United States v. Surgical Instrument Service Company, Inc. V. Intuitive Surgical, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SURGICAL INSTRUMENT
SERVICE COMPANY, INC.,

Plaintiff-ctr-defendant -
Appellant,

v.

INTUITIVE SURGICAL, INC.,

Defendant-ctr-claimant -
Appellee.
No. 25-1372
D.C. No.
3:21-cv-03496-
AMO

OPINION

Appeal from the United States District Court
for the Northern District of California
Araceli Martinez-Olguin, District Judge, Presiding

Argued and Submitted June 25, 2026
San Francisco, California

Filed August 13, 2026

Before: Mary H. Murguia, Chief Judge, and Lucy H. Koh
and Holly A. Thomas, Circuit Judges.

Opinion by Judge Koh

2 SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC.
SUMMARY
*

Antitrust

The panel held that the district court erred in requiring
Plaintiff Surgical Instrument Service Co., Inc. (“SIS”) to
prove certain factors known as the “Kodak/Epic factors” in
order to prove its antitrust claims against Defendant Intuitive
Surgical, Inc. (“Intuitive”). At trial, SIS introduced evidence
that Intuitive possesses more than 99% market share in the
market for surgical robots used in minimally invasive soft-
tissue (“MIST”) surgery—the “foremarket”—and 100%
market share in the robot attachment instruments used in
such surgeries—the “aftermarket.” The district court
decided to instruct the jury that, in order to establish that
SIS’s proposed aftermarket is a valid antitrust market, SIS
needed to prove the Kodak/Epic factors.
The panel held that the district court’s jury instruction
was erroneous. The panel explained that the Kodak/Epic
factors apply only in cases where the plaintiff cannot show
that the defendant possesses market power in the competitive
foremarket and instead seeks to bring a “Kodak-style”
antitrust claim alleging abuse of market power in a
downstream, single-brand aftermarket. Here, however, SIS
presented evidence at trial demonstrating that Intuitive
leveraged its near-100% market share in the foremarket for
MIST surgical robots to obtain and maintain 100% market
share in the aftermarket for robot attachment instruments.
SIS thus brought a standard foremarket/aftermarket tying

*
This summary constitutes no part of the opinion of the court. It has been
prepared by court staff for the convenience of the reader.

SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC. 3
claim for which proof of the Kodak/Epic factors was not
required.
The panel rejected Intuitive’s alternative argument that it
was entitled to judgment as a matter of law based on the
insufficiency of the evidence presented at trial. The panel
concluded that Intuitive waived the argument that the
evidence at trial was insufficient to establish that Intuitive
possessed market power prior to SIS’s entry in the market in
2019, and that even if Intuitive had not waived the argument,
the evidence at trial was sufficient for a reasonable jury to
conclude that Intuitive possessed market power prior to
2019. The panel also concluded that the evidence at trial was
sufficient for a reasonable jury to find that Intuitive’s process
for approving third party products and services was illusory.
Accordingly, the panel reversed the judgment below and
remanded for further proceedings.

4 SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC.
COUNSEL
Eric F. Citron (argued) and Kathleen Foley, Zimmer Citron
& Clarke LLP, Washington, D.C.; Edwina B. Clarke and
David J. Zimmer, Zimmer Citron & Clarke LLP, Cambridge,
Massachusetts; Richard T. McCaulley, McCaulley Law
Group, Chicago, Illinois; Joshua V. Van Hoven, Van Hoven
PC, San Ramon, California; for Plaintiff-Counter-
Defendant-Appellant.
Kannon K. Shanmugam (argued), Kenneth A. Gallo, Paul D.
Brachman, James Durling, Anna J. Goodman, Anna J.
Lucardi, and Jake L. Kramer, Paul Weiss Rifkind Wharton
& Garrison LLP, Washington, D.C.; William B. Michael,
Joshua Hill Jr., Daniel A. Crane, and Crystal L. Parker, Paul
Weiss Rifkind Wharton & Garrison LLP, New York, New
York; Sonya D. Winner, Cortlin H. Lannin, and Isaac D.
Chaput, Covington & Burling LLP, San Francisco,
California; Kathryn Cahoy, Covington & Burling LLP, Palo
Alto, California; for Defendant-Counter-Claimant–
Appellee.
Mariel Goetz (argued), Geoffrey M. Green, Joseph Conrad,
Joseph R. Baker, and Alok Narahari, Attorneys; H. Thomas
Byron III, Deputy General Counsel; Lucas Croslow, General
Counsel; Federal Trade Commission, Washington, D.C., for
Amicus Curiae Federal Trade Commission.
Sandeep Vaheesan and Tara Pincock, Open Markets
Institute, Washington, D.C., for Amicus Curiae Open
Markets Institute.
Joshua P. Davis and Matthew I. Summers, Berger Montague
PC, San Francisco, California, for Amici Curiae Antitrust
Law Professors.

SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC. 5
Kathleen W. Bradish, American Antitrust Institute,
Washington, D.C., for Amicus Curiae American Antitrust
Institute.
Jennifer Gross and Michael R. Goodman, Olsson Frank
Weeda Terman Matz PC, Washington, D.C., for Amicus
Curiae Association of Medical Device Reprocessors.
F.M. Haston III, Stanley E. Blackmon, and J. Turner Collins,
Bradley Arant Boult Cummings LLP, Birmingham,
Alabama, for Amicus Curiae American Association of
Gynecologic Laparoscopists.
Michael Qian, Haynes & Boone LLP, Dallas, Texas, for
Amicus Curiae Advanced Medical Technology Association.
Ryan M. Sandrock and Kevin P. Burke, Shook Hardy &
Bacon LLP, San Francisco, California, for Amicus Curiae
Medical Device Manufacturers Association.
Cody S. Harris and Ian Kanig, Keker Van Nest & Peters
LLP, San Francisco, California, for Amicus Curiae Food and
Drug Administration Former Associate Commissioner Peter
Pitts.
Zac Morgan and Cory L. Andrews, Washington Legal
Foundation, Washington, D.C., for Amicus Curiae
Washington Legal Foundation.
Amir C. Tayrani, Gibson Dunn & Crutcher LLP,
Washington, D.C.; Julian Kleinbrodt and Sarah H. Roberts,
Gibson Dunn & Crutcher LLP, San Francisco, California;
Theodore J. Boutrous Jr., Gibson Dunn & Crutcher LLP, Los
Angeles, California; for Amici Curiae International Center
for Law & Economics and Scholars of Law and Economics.

6 SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC.
OPINION

KOH, Circuit Judge:

The primary question presented in this appeal is whether
the district court erred in requiring Plaintiff Surgical
Instrument Service Company, Inc. (“SIS”) to prove certain
factors known as the “Kodak/Epic” factors in order to prove
its antitrust claims. At trial, SIS introduced evidence that
Defendant Intuitive Surgical, Inc. (“Intuitive”) possesses
more than 99% market share in the market for surgical robots
used in minimally invasive soft-tissue (“MIST”) surgery—
the “foremarket”—and 100% market share in the robot
attachment instruments used in such surgeries—the
“aftermarket.” SIS’s theory of liability was that Intuitive
leveraged its market power in the foremarket to harm
competition in the aftermarket. At the conclusion of trial, the
district court ultimately decided to instruct the jury that SIS
needed to prove the Kodak/Epic factors in order to establish
that SIS’s proposed aftermarket is a valid antitrust market.
SIS conceded that the evidence was insufficient to prove the
Kodak/Epic factors and stipulated to judgment in Intuitive’s
favor. SIS now appeals the judgment below on the ground
that the district court’s jury instruction was erroneous. In the
alternative, Intuitive argues that it is entitled to judgment as
a matter of law based on the insufficiency of the evidence
produced at trial. For the reasons explained below, we hold
that the district court’s jury instruction was erroneous and
reject Intuitive’s challenge to the sufficiency of the evidence
produced at trial. Accordingly, we reverse.

SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC. 7
I. BACKGROUND AND PROCEDURAL HISTORY
A. Factual Background
i. The da Vinci Robot
Intuitive manufactures and sells the da Vinci, a surgical
robot used to perform MIST surgery. Before the da Vinci
was introduced to the market in the late 1990s, there were
only two available surgical modalities: open and
laparoscopic. Open surgery is performed through large
incisions in the body that enable surgeons to directly
visualize and expose tissue for manipulation and excision.
The advantage of open surgery is that it allows surgeons to
control surgical instruments using natural, intuitive hand
movements. However, large incisions can cause major
trauma and result in long and expensive recovery times for
patients. The alternative to open surgery, laparoscopic
surgery, is performed by inserting a camera and long, rigid
instruments into the patient through a small incision.
Although laparoscopic procedures “decrease[] patient
trauma and length of stay in the hospital,” surgeons generally
found the “operative technique more difficult to learn and
perform than conventional surgery,” in part because
laparoscopic instruments are “non-intuitive” and offer
“limited degrees of freedom” and “poor sensory feedback.”
In response to the limitations of these existing surgical
modalities, Intuitive created the da Vinci, a robot-assisted
surgical system that combines the minimally invasive nature
of laparoscopic surgery with the intuitive motions of open
surgery. As compared to open or laparoscopic procedures,
patients who undergo surgery using the da Vinci report less
bleeding, less pain, less scarring, shorter hospital stays, and
quicker recovery times.

8 SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC.
To perform an operation using the da Vinci robot, the
surgeon sits at a viewing console, which displays a three-
dimensional, high-definition image of the surgical field
inside the patient’s body. Mounted to the viewing console
are hand controls that control robot arms located on a cart
next to the operating table. The hand controls
instantaneously translate the surgeon’s hand movements to
manipulate surgical instruments attached to the end of robot
arms, which are inserted into the patient’s body through
small incisions. These instruments, known as EndoWrists,
are also developed by Intuitive. EndoWrists mimic the
human wrist but provide a greater degree of precision,
dexterity, and range of motion. There are many types of
EndoWrists, including traditional instruments such as
forceps, scalpels, and scissors.
Intuitive installs in every EndoWrist a use counter that is
pre-set to a specific number of “lives”—typically ten. The
counter decreases the number of remaining lives each time
the EndoWrist is activated, regardless of the length,
intensity, or purpose of the use. Once the counter hits zero,
the EndoWrist stops functioning and is no longer usable.
Intuitive maintains that the use counter was put in place
because of engineering limitations and patient safety
considerations. According to one of Intuitive’s founding
business plan documents, however, the company envisioned
“a business model based on recurring revenue rather than
revenue from sale of capital equipment.” Intuitive thus
sought to derive its revenue not from selling the MIST
surgical robots themselves, but from selling the “high
margin ‘resposable’ instruments which can be resterilized
and reused only for the number of times allowed by the
company.”

SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC. 9
Intuitive introduced the first iteration of the da Vinci to
the market in 1998, at which point it was the only MIST
surgical robot available in the United States. Since then, the
da Vinci has become the primary method of surgery for
many types of procedures, including certain cancer
procedures that cannot be performed laparoscopically.
Surgeons are trained in medical schools on how to use the da
Vinci robot, and hospitals “need[] to be able to offer the
MIST surgical robot” to recruit surgeons.
Although a few minor competitors have entered the
market for MIST surgical robots over the past few decades,
the vast majority of robots installed in the United States are
da Vincis. Intuitive has an installed base of over 5,000 da
Vinci robots, as compared to only a few dozen made by
Intuitive’s competitors. SIS’s expert testified at trial that
Intuitive possesses over a 99% share of the market for MIST
surgical robots in the United States.
ii. Intuitive’s Alleged Anticompetitive Conduct
Against SIS
Plaintiff SIS is a family-run surgical instrument repair
business that provides services to hospitals and surgery
centers. The services offered by SIS include repairing,
refurbishing, sharpening, and cleaning the instruments used
during surgery, such as scissors, graspers, and endoscopes.
In the spring of 2019, SIS learned that another company,
Rebotix, had developed the ability to modify the circuit
board on the EndoWrist and reset the device’s use counter.
These modifications allowed the EndoWrist to be used more
times than had been validated by Intuitive. Intuitive’s
marketing department set the target number of uses (again,
typically ten), and Intuitive performed tests to validate safety
only up to that number. Rebotix, however, performed

10 SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC.
independent testing showing that the EndoWrist performed
safely with additional uses. Specifically, Rebotix tested a
representative sample of EndoWrists through 29 uses and
found that they performed without any “degradation in
performance or condition.” Rebotix also tested a smaller
sample of instruments through over 50 uses and again
observed “no indications of material degradation.”
SIS and Rebotix devised a plan to market Rebotix’s
ability to reset the EndoWrist counter. Under their
arrangement, SIS would use its existing relationships with
hospitals to market the service, Rebotix would reset the
counter, and SIS would otherwise service the instrument (for
example, by inspecting, refurbishing, and cleaning the tool).
SIS sold its repair services for 40% below the price of buying
a new EndoWrist from Intuitive. Beginning in June 2019,
SIS serviced EndoWrists for about six different hospitals for
about six months. The refreshed EndoWrists performed as
expected without evidence of harm to patients.
When Intuitive discovered that hospitals were using
SIS’s services, Intuitive sent letters to the hospitals “strongly
discourag[ing]” them from using SIS’s unauthorized
services and warning that the use of EndoWrists “beyond the
programmed number of uses [constituted] a material breach”
of the hospitals’ agreements with Intuitive. Specifically,
Intuitive’s sales agreement for the da Vinci prohibits
purchasers from using the da Vinci without an EndoWrist
“made or approved by Intuitive.” Similarly, Intuitive’s Use,
License & Service Agreement (“ULSA”) provides that the
sale of EndoWrists is “subject to a limited license,” which
expires once the EndoWrist is “used up to its maximum
number of uses.” The ULSA also prohibits any unapproved
“repair, refurbishment, or reconditioning” of EndoWrists. In
its letters to the hospitals, Intuitive stated that because the

SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC. 11
hospitals had used EndoWrists “refurbished by an
unauthorized third party, Intuitive may no longer accept [the
hospitals’] service calls for” the da Vinci. After receiving
these letters, every one of SIS’s clients ceased using SIS’s
EndoWrist repair services.
B. Procedural History
SIS filed suit against Intuitive in the Northern District of
California on May 10, 2021. In its complaint, SIS alleged
that Intuitive has “a 99%+ market share” in the market for
surgical robots used in MIST surgeries, and that “Intuitive
has leveraged its monopoly power . . . to prevent any repair
services from existing and competing within the EndoWrist
instrument aftermarket.” SIS asserted four antitrust claims
against Intuitive: (1) tying under Section 1 of the Sherman
Act, for using Intuitive’s dominant power in the market for
MIST surgical robots to “coerce its customers into buying
EndoWrists from Intuitive”; (2) exclusive dealing under
Section 1 of the Sherman Act, for requiring “customers to
replace their EndoWrist instruments on an exclusive basis
with new Intuitive EndoWrists”; and (3) monopolization and
(4) attempted monopolization under Section 2 of the
Sherman Act, for willfully obtaining or attempting to obtain
monopoly power in the market for repair and replacement of
MIST surgical robot instruments through the use of illegal
ties and exclusive deals.
1
These claims eventually went to
trial in January 2025.
Prior to trial, the parties submitted competing jury
instructions. At issue in this appeal is “Disputed Instruction
No.7 Re Relevant Product Markets” (“Instruction No. 7”),

1
Intuitive also asserted counterclaims against SIS, which are not relevant
to this appeal.

12 SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC.
offered by Intuitive. Instruction No. 7 largely incorporated
language from the American Bar Association Antitrust
Section’s model jury instructions on defining a relevant
market and explained first that “[f]or each of SIS’s antitrust
claims, SIS must prove by a preponderance of the evidence
that the relevant markets it alleges are valid antitrust
markets.” The instruction then discussed a number of
considerations relevant to the jury’s determination as to
whether SIS had met its burden of demonstrating a relevant
product market. In addition to incorporating this model
language, Intuitive also proposed including the following
language in Instruction No. 7:
To establish a valid single-brand aftermarket,
SIS must prove each of the following four
factors by a preponderance of the evidence:
(1) the challenged aftermarket restrictions
(which, here, are the alleged restrictions that
Intuitive places in its contracts on the use
with the da Vinci system of unauthorized
instruments or instruments that have been
modified by unauthorized third parties) are
not generally known when hospitals make
their “foremarket” purchase of the da Vinci
system;
(2) significant information costs prevent
hospitals from forecasting life-cycle pricing
accurately at the time they purchase their da
Vinci surgical systems;
(3) significant monetary or non-monetary
switching costs exist; and

SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC. 13
(4) general market-definition principles
regarding cross-elasticity of demand, like
those on which I have instructed you, do not
undermine SIS’s proposed single-brand
market.
These four factors, which the parties in this case refer to
as the “Kodak/Epic factors,” are derived from the Ninth
Circuit’s decision in Epic Games, Inc. v. Apple, Inc., 67
F.4th 946 (9th Cir. 2023), which in turn interpreted the U.S.
Supreme Court’s decision in Eastman Kodak Co. v. Image
Technical Services, Inc., 504 U.S. 451 (1992). SIS objected
to Instruction No. 7 in its entirety as unnecessary.
Trial commenced on January 6, 2025, and lasted three
weeks. SIS presented evidence that there were two relevant
markets: one for MIST surgical robots, in which Intuitive
had a 99% market share, and one for EndoWrists, in which
Intuitive had a 100% market share. SIS did not present any
proof of the Kodak/Epic factors. Following the conclusion
of SIS’s case in chief, Intuitive sought judgment as a matter
of law under Federal Rule of Civil Procedure 50(a) based on,
among other reasons, SIS’s failure to present evidence of the
Kodak/Epic factors. The district court denied the motion.
As the end of trial approached, however, the district
court issued several conflicting rulings on whether to include
the Kodak/Epic factors in the final jury instructions. First,
the district court issued tentative jury instructions that
adopted Intuitive’s proposal to include the Kodak/Epic
factors, with some minor modifications. Then, following the
close of evidence, Intuitive renewed its motion for judgment
as a matter of law, including on the ground that SIS had not
presented evidence of the Kodak/Epic factors. The district

14 SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC.
court again denied the motion, but also stated that it would
“leave in Instruction Number 7.”
The same day as that ruling, however, the district court
issued a written order finding that “the proposed jury
instruction requiring SIS to prove the [Kodak/Epic] factors
[is] unnecessary.” The district court also issued an
accompanying “Final Jury Charge” that omitted Instruction
No. 7. After Intuitive filed an objection, the district court
issued another order tentatively sustaining the objection and
indicating its intention to include Instruction No. 7.
The parties presented additional argument on the issue
the following morning, after which the district court ruled
finally that Instruction No. 7 would be given. SIS
acknowledged that it had presented no evidence at trial to
establish the Kodak/Epic factors and therefore stipulated to
judgment in Intuitive’s favor on SIS’s antitrust claims. The
district court entered judgment in favor of Intuitive. This
appeal followed.
II. JURISDICTION AND STANDARDS OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. “We
review a district court’s formulation of civil jury instructions
for an abuse of discretion, but we consider de novo whether
the challenged instruction correctly states the law.”
Wilkerson v. Wheeler, 772 F.3d 834, 838 (9th Cir. 2014).
“We review de novo a district court’s grant of judgment as a
matter of law. In so doing, we ‘view the evidence in the light
most favorable to the nonmoving party . . . and draw all
reasonable inferences in that party’s favor.’” Krechman v.
County of Riverside, 723 F.3d 1104, 1109 (9th Cir. 2013)
(citations omitted).

SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC. 15
III. DISCUSSION
We first address SIS’s challenge to the district court’s
jury instruction requiring SIS to prove the Kodak/Epic
factors. We next address Intuitive’s challenge to the
sufficiency of the evidence.
A. SIS’s Challenge to the District Court’s Jury
Instruction
The primary question presented in this appeal is whether
the district court’s decision to instruct the jury that SIS
needed to prove the Kodak/Epic factors was erroneous. We
hold that it was. We begin by discussing applicable antitrust
law, including the related concepts of market power and
market definition. We then discuss how those principles are
applied in cases involving ties between foremarkets and
aftermarkets. Next, we discuss the Supreme Court’s decision
in Kodak and our case law addressing “Kodak-style”
antitrust claims. Finally, we explain why this case does not
involve a Kodak-style antitrust claim, and thus why the
district court’s jury instruction requiring proof of the
Kodak/Epic factors was erroneous.
i. Applicable Law
The general goal of antitrust law is to protect competition
and to prevent monopoly power. See Standard Oil Co. v.
Fed. Trade Comm’n, 340 U.S. 231, 249 (1951). The
Sherman Act achieves this goal through two principal
prohibitions. Section 1 of the Sherman Act prohibits
concerted action by making unlawful “[e]very contract,
combination . . . , or conspiracy, in restraint of trade or
commerce among the several States.” 15 U.S.C. § 1. Section
2, on the other hand, targets independent action by making it
unlawful to “monopolize, or attempt to monopolize, or

16 SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC.
combine or conspire with any other person or persons, to
monopolize any part of the trade or commerce among the
several States.” Id. § 2.
The parties in this case agree that the Rule of Reason
applies to each of SIS’s antitrust claims. The Rule of Reason
is “a multi-step, burden-shifting framework that ‘requires
courts to conduct a fact-specific assessment’ to determine a
restraint’s ‘actual effect’ on competition.” Epic, 67 F.4th at
974 (quoting Ohio v. Am. Express Co. (“Amex”), 585 U.S.
529, 541 (2018)). Under the Rule of Reason, each of SIS’s
claims presents “the same question: does the challenged
conduct have a substantial anticompetitive effect that harms
consumers in the relevant market?” CoStar Grp., Inc. v.
Com. Real Est. Exch., Inc., 150 F.4th 1056, 1066 (9th Cir.
2025) (citation modified); see also Epic, 67 F.4th at 998-99
(analyzing Section 1 and Section 2 claims together).
To answer whether the challenged conduct has a
substantial anticompetitive effect that harms consumers in
the relevant market, “a ‘threshold step’ is defining the
relevant market in which the alleged restraint occurs.” Epic,
67 F.4th at 974 (quoting Fed. Trade Comm’n v. Qualcomm
Inc., 969 F.3d 974, 992 (9th Cir. 2020)). A relevant market
for antitrust purposes is defined as “‘the area of effective
competition’—i.e., ‘the arena within which significant
substitution in consumption or production occurs.’” Id. at
975 (quoting Amex, 585 U.S. at 543). To determine which
products should be included in a single market, courts look
to whether the products “have a reasonable
interchangeability of use or sufficient cross-elasticity of
demand with each other.” Id. (citation modified). The test for
assessing a proposed market asks whether a hypothetical

SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC. 17
monopolist controlling the proposed market “could
profitably raise prices above a competitive level.” Id.
2

In most antitrust cases, the plaintiff must first define the
relevant market because it enables the plaintiff to
demonstrate circumstantially that the defendant possesses
market power within that market. See Rebel Oil Co., Inc. v.
Atl. Richfield Co., 51 F.3d 1421, 1434 (9th Cir. 1995); see
also Kodak, 504 U.S. at 469 n.15 (noting that because market
power is often inferred from the defendant’s share in the
relevant market, “market definition generally determines the
result of the case”). Market power, in turn, is “the power ‘to
force a purchaser to do something that he would not do in a
competitive market.’” Kodak, 504 U.S. at 464 (quoting
Jefferson Par. Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 14
(1984), abrogated on other grounds by Ill. Tool Works Inc.
v. Indep. Ink, Inc., 547 U.S. 28 (2006)). Showing the
defendant’s possession of market power is a required
element for many antitrust claims, and even when not strictly
required, “is relevant and often critical.” Thurman Indus.,
Inc. v. Pay ’N Pak Stores, Inc., 875 F.2d 1369, 1378 (9th Cir.
1989) (discussing attempted monopolization claims).
In this case, for example, SIS alleged that Intuitive
engaged in illegal tying by using its market power in the
market for MIST surgical robots to require hospitals to
purchase EndoWrists exclusively from Intuitive. In a tying
arrangement, the defendant uses its “market power in one
product market to extend its market power to a distinct

2
This inquiry often involves an empirical assessment of “past consumer-
demand data and/or consumer-survey responses to determine whether a
hypothetical monopolist could profitably impose a Small, Significant,
Non-transitory Increase in Price above a competitive level.” Epic, 67
F.4th at 975 (emphasis omitted).

18 SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC.
product market. To accomplish this objective, the seller
conditions the sale of one product (the tying product) on the
buyer’s purchase of a second product (the tied product).”
Cascade Health Sols. v. PeaceHealth, 515 F.3d 883, 912
(9th Cir. 2008) (citations omitted). “Tying arrangements are
forbidden on the theory that, if the seller has market power
over the tying product, the seller can leverage this market
power through tying arrangements to exclude other sellers of
the tied product.” Id. Accordingly, demonstrating that the
defendant “possesses appreciable economic power in the
tying product market” is an essential element of a tying
claim. Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d
1145, 1159 (9th Cir. 2003) (stating three-factor test for tying
claims).
SIS also asserted a claim for exclusive dealing premised
on a similar theory—that Intuitive contractually required its
da Vinci customers to purchase EndoWrists exclusively
from Intuitive. Exclusive dealing occurs when an
“‘agreement between a vendor and a buyer . . . prevents the
buyer from purchasing a given good from any other vendor,’
and forecloses competition.” Aerotec Int’l, Inc. v. Honeywell
Int’l, Inc., 836 F.3d 1171, 1180 (9th Cir. 2016) (quoting
Allied Orthopedic Appliances Inc. v. Tyco Health Care Grp.
LP, 592 F.3d 991, 996 & n.1 (9th Cir. 2010)). Similar to a
tying claim, an antitrust plaintiff can show that the
challenged agreements foreclose competition by
demonstrating that the “agreements cover a market in which
the defendant” occupies a dominant position. CoStar Grp.,
150 F.4th at 1067.
Lastly, SIS asserted claims for willful and attempted
monopolization under Section 2 based on allegations that
Intuitive engaged in anticompetitive conduct through its
illegal tying arrangement and exclusive deals. The

SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC. 19
defendant’s “possession of monopoly power in the relevant
market” is an element of a willful monopolization claim. See
Epic, 67 F.4th at 998 (quoting United States v. Grinnell
Corp., 384 U.S. 563, 570-71 (1966)). As for attempted
monopolization claims, “[a]lthough proof of a defendant’s
power in the relevant market is not listed as an essential
element . . . , such proof is relevant and often critical.”
Thurman Indus., 875 F.2d at 1378.
ii. Foremarket and Aftermarkets
SIS’s proposed market definitions involved two specific
types of markets: foremarkets and aftermarkets. A
“foremarket” is the primary market for a durable good (e.g.,
a car), whereas an “aftermarket” is a “derivative market
consisting of consumable goods or replacement components
that must be used for the proper functioning of [the] primary
good” (e.g., brake pads). P
HILLIP E. AREEDA & HERBERT
HOVENKAMP, ANTITRUST LAW: AN ANALYSIS OF
ANTITRUST PRINCIPLES AND THEIR APPLICATION ¶ 564B
(2026 Cumulative Supp. 2018-2023); see also Epic, 67 F.4th
at 976 (providing similar definitions).
Claims involving foremarkets and aftermarkets are not
new. For example, in International Business Machines
Corp. v. United States (“IBM”), 298 U.S. 131 (1936), the
U.S. Supreme Court addressed a foremarket/aftermarket tie
similar to the tie at issue here. The defendant in that case,
IBM, produced a type of computing machine, which
operated by using cards to record data for tabulation or
computation. Id. at 133. The foremarket for computing
machines had only two competitors, and IBM was the larger
of the two. Id. at 133, 136. IBM used its market power in the
foremarket to condition the lease of its machines upon the
lessee using cards manufactured only by IBM. Id. at 134-35.

20 SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC.
The Supreme Court found that this tying arrangement was
illegal because it “operated to prevent competition and to
create a monopoly in the production and sale of tabulating
cards suitable for [IBM’s] machines.” Id. at 135-36.
As cases like IBM illustrate, claims involving
foremarket/aftermarket ties are assessed according to the
standard antitrust market definition principles discussed
above, without any need for proving the additional
Kodak/Epic factors. Indeed, citing IBM and other
Supreme Court precedent dating back to 1922, the Supreme
Court in Kodak emphasized that cases involving
foremarket/aftermarket ties do not involve “any exception to
the usual antitrust analysis” and that aftermarkets are treated
the same as “every other separate market.” Kodak, 504 U.S.
at 479 n.29.
iii. Kodak-Style Antitrust Claims
In contrast to a standard foremarket/aftermarket tying
claim, an antitrust plaintiff may instead assert an alternative
theory of antitrust liability first discussed by the Supreme
Court in Kodak. In a “Kodak-style” antitrust claim, the
plaintiff does not attempt to show that the defendant
possesses market power in the foremarket. Instead, the
plaintiff seeks to establish the defendant’s antitrust liability
based on the defendant’s market power in a downstream
aftermarket for the defendant’s own goods—a so-called
“single-brand aftermarket.”
In Kodak, the plaintiffs were a group of companies
known as independent service organizations (“ISOs”) that
repaired Kodak photocopiers. Id. at 455. The ISOs sued
Kodak for illegal tying based on Kodak’s adoption of
policies that made it “more difficult for [ISOs] to compete
with Kodak in servicing Kodak equipment.” Id. However,

SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC. 21
because Kodak faced competition from other companies in
the foremarket for the sale of photocopiers, the ISOs could
not establish the requisite market power needed to maintain
a standard foremarket/aftermarket tying claim. See id.
(discussing Kodak’s “lack of market power in the primary
equipment [fore]market”). Instead, the ISOs claimed that
Kodak illegally tied the sale of Kodak parts—an aftermarket
in which Kodak undisputedly had monopoly power—to the
aftermarket for service of Kodak copiers. Id. at 459. In other
words, rather than allege a foremarket/aftermarket tie like
the one in IBM, the ISOs alleged that Kodak engaged in
illegal tying between two aftermarkets.
Kodak moved for summary judgment, arguing that the
ISOs’ tying claim was not cognizable as a matter of law. Id.
at 466. Kodak did not present any evidence to rebut the
ISOs’ showing of Kodak’s market power in the parts and
services aftermarkets. Id. Instead, Kodak made a simple
legal argument: that the existence of competition in the
foremarket for photocopier equipment categorically
“preclude[d] any finding of monopoly power in derivative
aftermarkets.” Id. Kodak’s reasoning was that, if Kodak
were to raise prices above competitive levels in the
aftermarkets, “potential customers would simply stop
buying Kodak equipment” in the foremarket, id. at 470,
which would lead to “a disastrous drop in equipment sales”
for Kodak, id. at 472. Thus, Kodak contended, “competition
in the equipment [fore]market cannot coexist with market
power in the aftermarkets.” Id. at 471.
The Supreme Court rejected this argument. Rather than
adopt Kodak’s bright-line rule that foremarket competition
would necessarily “discipline” Kodak’s ability to raise
prices in the aftermarkets, id. at 486, the Supreme Court
recognized that Kodak might still be able to exercise its

22 SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC.
aftermarket power for several reasons, including:
(1) consumers might be unable to acquire the information
needed to accurately assess the total cost of maintaining a
Kodak product over the course of its lifecycle;
(2) consumers might lack the ability to engage in such
“lifecycle pricing”; and (3) even if consumers could engage
in lifecycle pricing, consumers might be “locked in” due to
the high cost of switching to another company’s product. See
id. at 473-77.
By permitting the plaintiffs to proceed with their tying
claim, the Kodak decision represented an expansion of
antitrust liability. See id. at 489 (Scalia, J., dissenting)
(arguing that the majority’s opinion “threatens to release a
torrent of litigation”). That is, the Supreme Court
acknowledged that even though Kodak lacked market power
in the foremarket—a fact that the dissenters in Kodak
thought should have been dispositive, see id. at 493 (Scalia,
J., dissenting)—the plaintiffs could still bring an antitrust
claim based on Kodak’s market power in the aftermarket for
Kodak’s own goods by showing the existence of “locked-in
customers,” id. at 476-77 (majority opinion).
Importantly, the Supreme Court’s reasoning in Kodak
was explicitly limited to circumstances in which the
defendant lacked market power in a competitive foremarket.
See id. at 454-55 (“The principal issue here is whether a
defendant’s lack of market power in the primary equipment
[fore]market precludes—as a matter of law—the possibility
of market power in derivative aftermarkets.” (emphasis
added)).
Indeed, the Kodak Court expressly declined to address
the situation presented here. When the plaintiffs belatedly
attempted to argue that Kodak possessed market power in

SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC. 23
the foremarket, the Supreme Court refused to consider the
argument. See id. at 465 n.10 (noting that the plaintiffs had
failed to contest the Court of Appeals’ presumption “that
competition exists in the equipment [fore]market”).
Our Circuit has continued the logic of Kodak in several
subsequent decisions. Like Kodak, each of these cases
involved situations where the plaintiff could not demonstrate
the defendant’s market power in the competitive foremarket
and instead sought to pursue an antitrust claim alleging that
the defendant possessed market power in an aftermarket
downstream from a competitive foremarket.
The leading case in the Ninth Circuit applying Kodak is
Epic. The plaintiff in that case, Epic, was a videogame
developer that brought tying, monopolization, and other
claims against Apple related to Apple’s practices on the App
Store. See Epic, 67 F.4th at 966-69. Because Apple
possessed only “about a 15% market share in the global
smartphone market,” Epic did not attempt to base its tying
claim on Apple’s market power in the equipment
foremarket. Id. at 966-67.
3
Instead, Epic attempted to define
“two single-brand markets: the aftermarkets for iOS app
distribution and iOS in-app payment solutions, derived from
a foremarket for smartphone operating systems.” Id. at 970
(emphasis omitted). Among other claims, Epic alleged that
Apple engaged in unlawful tying between these two
aftermarkets by tying app distribution to the use of Apple’s

3
Intuitive contends that the relevant foremarket in Epic was not the
global smartphone market, but rather the market for mobile operating
systems. That distinction is ultimately immaterial, however, because iOS
is used exclusively on Apple devices, see id. at 980, and thus Apple’s
market share in the mobile operating systems market is necessarily the
same as its market share in the smartphone equipment market.

24 SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC.
in-app payment processor. See id. at 994. In other words, just
like in Kodak, Epic brought a tying claim alleging that, even
though there was a competitive foremarket, Apple used its
market power in one aftermarket for Apple products to harm
competition in another aftermarket for Apple products.
Before addressing Epic’s specific claims, we first
considered Epic’s proposed market definition and
considered whether Epic had met its burden of establishing
a “Kodak-style market.” Id. at 978. Specifically, we noted
that “where a plaintiff asserts a Kodak-style single-brand
aftermarket, it bears the burden of rebutting the economic
presumption that consumers make a knowing choice to
restrict their aftermarket options when they decide in the
initial (competitive) market to enter a contract.” Id. (citation
modified). Drawing on Kodak, we outlined four
requirements a plaintiff must satisfy to rebut this
presumption:
(1) the challenged aftermarket restrictions are
“not generally known” when consumers
make their foremarket purchase;
(2) “significant” information costs prevent
accurate life-cycle pricing; (3) “significant”
monetary or non-monetary switching costs
exist; and (4) general market-definition
principles regarding cross-elasticity of
demand do not undermine the proposed
single-brand market.
Id. at 977. Although worded slightly differently, these are
the same concepts as those discussed in Kodak. We refer to
these requirements as the Kodak/Epic factors. In Epic, we
required proof of the Kodak/Epic factors to prove a single-

SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC. 25
brand market, a threshold issue for all of Epic’s antitrust
claims.
Six months later in Coronavirus Reporter v. Apple, Inc.,
85 F.4th 948 (9th Cir. 2023), we considered essentially the
same market definition issue against the same defendant,
Apple, this time in the context of a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6). Like in Epic, the
plaintiffs in Coronavirus Reporter were a group of app
developers who sued Apple based on Apple’s operation of
the App Store. Id. at 953.
4
The crux of our decision was that
the plaintiffs’ “scattergun” complaint, which alleged “at
least fifteen” different antitrust markets, failed to state a
claim because the plaintiffs had “made no effort at all to
define the markets or to distinguish them from one another.”
Id. at 956. In the course of rejecting the plaintiffs’ various
proposed market definitions, we noted that the plaintiffs
appeared to bring “an allegation of a single-brand market”
like the one in Epic. Id. We summarily rejected that market
definition for the same reasons discussed in Epic. Id. Our
reliance on the Epic decision’s reasoning implicitly
incorporated Epic’s determination that Apple lacked market
power in the competitive foremarket for smartphones. See
id. at 956 & n.3 (discussing consumers’ foremarket
purchasing decisions when “buying an iPhone” and noting
the plaintiffs’ allegations regarding a “broader market for
smartphones”). Because we held that the plaintiffs failed to
“meet the threshold step of defining a relevant market,” we

4
Specifically, the plaintiffs challenged “Apple’s policy requiring that
any apps related to COVID-19 be submitted by a recognized health entity
such as a government organization or medical institution.” Coronavirus
Reporter, 85 F.4th at 953.

26 SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC.
rejected their antitrust claims without further analysis. Id. at
957.
We engaged in the same type of analysis at the motion to
dismiss stage in Newcal Industries, Inc. v. Ikon Office
Solution, 513 F.3d 1038 (9th Cir. 2008), a case decided
before both Epic and Coronavirus Reporter. In our
discussion of Kodak, we began by emphasizing that the
Kodak plaintiffs “did not allege that Kodak held power in the
general [fore]market” and instead “alleged market power
only in a submarket consisting of those customers that had
already purchased Kodak-brand equipment.” Newcal, 513
F.3d at 1048. We then noted that the plaintiff, Newcal, like
the plaintiffs in Kodak, did not allege that the defendant,
IKON, “holds power in the primary market.” Id. at 1050.
Nevertheless, we allowed Newcal to proceed on its claims
because, “[j]ust as the plaintiffs had in Eastman Kodak,
Newcal offers factual allegations to rebut the economic
presumption that IKON consumers make a knowing choice
to restrict their aftermarket options when they decide in the
initial (competitive) market to enter an IKON contract.” Id.
In other words, engaging in an analysis similar to the
Kodak/Epic factors, we held that the plaintiffs sufficiently
alleged that “[c]ompetition in the initial market . . . does not
necessarily suffice to discipline anticompetitive practices in
the aftermarket.” Id.
iv. Application of the Kodak/Epic Factors in This
Case
As Kodak and our decisions interpreting it make clear,
the Kodak/Epic factors apply only in cases where the
plaintiff cannot show that the defendant possesses market
power in the competitive foremarket and instead seeks to
bring an antitrust claim alleging abuse of market power in a

SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC. 27
downstream, single-brand aftermarket. That is because the
Kodak/Epic factors clarify whether the competition and
information available in the foremarket is sufficient to
discipline anticompetitive conduct in the aftermarket. Here,
however, there was no competition in the foremarket.
Rather, SIS alleged, and then presented evidence at trial
demonstrating, that Intuitive leveraged its near-100% market
share in the foremarket for MIST surgical robots to obtain
and maintain 100% market share in the aftermarket for
EndoWrists. Thus, the district court erred when it concluded
that SIS needed to prove the Kodak/Epic factors.
5

In deciding to issue the disputed jury instruction, the
district court misconstrued our case law as requiring proof
of the Kodak/Epic factors anytime an antitrust plaintiff seeks
to define a single-brand aftermarket. But that reasoning is
not supported by either Kodak or our decisions applying it.
The Supreme Court’s decision in Kodak was expressly
limited to situations in which the “defendant[]
lack[s] . . . market power in the primary equipment
[fore]market,” 504 U.S. at 454-55 (emphasis added), and the
Supreme Court declined to consider the situation where, as
here, the defendant possesses market power in the
foremarket, see id. at 465 n.10. Our decisions in Newcal,
Epic, and Coronavirus Reporter merely confirmed Kodak’s
reasoning and applied that reasoning in analogous factual
circumstances. As in Kodak, the defendants in Newcal, Epic,
and Coronavirus Reporter lacked market power in the
competitive foremarket and the plaintiffs alleged that the

5
We reject Intuitive’s contention that SIS forfeited certain arguments
regarding precisely when the Kodak/Epic factors should or should not
apply. SIS preserved its argument that the Kodak/Epic factors do not
apply on the facts of this case and that the district court’s jury instruction
was inappropriate.

28 SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC.
defendants used their market power in a downstream
aftermarket to harm competition in another downstream
aftermarket.
Here, by contrast, SIS’s theory was that Intuitive used its
near-100% market power in the foremarket for MIST
surgical robots to obtain and maintain a 100% market share
in the aftermarket for EndoWrists by forcing MIST surgical
robot consumers to purchase EndoWrists exclusively from
Intuitive. In other words, SIS brought a standard
foremarket/aftermarket tying claim like the claim in IBM. As
the Kodak Court made clear, cases like IBM involving “tying
in derivative aftermarkets” do not require “any exception to
the usual antitrust analysis” and that aftermarkets are treated
the same as “every other separate market.” Id. at 479 n.29.
Even Justice Scalia’s dissent agreed on this point, stating that
“manufacturer ties of foremarket equipment to aftermarket
derivatives” violate the antitrust laws when the manufacturer
has “monopoly power in the equipment” foremarket. Id. at
499 (Scalia, J., dissenting).
6

As a practical matter, moreover, requiring proof of the
Kodak/Epic factors makes little sense where the defendant
possesses market power in the foremarket. This case
provides a good illustration as to why. Consider the first
three Kodak/Epic factors in turn. The first factor requires the
plaintiff to show that “the challenged aftermarket restrictions
are ‘not generally known’ when consumers make their

6
For this reason, we are not persuaded by Intuitive’s repeated assertion
that single-brand aftermarkets are “disfavored” because they “risk
making every company a monopolist in its own brand.” Even the dissent
in Kodak acknowledged that this concern is not present where, as here,
the defendant possesses market power in the foremarket and uses that
market power to require purchases in the aftermarket. 504 U.S. at 498-
99 (Scalia, J., dissenting).

SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC. 29
foremarket purchase.” Epic, 67 F.4th at 977. Whether
aftermarket restrictions are generally known, however, only
matters if the knowledge of such information would impact
consumers’ purchasing decisions in the foremarket, thereby
constraining the defendant’s ability to raise prices in the
aftermarket. Where, as here, there are no meaningful
alternatives in the foremarket, whether or not consumers
possess such i nformation makes no difference.
The second factor likewise requires the plaintiff to show
that “‘significant’ information costs prevent accurate life-
cycle pricing.” Id. Again, consumers’ ability to engage in
lifecycle pricing matters only if there are alternative products
to which consumers can switch in the first place. Here, even
if consumers possessed perfect information about the cost of
maintaining the da Vinci robot over the lifetime of the
product, that information would not allow them to make any
different purchasing decisions in the foremarket given
Intuitive’s 99% market share in the foremarket.
Finally, the third factor requires the plaintiff to show that
“‘significant’ monetary or non-monetary switching costs
exist.” Id. Requiring proof of this factor is logically
incoherent when there are no alternatives to which
consumers can switch.
In sum, the Kodak/Epic factors apply only in situations
where the defendant lacks market power in a competitive
foremarket and the plaintiff instead alleges a “Kodak-style”
antitrust claim based on the defendant’s market power in a
single-brand aftermarket. Stated differently, a plaintiff
seeking to pursue an antitrust claim based on the defendant’s
possession of market power in a single-brand aftermarket
has two options: (1) show that the defendant has market
power in the foremarket, or (2) if the plaintiff cannot show

30 SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC.
that the defendant possesses market power in the foremarket,
satisfy the Kodak/Epic factors.
7
SIS pursued the first option.
Thus, SIS was not required to prove the Kodak/Epic factors
for any of its antitrust claims, and the district court’s jury
instruction was erroneous.
B. Intuitive’s Challenge to the Sufficiency of the
Evidence
Having concluded that the district court’s jury
instruction was erroneous, we now turn to Intuitive’s
alternative argument that the judgment below should be
affirmed based on the insufficiency of the evidence
presented at trial. Intuitive makes two arguments: first, that
SIS failed to demonstrate that Intuitive possessed market
power prior to 2019, and second, that SIS failed to prove that
Intuitive’s process for approving third party products and
services was illusory.
i. Evidence of Intuitive’s Pre-2019 Market
Power
Intuitive first argues that the evidence presented at trial
was insufficient to establish that Intuitive possessed market
power prior to 2019. Intuitive argues that SIS was required
to demonstrate that Intuitive possessed market power “at the
time” its customers made their relevant purchases or entered
into the relevant agreements. Intuitive began selling the da
Vinci in 1998, and SIS did not enter the market until 2019.
Thus, according to Intuitive, SIS was required to show that

7
In reaching this conclusion, we need not, and do not, attempt to define
any precise quantity of “market share” or “market power” needed to
demonstrate a lack of competition in the foremarket. Intuitive’s
possession of over 99% market share in the market for MIST surgical
robots would clearly meet any threshold.

SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC. 31
Intuitive possessed market power during this time period—
1998 to 2019—but failed to do so.
Intuitive’s argument fails for two reasons. First,
Intuitive’s initial and renewed motions for judgment as a
matter of law under Rule 50(a) did not assert that SIS failed
to prove Intuitive’s pre-2019 market power. Accordingly,
Intuitive has waived the argument. See OTR Wheel Eng’g,
Inc. v. W. Worldwide Servs., Inc., 897 F.3d 1008, 1016 (9th
Cir. 2018) (arguments “not raise[d] in [a party’s] pre-verdict
Rule 50(a) motion” are “waived for purposes of appeal”
(citation modified)).
Second, even if Intuitive had not waived the argument,
the evidence presented at trial provided a “legally sufficient
evidentiary basis” for a reasonable jury to conclude that
Intuitive had market power prior to SIS’s entry in the market
in 2019. Fed. R. Civ. P. 50(a)(1). Intuitive’s own expert
confirmed that “[f]rom 1999 through 2018, approximately,
Intuitive was the only firm selling MIST surgical robots in
the United States.” Similarly, Intuitive’s president
confirmed that Intuitive was the only firm selling MIST
surgical robots until at least 2009. The jury also heard
testimony regarding the barriers to entry into the MIST
surgical robot market, including Intuitive’s high research
and development costs from 1995 through 2022. This
evidence was sufficient for a reasonable jury to conclude that
Intuitive had market power prior to 2019.
ii. Evidence that Intuitive’s Third Party
Approval Process Was Illusory
Intuitive next argues that SIS failed to prove that
Intuitive’s process for approving third party products and
services was illusory. The parties dispute which party bears
the burden of proof on this point, but regardless of which

32 SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC.
party bears the burden, the evidence was sufficient to support
a reasonable jury finding that Intuitive had no process for
approving third party services for EndoWrists and that any
prospect of approval was illusory.
In support of its argument, Intuitive relies on evidence
that Intuitive had approved “dozens” of third party services
and products for use with the da Vinci prior to 2020; that
Intuitive approved Rebotix and another third party to sell
modified EndoWrists; that no third party sought Intuitive’s
approval to modify EndoWrists until after SIS ceased its
business efforts; and that neither SIS nor Rebotix responded
to Intuitive’s request that Rebotix provide clinical proof of
the safety and efficacy of its services. In response, SIS points
to testimony from Intuitive’s president indicating that
Intuitive had no established process for approving third party
EndoWrist repair services prior to November 2022. SIS
further contends that none of the “dozens” of third party
products approved prior to 2020 included EndoWrists and
instead included products such as detergents and instrument
trays. Finally, SIS contends that Intuitive’s two approvals of
the third party EndoWrists occurred years after 2019, and
only as part of settlement agreements after those third parties
sued Intuitive for antitrust violations.
8

Viewing the evidence in the light most favorable to SIS
and drawing all inferences in SIS’s favor, the evidence
presented at trial was sufficient for a reasonable jury to find
that Intuitive’s third party approval process was illusory. See
Krechman, 723 F.3d at 1109. “[T]he reasonableness of a
restrictive practice is a paradigm fact question.” Betaseed,
Inc. v. U and I Inc., 681 F.2d 1203, 1228 (9th Cir. 1982); see

8
The district court excluded evidence of these prior lawsuits from the
jury.

SURGICAL INSTRUMENT SERV. CO. V. INTUITIVE SURGICAL, INC. 33
also id. at 1230 (finding that a genuine dispute of fact
precluded the grant of summary judgment in favor of
antitrust defendant on a contractual tying claim). Although
the evidence relied upon by Intuitive could have persuaded
a jury that Intuitive’s third party approval process was not
illusory, the contrary evidence—including that Intuitive did
not approve any third party EndoWrists until years after
2019 and had no established process for doing so—was also
sufficient to support the opposite conclusion. Accordingly,
Intuitive is not entitled to judgment as a matter of law on this
basis.
9

IV. CONCLUSION
For the reasons discussed above, we REVERSE the
judgment below and REMAND for further proceedings
consistent with this opinion.

9
We note that several amicus briefs filed in support of Intuitive focus on
the issue of whether Intuitive’s controls over the EndoWrist attachments
were in the best interests of patient safety and whether the district court
erred in making various pre-trial rulings that limited Intuitive’s ability to
introduce evidence of the FDA approval process. We express no views
on these issues, which have not been raised by either party to this appeal
and are not properly before us.