zenith hazeltine argued january decided may upon expiration petitioner zenith license agreement hazeltine research hri permitted zenith use hri domestic radio television patents hri standard package license zenith refused renew asserting longer required license hri brought patent infringement suit november zenith answer alleged invalidity patent noninfringement patent misuse hri hri unclean hands conspiracy foreign patent pools may zenith counterclaimed hri treble damages injunctive relief alleging sherman act violations misuse hri patents including one suit well conspiracy among hri parent hazeltine hazeltine patent pools canada england australia zenith contended patent pools refused license foreign patents including hazeltine placed within exclusive licensing authority zenith others seeking export radios television sets foreign markets hri zenith stipulated trial hri hazeltine considered one entity purposes litigation hazeltine served counterclaim named party made appearance zenith proposed judgment entered time hazeltine filed special appearance district sitting without jury ruled zenith infringement action counterclaim held hri misused domestic patents attempting coerce zenith acceptance package license insisting extracting royalties unpatented products hri hazeltine conspired foreign patent pools exclude zenith canadian english australian markets respect patent misuse judgment entered zenith treble actual damages approximately injunctive relief given misuse treble damages almost awarded zenith conspiracy claim together injunctive relief participation arrangement prevent zenith exporting electronic equipment foreign market relying one entity stipulation entered judgments treble damages injunctive relief hazeltine well hri appeals set aside judgments hazeltine ruling lower lacked jurisdiction company stipulation insufficient basis entering judgment hazeltine patent misuse claim award hri affirmed injunction misuse modified conspiracy award reversed appeals holding zenith failed prove fact injured relevant period preceding filing counterclaim also struck injunction hri participation conspiracies restricting zenith foreign trade held one bound judgment personam resulting litigation designated party made party service process pp judgments hazeltine properly vacated hazeltine named party served formally appear trial stipulation executed hri adequate substitute normal means obtaining jurisdiction hazeltine error enter injunction hazeltine without determining active concert participation hri proceeding hazeltine party appeals erred setting aside district decision respect fact damage canada pp evidence sufficient sustain finding canadian patent pool refused license imported goods thus excluding foreign manufacturers like zenith canadian market radio television products evidence clearly warrants inference canadian patent pool past conduct interfered made difficult distribution zenith products relevant period rationally found zenith suffered damage pertinent period smaller share market pool never existed pp evidence sufficient support finding damage resulting events occurring damage period began pp applying clearly erroneous standard fed rule civ proc findings district sitting without jury appellate must determine whether entire evidence left definite firm conviction mistake committed whether made findings trial plaintiff seeks recovery injuries total partial market exclusion may conclude matter reasonable inference proof defendants wrongful acts tendency injure plaintiffs business evidence decline prices profits values shown attributable causes defendants wrongful acts caused damage plaintiffs bigelow rko radio pictures pp trial entitled infer circumstantial evidence necessary causal relation canadian patent pool conduct claimed damage existed pp appeals properly set aside district judgment respect injury zenith english patent pool permissible inference record zenith enter english television market awaiting change english signal activities patent pool pp appeals correctly reversed lower damages award respect australian market nothing record permits inference zenith either intended prepared enter australian market relevant period pp injunctive relief clayton act available even though plaintiff suffered actual injury long demonstrates significant threat injury impending antitrust violation contemporary violation likely continue recur pp injunctive relief hri respect canadian market wholly proper trial found hri canadian patent pool conspiring exclude zenith others canadian market nothing indicate clear violation antitrust laws terminated threat zenith cease foreseeable future pp injunction barred hri conspiring others restrict prevent zenith entering foreign markets also reinstated light hri antitrust violation conspiring canadian pool participation similar pools england australia zenith interest expanding foreign markets pp conditioning grant patent license upon payment royalties products use teaching patent amounts patent misuse pp convenience parties rather patent power dictates royalty provision misuse patents automatic radio mfg hazeltine research pp licensee obtains privilege using patent insurance infringement suits must anticipate minimum charge license enough insure patentee loss negotiating administering monopoly even fact patent used patentee statutory monopoly used coerce agreement pay percentage royalty goods using patent pp matter remanded appeals consider whether trial correctly determined hri conditioned grant licenses upon payment royalties unpatented products whether misuse embodies ingredients violation either sherman act whether zenith threatened violation entitle injunction clayton act pp thomas mcconnell argued cause petitioner briefs philip curtis francis mcconnell john chadwell victor kayser argued cause respondents briefs respondent hazeltine research lee cook joseph giffin hudson rathburn laurence dodds chadwell kayser brief hazeltine cook giffin solicitor general griswold assistant attorney general zimmerman harris weinstein filed brief amicus curiae justice white delivered opinion petitioner zenith radio corporation zenith delaware corporation many years successfully engaged business manufacturing radio television sets sale foreign countries necessary incident zenith operations acquisition licenses use patented devices radios televisions manufactures transactions included licensing agreements respondent hazeltine research hri illinois corporation owns licenses domestic patents principally radio television fields hri wholly owned subsidiary respondent hazeltine corporation hazeltine substantially larger diversified company among assets numerous foreign patents including foreign counterparts hri domestic patents licenses use foreign countries zenith obtained right use hri domestic patents hri standard package license year however expiration zenith license imminent zenith declined accept hri offer renew asserting longer required license hri negotiations proceeded stalemate november hri brought suit northern district illinois claiming zenith television sets infringed hri patents particular automatic control system zenith answer alleged invalidity patent asserted noninfringement alleged hri claim unenforceable patent misuse well unclean hands conspiracy foreign patent pools may three years answer filed zenith filed counterclaim hri treble damages injunctive relief alleging violations sherman act misuse hri patents including one suit well conspiracy among hri hazeltine patent pools canada england australia zenith contended three patent pools refused license patents placed within exclusive licensing authority including hazeltine patents zenith others seeking export radios televisions foreign markets district sitting without jury ruled zenith infringement action supp judgment respect affirmed appeals issue counterclaim district ruled first hri misused domestic patents attempting coerce zenith acceptance package license insisting extracting royalties unpatented products judgment entered zenith favor treble amount actual damages approximately injunctive relief patent misuse awarded second hri hazeltine found conspired foreign patent pools exclude zenith canadian english australian markets hazeltine granted pools exclusive right license hazeltine patents respective countries shared pools profits knowing pool refused license patents importation enforced ban imports threats infringement suits hri along coconspirator hazeltine therefore held conspired pools restrain trade commerce violation sherman act stat amended liable injury caused zenith foreign business operation pools total damages respect three markets trebled amounted nearly judgment amount awarded zenith along injunctive relief participation arrangement prevent zenith exporting electronic equipment foreign market relying upon finding hri zenith stipulated trial hri hazeltine considered one entity purposes litigation see entered judgments treble damages injunctive relief respect patent misuse conspiracy hazeltine well named hri appeal hri hazeltine appeals set aside entirely judgments damages injunctive relief entered hazeltine ruling district lacked jurisdiction company stipulation relied upon district insufficient basis entering judgment hazeltine respect zenith patent misuse claim appeals affirmed award hri modified certain respects district injunction misuse appeals also reversed award conspiracy restrain zenith export trade without reaching issues presented appeal phase case held zenith failed sustain burden clayton act stat prove fact damage injury business within relevant period preceding may date zenith counterclaim filed finally appeals struck injunction hri participation conspiracies restricting zenith trade foreign markets granted certiorari consider among things question whether appeals properly discharged appellate function rule federal rules civil procedure specifies findings fact made district sitting without jury set aside unless clearly erroneous judgments hazeltine may two weeks stipulation signed zenith filed counterclaim seeking money damages hri injunction hri privity hazeltine served counterclaim named party although alleged coconspirator hri foreign patent pools hazeltine made appearance litigation zenith proposed judgment entered time hazeltine filed special appearance insofar record reveals hazeltine formally participate proceedings district entered initial findings fact conclusions law april hazeltine special appearance trial judge entered judgment hazeltine well hri thereby rejecting hazeltine objection without jurisdiction apparently trial based decision pretrial stipulation earlier finding parties stipulated purposes litigation hazeltine research parent hazeltine corporation considered one entity operating patent holding licensing company engaged exploitation patent rights electronics industry foreign countries hazeltine named party never served formally appear trial stipulation adequate substitute normal methods obtaining jurisdiction person corporation stipulation represented hri agreement bound liable acts parent signed hri attorney dodds hazeltine execute stipulation dodds although officer hazeltine purport signing behalf trial apparently viewed stipulation binding hazeltine equivalent entry appearance consent entry judgment stipulation face however hardly warrants construction circumstances justified trial conclusion findings reveal perhaps zenith proved trial might found hri hazeltine alter egos absent jurisdiction hazeltine determination bind hri alter ego issue litigated trial decided hri hazeltine one entity jurisdiction hri gave jurisdiction hazeltine perhaps hazeltine appearance judgment full opportunity contest jurisdiction warrant entry judgment occurred trial judgment hazeltine based wholly hri stipulation hri may executed stipulation avoid litigating alter ego issue fact foreclose hazeltine never day question whether subsidiary considered entity purposes litigation likewise shown hazeltine officer dodds fact controlled litigation behalf hri claim made judgment hri res judicata hazeltine control claim finally adjudicated hazeltine jurisdiction company see merriam saalfield schnell peter eckrich sons neither judgment damages injunction hazeltine proper although injunctions issued federal courts bind parties defendant suit also persons active concert participation receive actual notice order personal service otherwise fed rule civ proc nonparty notice held contempt shown concert participation error enter injunction hazeltine without made determination proceeding hazeltine party ii foreign patent pools award concluded appeals erred setting aside district decision respect fact damage canada zenith evidence although means conclusive sufficient sustain inference zenith fact injured extent canadian pool restraints upon imports radio television sets hand agree appeals district erred english australian markets canadian pool findings district respect operations canadian pool may briefly summarized canadian patent pool canadian radio patents crpl formed general electric company subsidiary canadian general electric company westinghouse canadian subsidiary pool made largely canadian manufacturers subsidiaries american companies pool many years exclusive right patents member companies also hazeltine number foreign concerns patents available pool licensing package licenses granted covering patents pool strictly limited manufacture canada license importers available chief purpose pool protect manufacturing members licensees competition american foreign companies seeking export products canada crpl efforts prevent importation radio television sets highly organized effective agents investigators manufacturer distributor trade associations systematically policed market warning notices advertisements advised distributors dealers even consumers selling using unlicensed equipment infringement suits threats thereof regularly effectively employed dissuade dealers handling sets many years zenith attempted establish distribution canada distributors warned pool zenith efforts secure license goods unsuccessful zenith brought antitrust suit rca general electric western electric litigation favorably settled zenith receiving among things worldwide licenses patents owned named defendants armed licenses zenith began exporting radio television products canada promptly informed crpl continue business canada zenith required sign crpl standard license permit importation sell canada must manufacture zenith notified time infringing least one hazeltine patents placed crpl licensing canada soon demand crpl hri began infringement suit zenith trial findings describing operations canadian pool drastic impact upon zenith foreign commerce date events state whether occurred may damage award confined injuries sustained statutory period trial apparently deemed immaterial whether acts occurred start damage period damages awarded assumption zenith absent conspiracy canadian television market may throughout damage period rather actual share since failure market first day damage period ascribed pool operations operations must occurred prior may part damages awarded therefore necessarily resulted period conduct appeals reversed district considered evidence insufficient prove fact damage zenith may put aside hri statute limitations defense belatedly raised district pressed appeals import decision zenith damaged may act pool whether occurring date appeals overriding judgment rationale meet claims damage period injury period conduct zenith done business canada may patent pool never operated country appeals clearly error evidence quite sufficient sustain finding competing business concerns patentees joined together pool canadian patents granting package licenses refusing license imported goods clear purpose exclude concerns like zenith canadian market unless willing manufacture zenith consequently never able obtain license fact pool vigorous campaign discourage importers distributors dealers consumers selling handling using unlicensed foreign merchandise effectively prevented zenith making headway canadian market settlement rca codefendants even zenith undertook earnest establish distribution system canada market merchandise zenith met pool advertisements threatening action imported goods notifications continuing past may products infringing pool patents license available unless zenith manufactured canada evidence clearly warrants inference crpl past conduct interfered made difficult distribution zenith products later years district reasonably conclude cumulative effects pool campaign imported goods consequences lasting well damage period also rationally found evidence zenith beginning reached maximum potential may pool effectively prevented earlier beginning zenith therefore suffered damage damage period smaller share market pool never existed also conclude record evidence sufficient support finding damage resulting events occurring beginning damage period need merely assume canadian pool continued throughout period suit entitled absence clear evidence termination see local oregon state medical society hri frankly conceded continuation pool district appears sufficiently clear throughout time zenith deprived always refused license pool patents permitting sell merchandise canada may pool manager conferred zenith vice president informing zenith infringing pool patents require license licenses granted local manufacture followed june letter stating without reservation zenith receivers infringing enclosing pool standard license form nothing less demand damage period zenith either manufacture canada take standard package license cease activities country evidence pool ever retreated position next four years zenith thus continued operate without patent license unburdened conspiratorial conduct granted terms satisfy antitrust laws deprivation necessarily impact zenith constituted injury business find singularly unpersuasive argument zenith well without license one little assertion pool licenses crpl participants enjoyed substantial income without value without license business canada obviously involved weighty risks zenith besides requiring convince trade legally effectively business without clearance crpl course zenith determined take risks serious although hri brought instant litigation claiming infringement hri domestic patent foreign counterpart made available canadian pool hazeltine zenith persevered canadian efforts claim pressed appeals held pool bothered neither zenith distributors zenith ran gantlet successfully license made difference whatsoever true record discloses specific instance subsequent infringement suits threats zenith existing potential distributors dealers evidence pool dormant may record contains letter pool distributor motorola products containing clear warnings handling unlicensed imported merchandise significant fair import testimony zenith officers pool remained active damage period prevented zenith establishing effective distribution system throughout canada zenith able obtain independent distributors western provinces unable central maritime provinces necessarily relied subsidiaries distribution officers experienced businessmen also testified similarities canadian american markets attributing zenith much poorer canadian performance discouraging repressive effects pool appeals refuse credit testimony hri insists accepting evidence damage considered insufficient weight prove injury zenith business respect appeals gave insufficient deference findings trial judge failed adhere teachings bigelow rko radio pictures cases dealing standard proof actions applying clearly erroneous standard findings district sitting without jury appellate courts must constantly mind function decide factual issues de novo authority appellate reviewing findings judge well jury circumscribed deference must give decisions trier fact usually superior position appraise weigh evidence question appellate rule whether made findings trial whether entire evidence left definite firm conviction mistake committed gypsum see also national assn real estate boards commissioner duberstein trial appellate courts alike must also observe practical limits burden proof may demanded plaintiff seeks recovery injuries partial total exclusion market damage issues cases rarely susceptible kind concrete detailed proof injury available contexts repeatedly held absence precise proof factfinder may conclude matter reasonable inference proof defendants wrongful acts tendency injure plaintiffs business evidence decline prices profits values shown attributable causes defendants wrongful acts caused damage plaintiffs bigelow rko pictures supra see also eastman kodak southern photo materials story parchment paterson parchment paper bigelow plaintiff claimed injury conspiracy among film distributors deny pictures offered evidence comparing profits competing theater granted showings also measuring current profits earned films available reversing appeals found evidence sufficient sustain award damages although factfinder entitled base judgment speculation guesswork jury may make reasonable estimate damage based relevant data render verdict accordingly circumstances juries allowed act upon probable inferential well direct positive proof story parchment paterson supra eastman kodak southern photo supra rule enable wrongdoer profit wrongdoing expense victim inducement make wrongdoing effective complete every case preclude recovery rendering measure damages uncertain failure apply mean grievous wrong done less likelihood recovery english pool hazeltine patents made available english pool pool issued package licenses restricted local manufacture although pool radio patents expired prior beginning damage period trial found assume pool held television patents licensed television sets made zenith interested english market made exclusive arrangements one distributor desiring handle merchandise time damage period however zenith make available offer sale substantial number television sets suitable english market make serious efforts enter market attained appreciable position english television market initially found patent pool responsible years zenith failure participate english market trial proceedings held government embargo patent pool sole reason zenith entering english market prior beginning damage period district found pool called upon exercise type conduct exercised canada however retreat conclusion restraints imposed pool foreclosed zenith damage period respect agree appeals trial clearly erred based examination record convinced even ending embargo zenith faced obstacles effectively discouraged entry english market pool responsible positing zenith get license english pool enter british market damage period issue whether embargo lifted zenith wanted intended enter capacity prevented entering inability secure patent license operations english patent pool section clayton act required zenith show injury business property reason anything forbidden antitrust laws zenith failure enter english market attributable lack desire limited production capabilities factors independent hri unlawful conduct zenith met burden zenith interested english market much clear standard domestic television set manufactured operate scanning signals whereas signal standard england damage period similarly fm transmission utilized audio portion signals used england zenith regular product thus salable english market succeed zenith either produce differently equipped set provide mass conversion standard receivers unquestionably company facilities ability follow either course equally clear pursued neither change standard british broadcast include signal consideration even imminent damage period zenith merchandise event sold prices substantially higher prevailing english market tariffs freight costs tended widen differential producing new set english market modifying existent models basis involved substantial costs based evidence us including correspondence zenith british representative think appeals correctly rejected inference zenith intended prepared enter english television market damage period correctly concluded zenith fact waiting change english standards system clearly emerges evidence zenith every intention promote sale television sets signal change occurred given event neither absence pool license pool threats customers deterred zenith major effort penetrate british market existence pool far record shows quiescent damage period credited power discourage zenith entry signal change difficult grasp question hand whether zenith decided enter market pool deterrent inflicted damage rather whether zenith fact constrained pool stay england damage period whether zenith business calculus led await favorable conditions said latter permissible inference record australian pool australian patent pool exclusive rights license hazeltine patents also granted licenses local manufacture hri hazeltine conspiracy australian pool effectively kept zenith market compensable violation antitrust laws unquestionably occurred findings district wholly silent australian pool impact zenith business officer zenith revealed zenith exported products australia since early zenith requested pool license period preceding trial government embargo found district foreclosed zenith merchandise well damage period high tariffs shipping costs additional barriers well prospect vigorous competition nothing record us permit inference zenith either intended prepared enter australian market damage period appeals correct reversing district award damages respect australian market injunction follows conclusion respect foreign patent pools injunctive relief threatened loss damage directed pools alleged zenith unlawful conspiracies justified paragraph injunction granted must stricken moreover purpose giving private parties injunctive remedies merely provide private relief serve well high purpose enforcing antitrust laws borden section construed applied purpose mind knowledge remedy affords like equitable remedies flexible capable nice adjustment reconciliation public interest private needs well competing private claims hecht bowles availability conditioned necessities public interest congress sought protect judged proper standard record us warranted injunction respect canada findings district hri crpl conspiring exclude zenith others canadian market nothing indicating clear violation antitrust laws terminated threat zenith inherent conduct cease foreseeable future neither relative quiescence pool litigation claims objectionable conduct cease judgment negated threat zenith foreign trade threat clear argument injunctive relief hri respect canadian market wholly proper also reinstate injunction entered district insofar broadly barred hri conspiring others restrict prevent zenith entering foreign market exercising equitable jurisdiction federal broad power restrain acts type class unlawful acts found committed whose commission future unless enjoined may fairly anticipated defendant conduct past nlrb express publishing see also national lead given findings hri conspiring canadian pool purpose exclude zenith canada violation sherman act clearly established propensity arrangements sort also indicated findings revealing participation similar pools operating england australia zenith company interested expanding foreign commerce suffered hands hri coconspirators canadian market entitled injunctive relief like conduct hri world markets see reason federal courts exercising traditional equitable powers extended respond salutary principle one found committed acts violation law may restrained committing related unlawful acts nlrb express publishing supra although district may enjoin future illegal conduct defendant even future violations antitrust laws however unrelated violation found new york icc hen purpose restrain trade appears clear violation law necessary untraveled roads end left open worn one closed international salt particularly true cases brought private ends also serve public interest effectively pry open competition market closed defendants illegal restraints iii issue conditioning directly indirectly grant license zenith radio corporation subsidiaries domestic patent upon taking license patent upon paying royalties manufacture use sale apparatus covered patent emphasis added striking last clause paragraph appeals effect made two determinations first view automatic radio mfg hazeltine research conditioning grant patent license upon payment royalties unpatented products misuse patent second since conduct constitute patent misuse neither violative antitrust laws within meaning clayton act zenith sought district granted injunction respect first determination reverse appeals hold conditioning grant patent license upon payment royalties products use teaching patent amount patent misuse trial injunction purport prevent parties serving mutual convenience basing royalties sale radios television sets irrespective use hri inventions injunction reaches situations patentee directly indirectly conditions license upon payment royalties unpatented products patentee refuses license basis leaves licensee choice license providing license also injunction takes effect license conditioned upon payment royalties merchandise covered patent express provisions license necessary effect employ patent monopoly collect royalties use licensed invention using making selling article within reach patent patentee exclusive right manufacture use sell invention see bement national harrow heart legal monopoly right invoke state power prevent others utilizing discovery without consent see continental paper bag eastern paper bag crown die tool nye tool machine works law also recognizes may assign another patent whole part may license others practice invention see waterman mackenzie established limits patentee must exceed employing leverage patent control limit operations licensee among restrictions upon may condition right use patent licensee agreement purchase use sell purchase use sell another article commerce within scope patent monopoly ethyl gasoline international salt right set price license extend far whatever privilege exact royalties high negotiate brulotte thys patent leverage may used extract licensee commitment purchase use sell products according desires patentee neither leverage used garner royalties percentage share licensee receipts sales products either case patentee seeks extend monopoly patent derive benefit attributable use patent teachings brulotte thys supra patentee licensed use patented machine license providing payment royalty using invention well expiration date patent recognizing patentee lawfully charge royalty practicing patented invention prior expiration date payment royalty postponed beyond time noted royalties prior use current use nothing less effort patentee extend term monopoly beyond granted law brulotte thus articulated particularized context principle patentee may use power patent levy charge making using selling products within reach monopoly granted government automatic radio contrary authority proposition patentees carte blanche authority condition grant patent licenses upon payment royalties unpatented articles case automatic radio acquired privilege using present future hri patents promising pay percentage royalty based selling price radio receivers minimum royalty per year hri sued minimum royalty sums automatic radio asserted patent misuse agreement extracted royalties whether patents way used automatic radio receivers district appeals approved agreement convenient method designed parties avoid determining whether radio receiver embodied hri patent percentage royalty deemed acceptable alternative payment privilege use patents affirmed finding cases international salt inapposite distinguishing gypsum involving conspiracy patentee licensees eliminate competition considered reasonable payment royalties according agreed percentage licensee sales since ound business judgment indicate payment represents convenient method fixing business value privileges granted licensing agreement found nothing inherent royalty provision extend patent monopoly finally holding stated licensing use patents per se misuse patents measure consideration percentage licensee sales ibid nothing foregoing inconsistent district injunction conditioning license upon payment royalties unpatented products principle patent leverage may employed collect royalties producing merchandise employing patented invention opinion automatic radio deal license negotiations spawned royalty formula issue indicate hri used patent leverage coerce promise pay royalties radios practicing learning patent inference follows mere license provision measuring royalties licensee total sales even things work none merchandise employs patented idea process even foreseeable undetermined portion contain invention easily indicated automatic radio licensee well patentee find convenient efficient several base royalties total sales face burden figuring royalties based actual use convenience parties rather patent power dictates royalty provision misuse patents forbidden conditions attached license also said automatic radio licensee bargains privilege using patent products agrees lump sum royalty escape payment basis demonstrating longer using invention disclosed patent neither disagree think transactions barred trial injunction licensee negotiates privilege use patents developments desire use complain must pay royalties chooses use none charge patentee refused license except basis royalty read automatic radio authorize patentee use power patent insist royalty override protestations licensee products unsuited patent lines merchandise need desire purchase privileges patent event royalties collected unpatented merchandise obligation pay nonuse clearly source leverage patent also think patent misuse inheres patentee insistence royalty regardless use rejection licensee proposals pay actual use unquestionably licensee must pay uses patent equally however may insist upon paying use basis total sales including products may use competing patent patented ideas used nothing right granted patentee keep others using selling manufacturing invention empowers insist payment use also producing products employ discoveries course licensee expect obtain license giving privilege use insurance infringement suits without least footing patentee expenses dealing insist upon paying use alone perhaps things turn pay absolutely nothing finds produce without using patent risks infringement real avoid must anticipate minimum charge license enough insure patentee loss negotiating administering monopoly even fact patent used discern basis statutory monopoly granted patentee using monopoly coerce agreement pay percentage royalty merchandise employing discovery claims patent define although concluded automatic radio foreclose injunction entered district follow injunction otherwise proper whether trial correctly determined hri conditioning grant patent licenses upon payment royalties unpatented products yet determined appeals patent misuse necessarily follow misuse embodies ingredients violation either sherman act zenith threatened violation entitle injunction clayton act see morton salt suppiger machine stokes smith laitram king crab supp alaska see also report attorney general national committee study antitrust laws nordhaus jurow law frost patent misuse per se antitrust violation conference antitrust laws attorney general committee report rahl zaidins cf staff antitrust subcommittee house committee judiciary antitrust problems exploitation patents comm print schueller new antitrust illegality per se forestalling patent misuse rev whether findings evidence sufficient make actual threatened violation antitrust laws justify injunction issued district considered appeals leave matter dealt first instance accordingly judgment appeals affirmed part reversed part case remanded proceedings consistent opinion ordered footnotes canada television radio england television radio australia television radio total england television radio australia television radio total record discloses zenith hri courts considered damage period four years prior date zenith filed counterclaim argument made counterclaim whole part related back earlier pleading thereby expanding damage period include years prior cf bull cold metal process bliss cir cert denied cf fed rule civ proc amended pleading relates back date original pleading claim defense asserted amended pleading arose conduct transaction occurrence set forth attempted set forth original pleading proceedings district april trial judge noted well course hazeltine corporation party lawsuit reliance upon stipulation basis decision enter judgment hazeltine well hri reflected interchanges counsel hazeltine proceedings example following kayser counsel hazeltine anyone really believe minute thought bringing parent lawsuit named relying stipulation intended simplify expedite trial lawyer practicing two years expect hold somebody liable judgment even name relied pretrial stipulation mean pretrial stipulations worthless indication genesis stipulation pretrial conference question raised whether subpoena served upon hri reach certain records hazeltine relating latter foreign patents hazeltine course argues stipulation purpose effect facilitate discovery trial obviating necessity litigating whether zenith pierce corporate veil hri parent brief zenith seems argue hazeltine estopped deny bound stipulation hri counsel dodds officer hazeltine also ruestow westermann hazeltine general patent counsel general counsel present trial failed repudiate construction allegedly given stipulation parties trial effect bound hazeltine adjudication counterclaim find theory untenable record case references trial stipulation equally consistent interpretation advanced hazeltine stipulation merely eliminated necessity zenith perform task piercing corporate veil proving counterclaim hri also ruestow westermann called witnesses trial assuming present throughout trial fact neither proved disproved record failure repudiate zenith proposed construction stipulation entirely consistent proposition present witnesses authorized representatives person might bound litigation alter ego issue litigated hazeltine made special appearance opportunity heard see supra district evidently rely upon anything stipulation basis entering injunction hazeltine well hri record support contention implicit zenith brief hazeltine appeared contest jurisdiction found district active concert participation hri entering special appearance hazeltine consented bound finding see generally dobbs validation void judgments bootstrap principle pts rev although hri hazeltine parties prior litigation enter settlement agreement hri urged joint tortfeasors including hri hazeltine released liability injuries flowing acts pools release appears relevant zenith claim injury canadian trade embargoes england australia thought district preclude injury acts english australian pools embargoes lifted well settlement executed appeals disturb findings district hri hazeltine conspired canadian pool deny patent licenses companies seeking export goods canada accepting findings doubt sherman act violated see timken roller bearing continental ore union carbide carbon zenith demonstrated exports restrained pool activities liability domestic company participating conspiracy beyond question continental ore union carbide carbon supra cf american banana fruit aluminum america cir although patent rights involved conclusions follow see example line material singer mfg zenith burden proving fact damage clayton act satisfied proof damage flowing unlawful conspiracy inquiry beyond minimum point goes amount fact damage enough illegality shown material cause injury plaintiff need exhaust possible alternative sources injury fulfilling burden proving compensable injury continental ore union carbide carbon supra perma life mufflers international parts concurring opinion zenith antitrust claim asserted counterclaim patent infringement suit brought rca zenith subsidiary rauland corporation computation damages prepared zenith experts accepted district see reflects comparison zenith percentage share television market ranging zenith actual share canadian market period ranging although discuss measure damages utilized computing zenith injury canadian television market comparable method employed determine zenith lost radio sales november proceedings held consider damages england australia zenith executive treasurer kaplan testified canada assumption commenced period starting june full blown organization enjoyed benefits business years prior date hri answer zenith counterclaim plead statute limitations defense however course proceedings entry district initial findings fact conclusions law judgment trial granted oral motion hri new counsel leave file defenses based statute limitations release given zenith pursuant settlement agreement thrust former primarily findings canada erroneously included damages resulting conduct occurring prior may trial without mention defenses forthwith refused set aside amend damage award canada thus either rejecting statute limitations defense considering waived fed rule civ proc urged zenith district appeals zenith requested damages period prior filing counterclaim findings district expressly limited damages awarded occurring statutory damage period appeals although purporting pass statute limitations defense referred four year damage period identified years prior may filing date zenith counterclaim parties argued matter make effort penetrate confusion surrounding issue deal question whether damage period injury period conduct recoverable unwaived statute limitations defense properly asserted april proceedings held district judgment counsel hri stated counsel zenith really trying sell idea show pools continued defines pools yes yes question arrangements relation patents characterized necessarily characterizes arrangements continued far know existence today question zenith failed make formal request crpl license damage period properly attributed zenith recognition request futile pool made position entirely clear circumstances absence formal request fatal zenith case see continental ore union carbide carbon hanover shoe shoe machinery report royal commission patents copyright industrial designs published report described magnitude risk taken zenith distributors selling imported products canada portfolio respect crpl right grant licenses consisted patents absence license crpl doubtful anyone sell canada radio television receiver crpl indicated grant license importer radio television receivers particularly respect policy crpl precluding importers bringing canada radio television receivers complaint made commission stated policy crpl enforce patent rights person sells canada imported radio television receiver infringes one patents portfolio letter brought zenith attention dealer warned motorola dealer importation television sets fm radios probably infringed pool patents dealer cautioned crpl remained willing litigate infringements describing two recent successful suits also reminded crpl policy licensing imports closing wish inform happy issue license make made canada equipment coming within ambit patents hri urges trial testimony canada two zenith officers wright kaplan inconsistent testimony recall inconsistent testimony inconsistent documentary evidence therefore disregard testimony true trial judge views credibility completely impervious rule admonishes due regard trial opportunity assess credibility witnesses appeals clearly took account evidence see adequate basis record refusing accept testimony two zenith officers probative evidence see shoe machinery walling general industries graver tank mfg linde air products oregon state medical society orvis higgins cir cert denied ruth utah construction mining cir hri relies heavily respect zenith annual reports years aside fact reports except never admitted evidence find quite insufficient undermine credibility wright kaplan wright testified representative english pool confirmed understanding policy pool required radio television sets made england nothing licensed imported abroad wright testified pool representative saw possibility restrictive policy changed future subsequently dealings english radio distributor zenith given understand television question embargo precluded recovery zenith first year damage period trial modified initial measure damages reflect time taken zenith starting removal embargo build market share see supra see american banana fruit cir affirmed without specific reference issue stearns tinker rasor cir volasco products lloyd fry roofing cir cert denied cf pennsylvania sugar rfg american sugar rfg cir trial wright kaplan testified adjustments made zenith english distributor shop adapt zenith television sets english transmission system however fair import testimony trial november recall conversion zenith sets english system whether done shipment england distributor shop fact carried occasionally past questionable utility commercial basis wright kaplan stated zenith manufactured television set suitable english use without appreciably difficulty zenith faced producing new model american market record indicate zenith took steps direction end damage period except anticipation british changeover transmission system paragraph district injunction prohibits hri entering adhering enforcing claiming rights contract agreement understanding plan program person company patent pool organization association corporation entity directly indirectly restricts prevents zenith radio corporation subsidiaries exporting electronic apparatus foreign market section provides person firm corporation association shall entitled sue injunctive relief jurisdiction parties threatened loss damage violation antitrust laws conditions principles injunctive relief threatened conduct cause loss damage granted courts equity rules governing proceedings emphasis added hri informs us hazeltine obtained early termination licensing agreement crpl prepared license one canadian patents restrictions imports since hazeltine abandonment participation canadian pool occurred apparently response district judgment decree agree suggestion injunctive relief canada rendered unnecessary inappropriate see oregon state medical society concentrated phosphate export although hri free attempt demonstrate future need injunctive relief respect canada eliminated change circumstances elsewhere justifies additional modifications injunction see grant willing time undertake reappraisal injunction light developments disturbed district findings hri hazeltine conspiring english australian patent pools refused license imports appeals event sustained injunction respect english australian markets findings together zenith demonstrated intent expand export business sufficient foundation conclusion continued participation hri hazeltine english australian pools posed significant threat loss damage zenith business district injunction also included paragraph barring hri continuing coerce acceptance package license mechanism offering much lower royalty rate licensees take license entire package patents rather license merely paragraph enjoined hri conditioning directly indirectly grant license zenith radio corporation subsidiaries domestic patent upon payment greater royalty rate rate licenses granted offered others group domestic patents includes said patent district concluded plaintiff demands royalties paid admittedly unpatented apparatus constitute misuse patent rights plaintiff justify use monopolies patents arguing necessities convenience policy parties transaction free select royalty base may suit mutual convenience patentee right demand force payment royalties unpatented products record oral argument automatic radio disclose basis conclusion automatic radio forced accepting royalty rate hri use patent leverage justice harlan concurring part dissenting part concur parts ii opinion however join part iii holds patent license provision measures royalties percentage licensee total sales lawful included convenience parties unlawful insisted upon patentee first difficulty part opinion test validity royalty provisions likely prove exceedingly difficult apply consequently apt engender uncertainty area business dealing certainty law particularly desirable practice often hard tell whether license provision included instance parties licensor district courts unenviable task deciding whether course negotiations establishes insistence upon suspect provision uncertainty inherent determinations parties existing future licenses little assurance agreements enforced may predicted today decision licensor careful embellish negotiations alternative proposal making unravelling situation much difficult considerations lead view rule causes validity royalty provisions depend upon subsequent judicial examination parties negotiations disserve rather interests concerned hence think fallen short failing address question whether employment royalty provisions invariably amount patent misuse second difficulty part opinion reality overrules aspect prior decision automatic radio mfg hazeltine research without offering shadow reason law economics departing earlier ruling despite efforts distinguish automatic radio denied sustained hazeltine patent license precisely tenor one involved ground royalty provision create another monopoly creates restraint competition beyond legitimate grant patent finding significance present purposes qualifying language automatic radio believe today misconstrued opinion reading opinion whole satisfies automatic radio consider relevant whether hazeltine research insisted upon inclusion disputed provision emphasizing royalty terms inherent tendency extend patent monopoly per se misuse patents simply endeavoring distinguish prior decisions patent misuse found patent monopoly employed create another monopoly restraint competition emphasis added subsequent decision way impaired aspect automatic radio since decision finds little support prior case law one expect exposition economic reasons away automatic radio doctrine however nearest thing economic rationale declaration patent leverage may used extract licensee commitment purchase use sell products according desires patentee neither leverage used garner royalties percentage share licensee receipts sales products either case patentee seeks extend monopoly patent derive benefit attributable use patent teachings ante undertake explain insistence upon royalty enables patentee obtain economic benefit attributable use patent teachings thereby involving patent misuse must remembered patentee license right use patent solely right royalty paid apparent opinion method determining amount royalty less permissible alternatives whether insisted upon patentee one possible explanation result seems especially likely view exception cases provision included convenience parties desire protect licensees overreaching cite parties presented evidence licensees class need protection moreover explain royalty based simply upon use equally overreaching another possible justification result might royalty based directly upon use patent tend spur licensee invent around patent otherwise acquire substitute costs less royalty effect licensee knowledge must pay royalty regardless actual patent use hint rationale appears opinion moreover theory royalty objectionable largely resulting damage rest economy less efficient allocation resources rather possible harm licensee hence theory might admit exception provisions included convenience parties failure explain reasons result reached part iii opinion little assistance answering question consider crux part case whether royalty provisions held without exception constitute patent misuse recent economic analysis argues provisions may two undesirable consequences first already noted employment provisions may tend reduce licensee incentive substitute cheaper inputs patented item producing unpatented failure licensee substitute said cause price higher output lower case substitution occurred second suggested certain conditions royalty arrangement may enable patentee garner elements profit norm industry economy properly attributable licensee use patent factors cause licensee situation differ one perfect competition occur royalties based upon use accepted economic analysis indicate royalties entirely outlawed however far able find yet little discussion matters either lawyers economists find scant illumination score briefs arguments parties case pointed today automatic radio royalties may administratively advantageous patentee licensee circumstances confronted believe choice holding royalty provisions either valid invalid across board individual member adhere present rule automatic radio find unnecessary consider question whether inclusion provision held violate antitrust laws automatic radio explicitly distinguished number cases kind including gypsum mercoid investment see brulotte thys involved different question whether royalty based solely upon use invention collected use occurring patent expiration cf american photocopy equip rovico baxter legal restrictions exploitation patent monopoly economic analysis yale see see