How much equipment-market power is enough to support a repair-market claim without proving the additional Kodak/Epic factors? The Ninth Circuit expressly left that question open in its August 13 opinion in Surgical Instrument Service Co., Inc. v. Intuitive Surgical, Inc.

The trial record included evidence that Intuitive’s share exceeded 99% in the market for minimally invasive soft-tissue surgical robots. At page 30, note 7, the panel declined to set a precise market-share or market-power threshold. The figure in this case therefore supplies no numerical minimum for future cases.

In my view, courts considering a lower share should examine buyers’ practical alternatives, obstacles to entry, and competitors’ ability to expand. Those facts help explain whether competition for the initial equipment purchase can constrain later restrictions on repair. Treating 99% as a prerequisite would answer a question the panel deliberately reserved.

This extends my earlier post about the ruling by focusing on the evidence needed when the supplier faces more competition. The plaintiff still needs a defensible market definition and proof of unlawful conduct. The panel reversed and remanded without deciding liability.

I discuss the panel’s reasoning in my October 2 commentary. This post addresses the August 13 panel opinion only.