Handgards, Inc., a Corporation v. Ethicon, Inc., a Corporation

Ethicon appeals from a judgment rendered after a civil jury trial in which it was found guilty of violating Section 2 of the Sherman Act by monopolizing or attempting to monopolize the market for heat-sealed plastic gloves sold to manufacturers of home hair care coloring kits. Plaintiff-appellee Handgards bases its private antitrust action upon its contention that Ethi-con earlier had initiated and pursued a series of patent infringement suits against it in bad faith, or as an integral part of an overall scheme to monopolize. On appeal, Ethicon argues, inter alia, that the district court erred in instructing the jury that Ethicon could be found guilty of an antitrust violation upon proof by a mere preponderance of the evidence that it had prosecuted one or more ill-founded patent infringement actions in bad faith and with an intent to monopolize. This court has jurisdiction pursuant to 28 U.S.C. § 1291 . Because we conclude that the district court erred in so instructing the jury and because of certain deficiencies with respect to the court’s charge regarding damages, we re *988 verse the judgment entered below and remand the case for a new trial.

I.

Factual Background

It is…

concurring:

I concur in the result of Judge Sneed’s opinion, and think it inappropriate to address the question whether or not Ethicon could rely on an immunity granted to antitrust defendants under the principles set forth in Franchise Realty Interstate Corp. v. San Francisco Local Joint Executive Board of Culinary Workers, 542 F.2d 1076 (9th Cir. 1976), cert. denied, 430 U.S. 940 , 97 S.Ct. 1571 , 51 L.Ed.2d 787 (1977). The matter was not raised by Ethicon at any stage of these proceedings. Since a new trial is required in this case, because of the erroneous jury instructions noted by the majority, the district court in the first instance should determine whether Ethicon may raise the question on retrial.

In Franchise Realty we held that an antitrust plaintiff must plead that the litigation or petitions which allegedly caused competi-five injury were sham proceedings, the showing required by a line of Supreme Court decisions, see Eastern Railroad Presidents Conference v. Noerr Motor Freight, 365 U.S. 127 , 81 S.Ct. 523 , 5 L.Ed.2d 464 (1961); United Mine Workers v. Pennington, 381 U.S. 657 , 85 S.Ct. 1585 , 14 L.Ed.2d 626 (1965); California Motor Transport Co. v. Trucking…

601 F.2d 986 62 A.L.R.Fed. 183, 202 U.S.P.Q. 342 , 1979-1 Trade Cases 62,625 HANDGARDS, INC., a corporation, Plaintiff-Appellee, v. ETHICON, INC., a corporation, Defendant-Appellant. No. 76-3150. United States Court of Appeals, Ninth Circuit. May 3, 1979. As Modified on Denial of Rehearing and Rehearing En Banc July 27, 1979. David F. Dobbins (argued), New York City, George S. Frazza, New Brunswick, N.J., Robert M. Dunne, Phelps, Mills, San Francisco, Cal., for defendant-appellant. Maxwell M. Blecher (argued), Blecher, Collins & Hoecker, Joel R. Bennett, Kendrick, Netter, Orr & Bennett, Los Angeles, Cal., Morrison & Foerster, San Francisco, Cal., for plaintiff-appellee. On Appeal from the United States District Court for the Northern District of California. Before SNEED and KENNEDY, Circuit Judges, and VON DER HEYDT, * District Judge. SNEED, Circuit Judge. 1 Ethicon appeals from a judgment rendered after a civil jury trial in which it was found guilty of violating Section 2 of the Sherman Act by monopolizing or attempting to monopolize the market for heat-sealed plastic gloves sold to manufacturers of home hair care coloring kits. Plaintiff-appellee Handgards bases its…