 (9th Cir.1990). Kodak appealed to the Supreme Court, which affirmed the denial of summary judgment. The Court held that the record disclosed sufficient factual disputes to survive summary judgment on both the § 1 and § 2 claims. Eastman Kodak Co. v. Image Technical Serv., Inc., 504 U.S. 451, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). The Supreme Court also held that Kodak’s lack of market power in the market for high volume photocopiers and micrographic equipment did not preclude, as a matter of law, the possibility of market power in the derivative aftermarkets for parts and service. Id. at 477, 112 S.Ct. at 2087. The Court recognized that resolution of other key issues required a more complete record. The Court concluded: In the end, of course, Kodak’s arguments may prove to be correct. It may be that its parts, service, and equipment are components of one unified market, or that the equipment market does discipline the aftermarkets so that all three are priced competitively overall, or that any anticompetitive effects of Kodak’s behavior are outweighed by its competitive effects. But we cannot reach these conclusions as a matter of law on a record this sparse. 504 U.S. at 486, 112 S.Ct. at 2092. After remand, the case proceeded to trial in the district court. Before closing arguments, the ISOs withdrew their § 1 tying and conspiracy claims. The remaining § 2 attempted monopolization and monopolization claims were submitted to the jury. A unanimous verdict awarded damages to the ISO’s totaling $71.8 million after trebling. Ten ISOs were awarded damages covering lost service profits in the amount of $12,172,-900 (before trebling) and six ISOs were awarded damages covering lost profits for used equipment sales totaling $11,775,400 (before trebling). After accepting the verdict, the district court crafted a ten year injunction requiring Kodak to sell all parts to ISOs on “reasonable and nondiseriminatory terms and prices.” The injunction required Kodak to sell: (1) all parts for Kodak equipment; (2) all parts described in Kodak’s Parts Lists; (3) all parts of supply items that are field replaceable by Kodak technicians; (4) all service manuals and price lists; and (5) all tools or devices “essential to servicing Kodak equipment.” II Section 2 of the Sherman Act prohibits monopolies, attempts to form monopolies, as well as combinations and conspiracies to do so. 15 U.S.C. § 2. The ISOs presented evidence in support of two § 2 theories: attempted monopolization and monopolization. They alleged, and the jury concluded, that Kodak used its monopoly over Kodak photocopier and micrographie parts to attempt to create and actually create a second monopoly over the service markets. To prevail on a § 2 attempt claim, the ISOs were required to establish: “(1) a specific intent to control prices or destroy competition; (2) predatory or anticompetitive conduct directed at accomplishing that purpose; (3) a dangerous probability of achieving ‘monopoly power,’ and (4) causal antitrust injury.” Rebel Oil Co., Inc. v. Atlantic Richfield, Co., 51 F.3d 1421, 1434 (9th Cir.) (citing McGlinchy v. Shell Chem. Co., 845 F.2d 802, 811 (9th Cir.1988)), cert. denied, — U.S. -, 116 S.Ct. 515, 133 L.Ed.2d 424 (1995). The requirements of a § 2 monopolization claim are similar, differing primarily in the requisite intent and the necessary level of monopoly power. See California Computer Products, Inc. v. International Business Machines Corp., 613 F.2d 727, 736-37 (9th Cir.1979). To prevail on a § 2 monopoly claim the ISOs were required to prove that Kodak: (1) possessed monopoly power in the relevant market and (2) willfully acquired or maintained that power. Kodak, 504 U.S. at 481, 112 S.Ct. at 2089-90 (citing United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1703-04, 16 L.Ed.2d 778 (1966)). Section 2 plaintiffs must also establish antitrust injury. See Cost Management Services, Inc. v. Washington Natural Gas Co., 99 F.3d 937, 949 (9th Cir.1996). Kodak primarily attacks the ISOs’ monopoly claim because success would likely upset the “attempt” verdict as well. We now address Kodak’s appeal against the background of the Supreme Court’s opinion in Kodak and the extensive record developed at trial. A. Market Power Kodak first attacks the ISOs’ monopoly power theory and its supporting evidence. Monopoly power is “the power to control prices or exclude competition.” Grinnell, 384 U.S. at 571, 86 S.Ct. at 1704 (quoting United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 1005, 100 L.Ed. 1264 (1956)). As noted, § 2 monopoly claims require a showing of monopoly power, commonly referred to as market power. See Cost Management Services, 99 F.3d at 950 n. 15. Market power can be proven by either direct or circumstantial evidence. Rebel Oil Co., Inc. v. Atlantic Richfield Co., 51 F.3d 1421, 1434 (9th Cir.1995). The ISOs offered proof of market power by both means. We hold that there is sufficient proof of market power by circumstantial evidence. We need not consider the ISOs’ direct evidence. To demonstrate market power by circumstantial evidence, a plaintiff must: “(1) define the relevant market, (2) show that the defendant owns a dominant share of that market, and (3) show that there are significant barriers to entry and show that existing competitors lack the capacity to increase their output in the short run.” Id. at 1434 (citations omitted). We review these requirements in turn. 1. We begin with the relevant market determination. The relevant market is the field in which meaningful competition is said to exist. See United States v. Continental Can Co., 378 U.S. 441, 449, 84 S.Ct. 1738, 1743, 12 L.Ed.2d 953 (1964). Generally, the relevant market is defined in terms of product and geography. See Rebel Oil, 51 F.3d at 1434; see, e.g., Oahu Gas Service, Inc. v. Pacific Resources, Inc., 838 F.2d 360, 364-65 (9th Cir.1988) (all propane sales in Hawaii). In Rebel Oil Co., Inc. v. Atlantic Richfield Co., we defined “market” as the group of sellers or producers who have the “actual or potential ability to deprive each other of significant levels of business.” 51 F.3d at 1434 (quoting Thurman Industries, Inc. v. Pay ‘N Pak Stores, Inc., 875 F.2d 1369, 1374 (9th Cir.1989)). Without a proper definition of the relevant market, it is impossible to determine a party’s influence over that market. Id. Ultimately what constitutes a relevant market is a factual determination for the jury. Id. at 1435. In Kodak, the Supreme Court noted two guiding principles pertinent to the relevant market definition here. First, the Court held that service and parts could constitute separate markets. Kodak, 504 U.S. at 462-63, 481-82, 112 S.Ct. at 2079-80, 2090. Second, the Supreme Court held that a single brand could constitute a separate market. Id. at 482, 112 S.Ct. at 2090. Thus, as to the market for Kodak parts, the ISOs proceeded on the theory that Kodak held monopolies over two relevant parts markets: the Kodak photocopier parts market and the Kodak micrographie parts market. Both markets, the ISOs argued, consisted of the entirety of necessaiy Kodak parts for that field of equipment. Kodak disagrees and argues that the district court erred in denying -its renewed motion for judgment as a matter of law, because the ISOs’ “all parts” market theory, upon which the jury relied to define the market, has no support in existing antitrust precedent. We review de novo the district court’s denial of Kodak’s renewed motion of judgment as a matter of law. Acosta v. City & County of San Francisco, 83 F.3d 1143, 1145 (9th Cir.), cert. denied, — U.S.-, 117 S.Ct. 514, 136 L.Ed.2d 403 (1996). We would be required to reverse the district court’s denial of Kodak’s motion if the evidence, construed in the light most favorable to the ISO’s, permits only one reasonable conclusion, and that conclusion is contrary to that of the jury’s. Id. On appeal and in their renewed motion for judgment as a matter of law, Kodak proposes a segmented parts market. It argues that because no two parts are interchangeable, the relevant markets for parts consist of the market for each individual part for Kodak photocopiers and each single part for Kodak micrographics equipment. Under Kodak’s theory there are not two relevant parts markets, but thousands of individual “part” markets. Kodak contends that the ISOs should have been required to demonstrate that they could not obtain particular nonpatented parts and that the failure to obtain that particular part resulted in a Kodak monopoly over service. We reject Kodak’s market definition. Kodak’s market definition focuses exclusively on the interchangeability of the parts although ignoring the “commercial realities” faced by ISOs and end users. Kodak, 504 U.S. at 482, 112 S.Ct. at 2090. In Kodak, the Supreme Court reasoned that: Because service and parts for Kodak equipment are not interchangeable with other manufacturers’ service and parts, the relevant market from the Kodak equipment owner’s perspective is composed of only those companies that service Kodak machines. Id. The Court also recognized however, that the market definition here could “be determined only after a factual inquiry into the ‘commercial realities’ faced by consumers.” Id. (citing Grinnell, 384 U.S. at 572, 86 S.Ct. at 1704). Consideration of the “commercial realities” in the markets for Kodak parts compels the use of an “all parts” market theory. The “commercial reality” faced by service providers and equipment owners is that a service provider must have ready access to all parts to compete in the service market. As the relevant market for service “from the Kodak equipment owner’s perspective is composed of only those companies that service Kodak machines,” id., the relevant market for parts from the equipment owners’ and service providers’ perspective is composed of “all parts” that are designed to meet Kodak photocopier and micrographics equipment specifications. The makers of these parts “if unified by a monopolist or a hypothetical cartel, would have market power in dealing with” ISOs and end users. Rebel Oil, 51 F.3d at 1436 (quoting Areeda & Hovenkamp, Antitrust Law, ¶ 518.1b, at 534 (Supp.1993)) (defining relevant “market”). Kodak argues that service providers’ need for all parts is not pertinent to the relevant market determination. Kodak, citing In re British Oxygen Co., 86 F.T.C. 1241 (1975), rev’d on other grounds, BOC Intern., Ltd. v. F.T.C., 557 F.2d 24 (2nd Cir.1977), analogizes to the automotive supplies market, arguing that the fact that automobile owners need tires, oil and gasoline does not mean that these elements constitute a single relevant market. The market for Kodak parts is distinguishable. First, Kodak parts, unlike tires, oil or gasoline, are not interchangeable with parts for other brands or equipment: the market for Kodak parts is a highly limited and specialized one. Second, the commercial reality for auto parts consumers does not necessitate that a retailer of tires, for example, also sell either gasoline or oil, or both. In the market for Kodak parts, a ready supply of all parts is needed to satisfy service contracts. See, e.g., Grinnell, 384 U.S. at 572, 86 S.Ct. at 1704 (“Central station companies recognize that to compete effectively, they must offer all or nearly all types of service.”). The ISOs argue that through its anticompetitive conduct Kodak has ensured that it will possess the only inventory of all parts for Kodak high volume photocopiers and micrographic equipment. Kodak’s argument that the Supreme Court did not squarely address the relevant market issue presented here is well taken. However, nothing in the Kodak opinion indicates that the Court envisaged any relevant market other than “all parts.” The Court analyzed three markets for photocopiers and micrographic equipment: equipment, parts and service. The Court referred to Kodak’s “parts monopoly,” 504 U.S. at 483, 112 S.Ct. at 2091, not its “parts monopolies,” and nothing in the opinion suggests that the Court labored under the misconception that all parts were interchangeable. Other factors compel our acceptance of an “all parts” market. In Brown Shoe Co. v. United States, the Supreme Court teaches that the boundaries of a relevant market: may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors. 370 U.S. 294, 325, 82 S.Ct. 1502, 1524, 8 L.Ed.2d 510 (1962) (defining “line of commerce” for the purposes of § 7 of the Clayton Act). The Brown Shoe factors applied here, particularly the lack of consumer recognition of individual part markets, the unique and specialized nature of the equipment and the singular use of “all parts” to service Kodak equipment, weigh in favor of an “all parts” market. Kodak does not point to record evidence which supports a contrary conclusion. The Supreme Court, relying on Brown Shoe, has held that groups of non-interchangeable products and services may be aggregated to form a single relevant market. See Grinnell, 384 U.S. at 572, 86 S.Ct. at 1704. In United States v. Philadelphia National Bank, for example, the Supreme Court coupled various banking services, including checking accounts, trust administration and credit functions, under the category of “commercial banking” in defining the relevant “line of commerce” under the Clayton Act. 374 U.S. 321, 356, 83 S.Ct. 1715, 1737, 10 L.Ed.2d 915 (1963). In JBL Enterprises, Inc. v. Jhirmack Enterprises, we likewise endorsed a relevant market defined as “the sale of beauty products” to “beauty salons and other professional outlets.” 698 F.2d 1011, 1016 (9th Cir.) (quoting JBL Enterprises, Inc. v. Jhirmack Enterprises, 509 F.Supp. 357, 369 (N.D.Cal.1981)). In that holding, we rejected the plaintiffs efforts to define the relevant market more narrowly as relating to specific beauty products at either the wholesale or the retail level. Id. at 1016. We commented that a “cluster approach is appropriate where the product package is significantly different from, and appeals to buyers on a different basis from, the individual products considered separately.” Id. at 1016-17. The market for Kodak parts is similarly amenable to this “cluster approach.” Kodak service customers view service providers with the assumption that such providers will be able to obtain any part necessary to complete the needed repairs. Kodak argues that the “cluster market” theory is inapplicable because in the market for Kodak parts no single competitor or manufacturer produces all the parts for Kodak photocopiers or micrographic equipment and thus “all parts” is not a relevant market. This argument is unpersuasive. Both ISOs and Kodak inventory and sell parts to self-service customers. Even if this were not true, that all providers do not offer the same “package” or cluster of goods or services is irrelevant. In United States v. Grinnell Corp., the Supreme Court held that the market for central alarm station services constituted a relevant market even though not all firms offered the same menu of alarm services. 384 U.S. at 572-73, n. 6, 86 S.Ct. at 1705 n. 6. The Supreme Court noted: “[w]e see no barrier to combining in a single market a number of different products or services where that combination reflects commercial realities.” Id. at 572, 86 S.Ct. at 1704. Kodak next contends, citing United States v. AT & T, 524 F.Supp. 1336 (D.D.C.1981), that because it makes some of the parts exclusively and does not make some parts at all, disparate market shares preclude aggregation of “all parts” for the purpose of the parts market. The district court in AT & T, held that: [i]f aggregating markets leads to the appearance of a causal link between defendants’ anticompetitive conduct and their monopoly power which disappears the moment the markets are treated separately, then clearly the aggregation would be improper. Id. at 1376 (citing 3 Areeda & Turner, ¶ 627b, 84). The AT & T court did not preclude aggregation of the markets in question because the anticompetitive conduct at issue transcended individual products; the anticompetitive conduct at issue extended to the “whole equipment spectrum.” Id. The district court concluded that “[i]n the interests of avoiding duplicative evidence and useless overburdening of the plaintiff’ it was not necessary to require the plaintiff to prove the defendant’s anticompetitive conduct in relation to “each piece of telecommunications equipment without close substitutes.” Id. Disaggregation is also unnecessary here because Kodak either manufactures or otherwise controls a monopoly share in most of the necessary parts. See Brown Shoe, 370 U.S. at 327-28, 82 S.Ct. at 1525 (aggregating shares in similar submarkets because “whether considered separately or together, the picture ... is the same.”). Aggregating the individual parts into a single “all parts” market for photocopiers and a single “all parts” market for micro-graphics equipment is also necessary for administrative convenience. Kodak photocopiers and micrographic equipment require thousands of individual parts and a supply of all parts is necessary in order to fulfill service contracts. To require the ISOs to prove that Kodak has monopoly power in thousands of markets would be both unduly burdensome and pointless. See id. at 327, 82 S.Ct. at 1525 (“Further division does not aid us----”). Moreover, aggregation does not prejudice Kodak because service providers need all parts to compete in the service market, and Kodak’s 100% monopoly power over the 30% of parts it manufactures suggests the same potential for control of the service market under an individual part market theory that the jury found using the “all parts” market. Kodak “can point to no advantage it would enjoy were finer divisions ... employed.” Id. Last, Kodak suggests that measuring market share in an “all parts” market could prove significantly over or under inclusive. Kodak argues that a firm believed to be monopolist could have a high aggregate share of the market that disguises the availability of alternative sources, or its seemingly small market share could conceal monopoly power over one crucial part. This argument, however, only demonstrates why the Supreme Court in Kodak emphasized the factual nature of the relevant market inquiry. 504 U.S. at 482, 112 S.Ct. at 2090. Each ease is burdened with its unique facts that affect the parameters of the relevant market. Kodak has both undisputed 100% monopoly shares for certain parts and an alleged monopoly share in the entire parts market. 2. Next we turn to the second monopoly power element: market share. A plaintiff relying on circumstantial evidence to establish a § 2 monopolization claim must show that the defendant owned a “dominant share” of the market. Rebel Oil, 51 F.3d at 1434. Calculation of the market share allows for a proper understanding of the defendant’s influence and relative power in the relevant market. A dominant share of the market often carries with it the power to control output across the market, and thereby control prices. Id. at 1437. Courts generally require a 65% market share to establish a prima facie case of market power. See American Tobacco Co. v. United States, 328 U.S. 781, 797, 66 S.Ct. 1125, 1133, 90 L.Ed. 1575 (1946). In Kodak, the Supreme Court stated that Kodak’s possession of monopoly power was “easily resolved.” 504 U.S. at 481, 112 S.Ct. at 2089-90. The Court relied on its earlier discussion of the § 1 claim, where it held that the ISOs had “presented a triable claim that Kodak ha[d] the ‘power to control prices or exclude competition’ in service and parts.” Id. Noting that “monopoly power” under § 2 requires “something greater than market power under § 1,” the Court held that the “evidence that Kodak controls nearly 100% of the parts market and 80% to 95% of the service market, with no readily available substitutes ... sufficient to survive summary judgment____” Id. Kodak challenges the district court’s market share instruction and the ISOs’ market share evidence. Specifically, Kodak objects to the calculation of its market share by the aggregation of the percentage of parts manufactured by Kodak with the percentage of parts manufactured by original-equipment manufacturers. At trial the ISOs asserted that Kodak controls the entire parts market for its high volume photocopier and micro-graphics equipment by refusing to sell the parts it manufactures, 30% of the total parts needed, and by imposing restrictions on both the independent original-equipment manufacturers and end users. Kodak argues that because the ISOs withdrew their conspiracy claim they are precluded from adding the shares held by the allegedly restricted original-equipment manufacturers to Kodak’s market share. We need not consider Kodak’s challenge to Jury Instruction No. 27, the controlling instruction, as Kodak failed to object to that instruction and thus did not preserve this argument for appeal. Failure to object to an instruction waives review. Hammer v. Gross, 932 F.2d 842, 847-48 (9th Cir.1991) (no plain error exception exists in civil cases in this circuit). Instruction No. 27 states in relevant part: Among other factors [indicative of monopoly power], you may wish to consider ... whether Kodak restricts, directly or indirectly, the ability of its supplier to sell to others____ Instruction No. 27 allows for the aggregation of Kodak’s market share with the market shares of the restricted original-equipment manufacturers. Kodak also agreed to Instruction No. 26, which required the jury to find a 65% market share in order to find monopoly power. We review Kodak’s sufficiency of the evidence claim under the controlling instruction. We review a jury’s verdict for substantial evidence. Davis v. Mason County, 927 F.2d 1473, 1486 (9th Cir.1991). Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion even if it is possible to draw two inconsistent conclusions from the evidence. Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir.1994). We hold that substantial evidence supports the jury’s finding that Kodak controlled a monopoly share in the market for Kodak parts through: (1) its own manufacture of Kodak parts (30%); (2) its control of original-equipment manufacturers’ sale of Kodak parts to ISOs through tooling clauses (20-25%), engineering clauses and other proprietary arrangements (exact percentage unknown); and (3) its discouragement of self-servicing and resale of parts by end users. The ISOs provided substantial evidence that the dearth and poor quality of used parts and replacement parts, not manufactured or designed by Kodak, created a shortage of available substitutes. Kodak maintains, unpersuasively, that the ISOs failed to prove that parts were absolutely unavailable. According to Kodak, for each ISO that could not get a part, another could, and consequently, the ISO’s anecdotal evidence was insufficient to demonstrate market share. The record proves otherwise. The record contains substantial evidence showing that parts were virtually unavailable for post-1986 models and often difficult to obtain for older models. Kodak itself admitted that the availability of parts was “limited.” That one ISO acquired parts by buying Kodak equipment and stripping them for parts, as Kodak contends, does little to rebut Kodak’s monopoly power in the parts markets. The ISOs were not required to prove that Kodak had total control over .every new and used part. The record also establishes the following: Alan Conklin, who supervised the acquisition of parts for Kodak’s photocopier and micrographics equipment, testified that Kodak manufactured roughly 30% of its own parts. Kodak argues that other manufacturers also produced substitutes for these parts, but its reference to the record merely shows that original-equipment manufacturers could, if Kodak chose, make almost all of Kodak’s parts. Kodak also acknowledges that suppliers would not sell “proprietary” parts and Conklin testified that all parts which original-equipment manufactures produce for Kodak must meet specifications. The jury could rationally conclude that the oft-used term “proprietary” covered most if not all parts made for Kodak.- ISO owners and employees testified that they could not purchase parts from independent original-equipment manufacturers. Several testified that they could not obtain any parts for post-1986 photocopiers and micrographic equipment. Kodak’s argument that its tooling and engineering clauses were routine and legal is irrelevant. Legal actions, when taken by a monopolist, may give rise to liability if anti-competitive. See Greyhound Computer v. International Business Machines, 559 F.2d 488, 499 (9th Cir.1977). Kodak correctly argues that the ISOs never precisely quantified Kodak’s parts market shares. In his closing, counsel for the ISOs based Kodak’s market share on its 30% manufacturing share, its 20% share controlled by tooling clauses and an unquantified share of production which was restricted by engineering clauses. Nonetheless, given the state of the record, a reasonable jury could conclude that Kodak had a share of the markets for photocopier and micrographic equipment parts of 65% or more. Moreover, even if the ISOs only succeeded in proving a share near 50%, this would suffice to support a jury finding of market power for the purposes of the ISOs’ attempted monopolization claim. Rebel Oil, 51 F.3d at 1438, n. 10 (declining to adopt bright line 50% threshold for attempt). In Rebel Oil, we held that a 44% market share demonstrates market power “if entry barriers are high and competitors are unable to expand their output in response to supra-competitive pricing.” Id. 3. The third and final monopoly power factor concerns barriers to market entry and barriers to expansion. Rebel Oil, 51 F.3d at 1439. A § 2 plaintiff, establishing monopoly power by circumstantial evidence, must establish more than just market share. Even a 100% monopolist may not exploit its monopoly power in a market without entry barriers. See Los Angeles Land Co. v. Brunswick Corp., 6 F.3d 1422, 1427 (9th Cir.1993) (citation omitted). A § 2 plaintiff must show that new competitors face high market barriers to entry and that current competitors lack the ability to expand their output to challenge a monopolist’s high prices. Rebel Oil, 51 F.3d at 1439. Barriers to entry “must be capable of constraining the normal operation of the market to the extent that the problem is unlikely to be self-correcting.” Id., 51 F.3d at 1439 (citing United States v. Syufy Enterprises, 903 F.2d 659, 663 (9th Cir.1990)). Common entry barriers include: patents or other legal licenses, control of essential or superior resources, entrenched buyer preferences, high capital entry costs and economies of scale. Id. Kodak argues that the ISOs failed to prove meaningful entry barriers. The record proves otherwise. Kodak has 220 patents and controls its designs and tools, brand name power and manufacturing capability. Kodak controls original-equipment manufacturers through various contract arrangements. Kodak has consistently maintained a high share of the service market. These factors together with the economies of scale, support a finding of high barriers to entry by new manufacturers and to increased output by established suppliers. See Reazin v. Blue Cross and Blue Shield of Kansas, Inc., 899 F.2d 951, 968 (10th Cir.1990) (“Entry barriers may include high capital costs or regulatory or legal requirements such as patents or licenses.”). Kodak fails to rebut this evidence. Kodak focuses on the testimony of an ISO witness who stated: “[y]ou could get in my business tomorrow if you had the expertise.” That witness, however, also identified capital and consumer demand as other significant barriers to market entry. Although some new entry was possible, the record reflects substantial evidence of entry barriers sufficient to prevent Kodak’s monopoly share from self-correcting. See Rebel Oil, 51 F.3d at 1440-41 (“Barriers may still be ‘significant’ if the market is unable to correct itself despite the entry of small rivals.”). Kodak claims that the same witness testified that he could make any part if ISOs servicing a total of 2.000 machines would buy the part. The witness actually only agreed that he would “supply more Kodak parts,” if there were 2.000 machines needing them. We reject Kodak’s sufficiency of the evidence claim. B. Use of Monopoly Power The second element of a § 2 monopoly claim, the “conduct” element, is the use of monopoly power “to foreclose competition, to gain a competitive advantage, or to destroy a competitor.” Kodak, 504 U.S. at 482-83, 112 S.Ct. at 2090 (quoting United States v. Griffith, 334 U.S. 100, 107, 68 S.Ct. 941, 945, 92 L.Ed. 1236 (1948)). The ISOs proceeded under a “monopoly leveraging” theory, alleging that Kodak used its monopoly over Kodak parts to gain or attempt to gain a monopoly over the service of Kodak equipment. The Supreme Court endorsed this theory in Kodak noting: “If Kodak adopted its parts and service policies as part of a scheme of willful acquisition or maintenance of monopoly power, it will have violated § 2.” Id. (citations omitted). ‘Willful acquisition” or “maintenance of monopoly power” involves “exclusionary conduct,” not power gained “from growth or development as a consequence of a superior product, business acumen, or historic accident.” Grinnell, 384 U.S. at 570-71, 86 S.Ct. at 1704. Kodak attacks the district court’s monopoly conduct jury instructions as well as the ISOs’ evidence establishing Kodak’s exclusionary conduct. A challenge to a jury instruction on the grounds that it misstates the relevant elements is a question of law reviewed de novo. Caballero v. Concord, 956 F.2d 204, 206 (9th Cir.1992). As noted, the jury’s verdict will stand if supported by substantial evidence. 1. Kodak’s chief complaint with the monopoly power jury instructions lies with Jury Instruction No. 29. That Instruction, entitled “Monopolization — Monopoly Conduct,” states in relevant part: [a] company with monopoly power in a relevant market has no general duty to cooperate with its business rivals and may refuse to deal with them or with their customers if valid business reasons exist for such refusal. It is unlawful, however, for a monopolist to engage in conduct, including refusals to deal, that unnecessarily excludes or handicaps competitors in order to maintain a monopoly. (emphasis added). Kodak argues that this instruction lacks objective standards and improperly includes within the prohibited activities a lawful monopolist’s “aggressive” competition. Specifically, Kodak challenges Instruction No. 29’s “unnecessarily excludes or handicaps competitors” language. Kodak says that this language is based on a form of “monopoly leveraging” that we previously rejected in Alaska Airlines, Inc. v. United Airlines, Inc., 948 F.2d 536, 543 (9th Cir.1991). In Alaska Airlines we did reject the Second Circuit’s holding in Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263 (2d Cir.1979). Berkey Photo recognized liability under § 2 of the Sherman Act on a theory of monopoly leveraging involving a firm which used “its monopoly power in one market to gain a competitive advantage in another, albeit without an attempt to monopolize the second market.” 603 F.2d at 275. In Alaska Airlines, we held that “monopoly leveraging” could not exist as a basis for § 2 liability in the absence of the defendant using its monopoly in one market to monopolize or attempt to monopolize the downstream market. 948 F.2d at 547. We characterized Berkey Photo’s downstream monopoly requirement — “to gain a competitive advantage” — as too “loose.” Alaska Airlines, 948 F.2d at 546. Kodak accuses the district court of incorporating Berkey Photo’s repudiated language into the court’s instructions. We disagree. Instruction No. 29 required the jury to find that Kodak’s monopoly conduct be undertaken “in order to maintain a monopoly” in the downstream market. Berkey Photo ’s watered-down standard does not go this far. Instruction No. 29 makes clear that the monopolies at issue are Kodak’s alleged service monopolies and the Instruction required the jury to find that Kodak acted in furtherance of maintaining its service monopolies. Instruction No. 29’s “unnecessarily excludes or handicaps competitors” language does not come from Berkey Photo, but from the jury instruction endorsed by the Supreme Court in Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 597, 611, 105 S.Ct. 2847, 2854-55, 2861-62, 86 L.Ed.2d 467 (1985). 2. Kodak also objects to the attempted monopolization and monopolization jury instructions on the grounds that they fail to describe adequately the “essential facilities” doctrine, which Kodak contends is the controlling law in unilateral refusal to deal cases. Kodak asserts that this doctrine is the sole legal theory which could require Kodak to sell “all parts.” Kodak argues that the essential facilities doctrine required the jury to find that Kodak’s parts monopoly carries “the power to eliminate competition.” Kodak’s challenge raises a novel issue: whether a monopolist is liable under § 2 of the Sherman Act for an anticompetitive refusal to deal only under an “essential facilities” theory, that is, only when the refusal involves something “essential” to the survival of competitors. As noted, Kodak would answer affirmatively; we reject this theory. Instead, relying on Kodak and Aspen Skiing, we endorse the ISOs’ theory that § 2 of the Sherman Act prohibits a monopolist from refusing to deal in order to create or maintain a monopoly absent a legitimate business justification. We need not apply the essential facilities doctrine. Section 2 of the Sherman Act prohibits a monopolist’s unilateral action, like Kodak’s refusal to deal, if that conduct harms the competitive process in the absence of a legitimate business justification. See Kodak, 504 U.S. at 483 n. 32, 112 S.Ct. at 2090 n. 32 (citing Aspen Skiing, 472 U.S. at 602, 105 S.Ct. at 2857). Unilateral refusals to deal often concern an “essential” facility. See Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973). In Alaska Airlines, we defined the essential facilities doctrine, generally, as: imposing “liability when one firm, which controls an essential facility, denies a second firm reasonable access to a product or service that the second firm must obtain to compete with the first.” 948 F.2d at 542. A facility is “essential” if it is otherwise unavailable and cannot be “reasonably or practically duplicated.” Anaheim v. Southern California Edison Co., 955 F.2d 1373, 1380 (9th Cir.1992). In Otter Tail Power Co. v. United States, the Supreme Court held that the defendant, Otter Tail Power, used its electrical utility equipment, an “essential facility,” to gain monopoly power over all commercial electrical services. 410 U.S. at 377-79, 93 S.Ct. at 1029-30. Otter Tail Power generally sold both wholesale and retail electrical services. Later it refused to provide only wholesale electrical services to several municipalities which intended to supply retail electrical services to the ultimate customers. The Court held that Otter Tail Power’s refusal to supply “only wholesale” services eliminated competition in the downstream market for retail services as Otter Tail Power owned the only “facility” capable of supplying these services. The Court held that such “exclusionary” conduct violated § 2 of the Sherman Act. Id. In Alaska Airlines, we interpreted Otter Tail as requiring plaintiffs proceeding under the “essential facilities” doctrine to establish that the controlled facility “carries with it the power to eliminate competition in the downstream market.” 948 F.2d at 544; see, e.g., Twin Laboratories, Inc. v. Weider Health & Fitness, 900 F.2d 566, 569 (2d Cir.1990) (“A successful ‘essential facilities’ plaintiff must prove that denial of access has caused it ‘severe handicap’ [in the market].”). Kodak faults the district court for failing to instruct the jury that to be liable under § 2, Kodak’s exclusionary conduct must have “eliminated competition” in the downstream service market. The Supreme Court has never explicitly held that a § 2 refusal to deal claim can only be established under the “essential facilities” rubric. In Kodak the Supreme Court never discussed the essential facilities doctrine; nor do any of the cases cited by the Court employ the essential facilities analysis. See 504 U.S. at 483, 112 S.Ct. at 2090-91 (citing Grinnell Corp., 384 U.S. at 570-71, 86 S.Ct. at 1703-04; United States v. Aluminum Co. of America, 148 F.2d 416, 432 (2d Cir.1945), and Aspen Skiing, 472 U.S. at 600-605, 105 S.Ct. at 2856-59). Rather in discussing a firm’s right to “refuse to deal with its competitors,” the Supreme Court noted, citing Aspen Skiing, that this right “exists only if there are legitimate competitive reasons for the refusal.” Kodak, 504 U.S. at 483 n. 32, 112 S.Ct. at 2091 n. 32. The Supreme Court considered a refusal to deal claim in Aspen Skiing without referencing the essential facilities doctrine. Aspen Skiing involved a § 2 challenge by one Aspen ski resort against the owner of the remaining three ski resorts in Aspen, a monopolist in the recreational ski market. The plaintiff proceeded under an essential facilities theory alleging that a previously available “all-Aspen” ski pass, granting the holder access to all four Aspen ski areas, was an essential facility. The jury agreed and awarded damages. The Tenth Circuit affirmed. Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 738 F.2d 1509, 1517-23 (10th Cir.1984). The Supreme Court also affirmed, but did not rely on the “essential facilities” doctrine. Aspen Skiing, 472 U.S. at 611 n. 44, 105 S.Ct. at 2862 n. 44 (“Given our conclusion that the evidence amply supports the verdict under the instructions as given by the trial court, we find it unnecessary to consider the possible relevance of the ‘essential facilities’ doctrine....”). The Supreme Court began its analysis in Aspen Skiing with a discussion of the “right to refuse to deal,” a right the Court characterized as highly valued but not “unqualified.” Id. at 601, 105 S.Ct. at 2856. The Court, quoting extensively from Lorain Journal Co. v. United States, 342 U.S. 143, 155, 72 S.Ct. 181, 187, 96 L.Ed. 162 (1951), held that the right to refuse to deal was “neither absolute nor exempt from regulation” and when used “as a purposeful means of monopolizing interstate commerce” the ex-ereise of that right violates the Sherman Act. Aspen Skiing, 472 U.S. at 602, 105 S.Ct. at 2857. Thus “the long recognized right ... [to] freely [ ] exercise [one’s] own independent discretion as to parties with whom he will deal” does not violate the Sherman Act “[i]n the absence of any purpose to create or maintain a monopoly.” Id. (quoting Lorain Journal 342 U.S. at 155, 72 S.Ct. at 187) (emphasis in the original) (citations omitted). In Aspen Skiing the Court noted that a defendant’s refusal to deal was evidence of its’ intent “relevant to the question whether the challenged conduct is fairly characterized as ‘exclusionary’ or ‘anticompetitive’ — to use the words in the trial court’s instructions — or ‘predatory,’ to use a word that scholars seem to favor.” Id. Next, the Court reasoned that a monopolist’s refusal to deal was not limited to the specific facts of Lorain Journal, but also covered the Aspen Skiing defendant-monopolist’s election “to make an important change in a pattern of distribution that had originated in a competitive market and had persisted for several years.” Id. at 603, 105 S.Ct. at 2858. The Court noted that competitors in other markets continued to use interchangeable lift tickets and thus inferred that “such tickets satisfy consumer demand in free competitive markets.” Id. The Court concluded that although such conduct was not “necessarily anticompetitive,” the posture of the case and the strength of the evidence presented compelled the Court to uphold the jury’s finding of liability. The Court noted that the challenged instructions correctly required the jury to distinguish “between practices which tend to exclude or restrict competition on the one hand, and the success of a business which reflects only a superior product, a well-run business, or luck, on the other.” Id. Other instructions properly informed the jury that the defendant’s refusal to deal “does not violate Section 2 if valid business reasons exist for that refusal.” Id. at 605, 105 S.Ct. at 2858. By ignoring the essential facilities doctrine in Aspen Skiing, the Supreme Court endorsed the application of traditional § 2 principles to unilateral refusal to deal cases. Jury Instructions Nos. 28 and 29 here covered the requirements set forth in Aspen Skiing. Like the Supreme Court in Aspen Skiing, we are faced with a situation in which a monopolist made a conscious choice to change an established pattern of distribution to the detriment of competitors. Id. at 603, 105 S.Ct. at 2858. Although the service market prior to Kodak’s parts policy had not “originated in a competitive market and persisted for several years,” id., the ISO service market had existed for three years and was growing rapidly before Kodak implemented its parts policy. Our case is factually distinguishable from Aspen Skiing in several respects: here there are no readily comparable competitive markets; ISO profits were not halved after the imposition of the anticompetitive policies; and there are two markets at issue, rather than only one. Further, unlike most essential facilities cases and this case, Aspen Skiing did not involve the effects of a supplier’s refusal to deal with its customers in order to control a downstream market. Notwithstanding these distinctions, both the analysis in Aspen Skiing and Kodak footnote 32 suggest that Aspen Skiing applies here. Like the First Circuit in Data General v. Grumman Systems Support, 36 F.3d 1147 (1st Cir.1994), we believe the Supreme Court, in Aspen Skiing, endorsed a more general application of § 2 principles to refusal to deal cases. See Data General, 36 F.3d at 1183-84 (plaintiff alleging § 2 refusal to deal claim “need not tailor its argument to a preexisting ‘category of unilateral refusals to deal.”). The district court’s Jury Instruction No. 29 was proper. 3. Kodak next attacks the jurys verdict on the grounds that the ISOs failed to present a theory of aftermarket monopoly that makes economic sense as required by Kodak Kodak contends that at trial the ISOs dropped the economic theory they advanced before the Supreme Court, and under their new theory they failed to prove that the equipment market does not discipline the aftermarkets in such a way as to prevent monopoly power. We review Kodak’s claim only for plain error because Kodak failed to move for judgment as a matter of law under Federal Rule of Civil Procedure Rule 50(a) at the close of the evidence. Cabrales v. County of Los Angeles, 864 F.2d 1454, 1459 (9th Cir.1988), vacated on other grounds, 490 U.S. 1087, 109 S.Ct. 2425, 104 L.Ed.2d 982 (1989). We strictly adhere to the requirements of Rule 50(b), which prohibit a party from moving for a judgment as a matter of law after the jury’s verdict unless that motion was first presented at the close of evidence. Sloman v. Tadlock, 21 F.3d 1462, 1473 (9th Cir.1994). Kodak, relying on out-of-circuit authority, argues that a party need not move for judgment as a matter of law when such a motion would be futile. See Pittsburgh-Des Moines Steel Co. v. Brookhaven Manor Water Co., 532 F.2d 572, 577 (7th Cir.1976); Albrecht v. Herald Co., 452 F.2d 124, 127 (8th Cir.1971). We have explicitly rejected the Seventh Circuit’s subjective approach to Rule 50. Farley Transp. Co., Inc. v. Santa Fe Trail Transp. Co., 786 F.2d 1342, 1346 n. 2 (9th Cir.1985). Further, the district court’s denial of Kodak’s motion for summary judgment on this issue did not render a Rule 50(a) motion futile because, as Kodak repeatedly argues, the ISOs did not present the same evidence at trial that both the Supreme Court and district court considered at summary judgment. The record discloses that the ISOs presented sufficient evidence to establish Kodak’s monopoly power in the service market. Under the plain error standard we inquire no further. We reverse under plain error only if “there is an absolute absence of evidence to support the jury’s verdict.” Cabrales, 864 F.2d at 1459. The record reflects the following: Kodak has a 95% share of the Kodak high volume photocopier service market and an 88% share of the Kodak micrographic service market. Several ISOs withdrew from the Kodak service market or substantially restricted their service due to the lack of available parts, although other ISOs made substantial profits and continued to grow steadily. Some ISOs could not obtain any parts for newer models, indicating that the current ISO service market may last only as long as the pre-1986 models survive. Kodak equipment customers experienced the “lock-in” and information imperfections as described in Kodak, 504 U.S. at 477, 112 S.Ct. at 2087-88 (“there is a question of fact whether information costs and switching costs foil the simple assumption that the equipment and service markets act as pure complements to one another.”). Kodak’s market share in the equipment market further limits choices by consumers. Finally, although Kodak criticizes their methodology, the ISOs presented evidence that Kodak earns supracompetitive profits in service, and overall. Substantial evidence supports the jury’s verdict on the issue of Kodak’s service market monopoly. Ill Our conclusion that the ISOs have shown that Kodak has both attained monopoly power and exercised exclusionary conduct does not end our inquiry. Kodak’s conduct may not be actionable if supported by a legitimate business justification. When a legitimate business justification supports a monopolist’s exclusionary conduct, that conduct does not violate § 2 of the Sherman Act. See Kodak, 504 U.S. at 483, 112 S.Ct. at 2090-91; Oahu Gas, 838 F.2d at 368. A plaintiff may rebut an asserted business justification by demonstrating either that the justification does not legitimately promote competition or that the justification is pretextual. See Kodak, 504 U.S. at 483-84, 112 S.Ct. at 2090-91 (citing Kodak, 903 F.2d at 618). Kodak asserts that the protection of its patented and copyrighted parts is a valid business justification for its anticompetitive conduct and argues that the district court’s erroneous jury instructions made it impossible for the jury to properly consider this justification. Kodak attacks the district court’s failure both to-provide a “less restrictive alternatives” instruction, and to instruct as to Kodak’s intellectual property rights. Jury instructions “must be formulated so that they fairly and adequately cover the issues presented, correctly state the law, and are not misleading.” Knapp v. Ernst & Whinney, 90 F.3d 1431, 1437 (9th Cir.1996), cert. denied, — U.S. —, 117 S.Ct. 952, 136 L.Ed.2d 839 (1997). To the extent that Kodak alleges error in the district court’s formulation of the instructions, we consider the instructions as a whole and apply an abuse of discretion standard to determine if they are “misleading or inadequate.” Id. (citation omitted). To the extent that Kodak argues that the district court misstated the elements the ISOs were required to prove at trial, we review the instructions de novo. Id. A. Least Restrictive Alternatives Kodak argues that the district court erred by failing to instruct the jury that it was not to consider whether Kodak could have accomplished its business objectives through less restrictive alternatives. Kodak also questions the sufficiency of the ISOs’ pretext evidence. The ISOs counter that Kodak waived its arguments regarding business justifications by failing to move for judgment as a matter of law. We disagree. To the extent that Kodak’s arguments focus on the jury instructions and not the general sufficiency of the evidence, Rule 50(b) does not apply. Kodak argues that monopolization, unlike tying, does not require consideration of whether the defendant could have achieved its aims through less restrictive alternatives. Kodak, however, cites no authority mandating an instruction requiring that the jury not consider “less restrictive alternatives.” Kodak’s argument rests on the combination of the district court’s refusal to use Kodak’s requested language and Kodak’s disagreement with the “unnecessarily excludes or handicaps competitors” language of Jury Instruction Nos. 29 and 34. As a result of this combination, Kodak argues, the ISOs were able to argue a “necessity” standard and ask the jury to weight what Kodak did “against the alternatives.” As discussed above, the “unnecessarily excluded or handicaps” language was permissible under Aspen Skiing. Moreover, the district court’s instruction here, Instruction No. 28, was very similar to both the language proposed by Kodak and the language endorsed by the Supreme Court in Aspen Skiing, 472 U.S. at 597, 105 S.Ct. at 2854-55. Jury Instruction No. 28 defines “exclusionary conduct” as impairing “the efforts of others to compete for customers in an unnecessarily restrictive way.” The district court also instructed that: (1) Kodak could refuse to deal if valid business reasons existed and (2) the jury could not “second guess whether Kodak’s business judgment was wise or correct in retrospect.” Under these instructions the jury could not consider “less restrictive alternatives” without “second guessing” Kodak and thus violating the jury instructions. We presume that the jury followed the court’s instructions. United States v. Alston, 974 F.2d 1206, 1210 (9th Cir.1992). Kodak next argues that the ISOs’ primary arguments refuting Kodak’s business justifications were “less restrictive alternative” arguments. Kodak focuses on the ISOs’ attack on Kodak’s quality control justification as one such “less restrictive alternative” argument. Kodak argues that because “the legitimacy of quality control is beyond reproach,” the ISOs were forced to establish this justification, and others, were pretextual. The ISOs did establish pretext: they attacked Kodak’s quality control justification on the grounds that it was pretextual, not because it was the least restrictive alternative. Counsel for the ISOs argued that Kodak’s quality control justification was “a joke” because ISOs do not interfere with the quality of Kodak’s service. We hold that the district court did not err in its instructions. Kodak has waived its insufficiency of evidence claim on this issue by failing to move for judgment as a matter of law at trial. We review only for plain error. Cabrales, 864 F.2d at 1459. The ISOs’ evidence suffices to support the jury’s rejection of Kodak’s business justifications, as the record reflects evidence of pretext. The ISOs presented evidence that: (1) Kodak adopted its parts policy only after an ISO won a contract with the State of California; (2) Kodak allowed its own customers to service their machines; (3) Kodak customers could distinguish breakdowns due to poor service from breakdowns due to parts; and (4) many customers preferred ISO service. B. Intellectual Property Rights Kodak also attacks the district court’s business justifications instructions for then-failure to properly detail Kodak’s intellectual property rights. Kodak argues that the court failed to instruct the jury that Kodak’s numerous patents and copyrights provide a legitimate business justification for Kodak’s alleged exclusionary conduct. Kodak holds 220 valid United States patents covering 65 parts for its high volume photocopiers and micrographics equipment, and all Kodak diagnostic software and service software are copyrighted. The jury instructions do not afford Kodak any “rights” or “privileges” based on its patents and copyrights: all parts are treated the same. In Jury Instruction No. 37, the court told the jury: [i]f you find that Kodak engaged in monopolization or attempted monopolization by misuse of its alleged parts monopoly ... then the fact that some of the replacement parts are patented or copyrighted does not provide Kodak with a defense against any of those antitrust claims. In Jury Instruction No. 28, the court stated, over Kodak’s objection, that: [sjuch [exclusionary] conduct does not refer to ordinary means of competition, like offering better products or services, exercising superior skill or business judgment, utilizing more efficient technology, or exercising natural competitive advantages. Kodak proposed to include “exercising lawful patents and copyrights” amongst the list of non-exclusionary conduct in Instruction No. 28, but the district court rejected that language. Kodak’s challenge raises unresolved questions concerning the relationship between federal antitrust, copyright and patent laws. In particular we must determine the significance of a monopolist’s unilateral refusal to sell or license a patented or copyrighted product in the context of a § 2 monopolization claim based upon monopoly leveraging. This is a question of first impression. 1. We first identify the general principles of antitrust, copyright and patent law as we must ultimately harmonize these statutory schemes in responding to Kodak’s challenge. Antitrust law seeks to promote and protect a competitive marketplace for the benefit of the public. See Standard Oil Co. v. United States, 221 U.S. 1, 58, 31 S.Ct. 502, 515, 55 L.Ed. 619 (1911); SCM Corp. v. Xerox Corp., 645 F.2d 1195, 1203 (2d Cir.1981). The Sherman Act, the relevant antitrust law here, prohibits efforts both to restrain trade by combination or conspiracy and the acquisition or maintenance of a monopoly by exclusionary conduct. 15 U.S.C. §§ 1, 2. Patent law seeks to protect inventions, while inducing their introduction into the market for public benefit. SCM Corp., 645 F.2d at 1203. Patent laws “reward the inventor with the power to exclude others from making, using or selling [a patented] invention throughout the United States.” Id. Meanwhile, the public benefits both from the faster introduction of inventions, and the resulting increase in market competition. Legally, a patent amounts to a permissible monopoly over the protected work. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 135, 89 S.Ct. 1562, 1583, 23 L.Ed.2d 129 (1969). Patent laws “are in pari materia with the antitrust laws and modify them pro tanto (as far as the patent laws go).” Simpson v. Union Oil Co., 377 U.S. 13, 24, 84 S.Ct. 1051, 1058, 12 L.Ed.2d 98 (1964). Federal copyright law “secure[s] a fair return for an author’s creative labor” in the short run, while ultimately seeking “to stimulate artistic creativity for the general public good.” Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975) (internal quotations omitted). The Copyright Act grants to the copyright owner the exclusive right to distribute the protected work. 17 U.S.C. § 106. This right encompasses the right to “refrain from vending or licensing,” as the owner may “content [itself] with simply exercising the right to exclude others from using [its] property.” Data General, 36 F.3d at 1186 (quoting Fox Film Corp. v