There has been a lot of interesting discussion linking the Epic complaints to "aftermarket" claims under Section 2 of the Sherman Act, a la Kodak (1992). See, e.g., interesting threads from @randypicker and @johnmarknewman.

A few quick thoughts on how Kodak claims: (1/x)

Kodak remains good law. But it is worth noting that single-brand aftermarket claims have no fared well in the lower courts. E.g., Goldfine & Vorrasi's analysis of lower court opinions between 1992-2003 demonstrates that lower courts limited its application in two ways. (2/x)

The first is restricting its application to changes in policy. @randypicker hints at this distinction in his analysis of "static" vs "dynamic" monopolization, terminology I don't love bc it has other important connotations in antitrust re: static v dynamic competition. (3/x)

The second is focusing on product market definition, i.e. rejecting the single brand relevant market. Lower courts are not often persuaded by these theories. So much so that G & V's article declares the doctrine is "Dying a Slow Death in the Lower Courts." (4/x)

Kobayashi and Wright update the G&V analysis to claims through January 2008:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1143602

20 of 22 were decided for the defendant on a motion to dismiss, motion for summary judgment, or post-trial
motion for judgment as a matter of law. (5/x)

Combining the two analyses, from 1992 to 2008, defendants prevail in Kodak claims about 91.3 percent of the time. I've not extended the analysis to current - but my casual empirical sense from reading Section 2 cases is that not much has changed here. (6/x).

There are interesting questions about lower courts' hostility to Kodak claims. I am not going to try to address them here. K&W discuss the possibility that an expansive liability theory (ex post opportunism) + overlap w contract remedies lead to a narrow construction. (7/x)

Lower courts have handled "breach of contract" patent holdup cases based on ex post opportunism in a similar fashion:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2704591

(8/x)

The complaints involve other claims. And I've not studied them carefully enough to talk about the merits yet. But I thought I would add this perspective on Kodak claims in the lower courts for those interested. (9/9)