En Banc Review: Intuitive Surgical Asks the Ninth Circuit to Restore a Lock-In Defense Monopolists Never Had A Right To
Intuitive reportedly seeks en banc review of the Ninth Circuit’s aftermarket ruling. The article argues that proven power in the equipment market should remove the need for additional proof of customer lock-in.
According to September 29 reporting, Intuitive Surgical has sought rehearing en banc of the Ninth Circuit’s August 13 decision in Surgical Instrument Service, arguing that the panel created a new route to aftermarket monopolization claims.[1] The court should preserve the ruling. Requiring proof that customers were locked in makes little sense when the defendant’s equipment monopoly already deprives them of meaningful alternatives.
My earlier analysis explained why the Kodak/Epic requirements depend on competition in the foremarket, the market for the initial equipment purchase.[2] That competition might restrain what a manufacturer charges later for proprietary parts or service. The requirements test whether that restraint actually works.
In Kodak, competition among equipment sellers did not necessarily preclude monopoly power over parts and service. Information gaps and switching costs could prevent customers from disciplining aftermarket prices. Epic developed requirements for establishing a single-brand aftermarket, including consumer unawareness of restrictions, obstacles to lifecycle pricing and significant switching costs.[3]
Surgical Instrument Service (SIS) presented evidence of Intuitive’s share exceeding 99% in the market for minimally invasive soft-tissue surgical robots and reaching 100% in the aftermarket for EndoWrist instruments. After three weeks of trial, the district court required SIS to prove the Kodak/Epic factors. SIS had offered no such evidence and stipulated to an adverse judgment to appeal the instruction. The panel reversed.[4]
In the panel proceedings, Intuitive raised an intelligible concern. Treating every manufacturer as a monopolist over its own products would make brand ownership enough to trigger antitrust scrutiny. The panel addressed that concern by requiring proof of power in the equipment foremarket before dispensing with the additional aftermarket requirements. It left the precise threshold open because Intuitive’s share exceeded 99%.
That distinction is economically coherent. Knowing the lifetime cost of a surgical robot helps discipline its manufacturer when a hospital can choose a competing system. Where meaningful alternatives are absent, disclosure supplies information without supplying an effective exit. Requiring additional proof of surprise or costly switching would give the dominant supplier a defense premised on competitive conditions its market power has displaced.[5]
The panel’s correction leaves ordinary market definition and proof of anticompetitive conduct in place. It reversed the judgment because the jury instruction was erroneous and remanded the case. The panel left Intuitive’s liability unresolved.[6]
For platforms controlling both hardware and repair, the consequence is substantial. A supplier’s command of the equipment market should count toward explaining its downstream power. Courts should not require challengers to prove that competition failed to protect customers after they have demonstrated why that competition was absent. The Ninth Circuit should retain that distinction.
[1] Bryan Koenig, Surgical Robot Co. Says 9th Circ. 'Expands' Antitrust Law, Law360 (Sept. 29, 2026), https://www.law360.com/articles/2531319 (reporting Intuitive’s rehearing request). The petition’s text and filing date were not independently verified.
[2] J.R. Howell, Aftermarket Monopolization After Intuitive Surgical, The American Counsel (Aug. 14, 2026), https://www.theamericancounsel.com/aftermarket-monopolization-after-intuitive-surgical/ (explaining the foremarket-power distinction).
[3] Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 465–77 (1992) (explaining information and switching costs). Epic Games, Inc. v. Apple, Inc., 67 F.4th 946, 977 (9th Cir. 2023) (specifying aftermarket requirements).
[4] Surgical Instrument Serv. Co. v. Intuitive Surgical, Inc., No. 25-1372, slip op. at 6, 13–14, 30 (9th Cir. Aug. 13, 2026) (describing the evidence and holding the instruction erroneous).
[5] Id. at 28 n.6, 29–30 & n.7 (rejecting the brand-monopoly objection and explaining the factors’ competitive premise while reserving the foremarket-power threshold).
[6] Id. at 16–20, 28, 33 (applying ordinary antitrust analysis and remanding).