Greyhound Computer Corporation, Inc. v. International Business MacHines Corporation

559 F.2d 488 1977-2 Trade Cases 61,603 GREYHOUND COMPUTER CORPORATION, INC., Plaintiff-Appellant, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant-Appellee. No. 72-2553. United States Court of Appeals, Ninth Circuit. Aug. 17, 1977. Edward L. Foote, Edward J. Wendrow, Stephen B. Diamond, Winston, Strawn, Smith & Patteson, Chicago, Ill., argued, for plaintiff-appellant. Thomas D. Barr, Frederick A. O. Schwarz, Jr., Cravath, Swaine & Moore, New York City, argued, for defendant-appellee. Appeal from the United States District Court for the District of Arizona. Before BROWNING, MOORE, * and WALLACE, Circuit Judges. BROWNING, Circuit Judge: 1 Greyhound Computer Corporation brought this action against International Business Machines Corporation alleging IBM had monopolized or attempted to monopolize various markets in the electronic data processing industry in violation of section 2 of the Sherman Act, 15 U.S.C. § 2 . Greyhound also charged IBM with breaching contracts to provide certain services in conjunction with the sale of computer equipment. After presentation of Greyhound's case the district court granted IBM's motion for a directed verdict. This appeal…

Greyhound Computer Corporation brought this action against International Business Machines Corporation alleging IBM had monopolized or attempted to monopolize various markets- in the electronic data processing industry in violation of section 2 of the Sherman Act, 15 U.S.C. § 2 . Greyhound also charged IBM with breaching contracts to provide certain services in conjunction with the sale of computer equipment. After presentation of Greyhound’s ease the district court granted IBM’s motion for a directed verdict. This appeal followed.

We affirm the directed verdict on the contract issue, but reverse and remand for trial of the monopolization and attempt to monopolize claims.

I. Factual Background and Standard of Review

The computer industry, which is little more than 25 years old, has witnessed the introduction of three (and possibly four) “generations” of equipment, each generation representing a major technological advance. The first computers, introduced in 1952, were built with vacuum tubes. The second generation, introduced in 1958, utilized transistor technology. In 1964 IBM introduced the third generation with the System 360 family of computers, employing integrated…

concurring:

I concur in so much of the majority opinion as affirms the direction of a verdict on the breach of contract count and I also concur in the remand for trial of the monopolization and the attempt to monopolize claims. Since a remand requires a trial, in my opinion any comments on the effect of such evidence as may be developed therein is premature and inadvisable. All that is before us is the evidence adduced by plaintiff in its direct case. Ultimately the case will go to the jury on all the evidence offered by plaintiff and defendant. This evidence will have to be weighed by the jury in the light of a judge’s charge as to the legal background against which it will resolve the facts, including motive, intent and credibility.

As to evidentiary rulings, I would also leave them to the trial judge. He should be allowed to exercise his discretion to admit or exclude as the situation may then exist rather than be told in advance how to rule.

There will be ample opportunity for a reviewing court to examine the jury’s ver *509 diet, the court’s ruling on evidence, the charge and the evidence upon which it is based, when, as and if, the record comes before us. In short, all we…