Case 3:22-cv-00147-B Document 148 Filed 11/20/23 Page 1 of 26 PageID 3353
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`PHILIPS NORTH AMERICA LLC
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`Plaintiff,
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`v.
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`IMAGE TECHNOLOGY CONSULTING,
`LLC; MARSHALL R. SHANNON,
`IMAGE TECHNOLOGY CONSULTING
`II, LLC; and AXIOM IMAGING
`SOLUTIONS, INC.,
`
`
`Defendants.
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
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`§
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`§
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`§
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`§
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`§
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`Case No. 3:22-cv-00147-G
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`IMAGE TECHNOLOGY CONSULTING II, LLC AND AXIOM IMAGING
`SOLUTIONS, INC.,’S AMENDED COUNTERCLAIMS
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`
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`Defendants Image Technology Consulting II, LLC (“Image II”) and Axiom Imaging
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`Solutions, Inc. (“Axiom” together with Image II referred to herein as “Defendants” and/or
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`“Counter Plaintiffs”) hereby file their Amended Counterclaims (“Amended Counterclaims”)
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`against Plaintiff Philips North America LLC (“Philips”) as follows:
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`FED. R. CIV. P. 15(a)(1) – AMENDMENT AS A MATTER OF COURSE
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`1.
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`Fed. R. Civ. P. 15(a)(1) provides that a party may amend its pleading once as a
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`matter of course, within 21 days after service of a responsive pleading or 21 days after service of
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`a motion under Rule 12(b), (e), or (f), whichever is earlier. FED. R. CIV. P. 15(a)(1).
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`2.
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`Philips served its Motion to Dismiss Defendants’ Counterclaims [Doc. 139, Doc.
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`140] on October 30, 2023.
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`3.
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`Accordingly, Defendants’ Amended Counterclaims are timely under Fed. R. Civ.
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`P. 15(a)(1).
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`IMAGE TECHNOLOGY CONSULTING II, LLC AND AXIOM IMAGING
`SOLUTIONS, INC.’S AMENDED COUNTERCLAIMS
`
`PAGE 1
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`Case 3:22-cv-00147-B Document 148 Filed 11/20/23 Page 2 of 26 PageID 3354
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`PARTIES
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`4.
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`Image II is a Texas limited liability company with a principal place of business
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`located in Desoto, Texas.
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`5.
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`Axiom is a Texas limited liability company with a principal place of business
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`located in Desoto, Texas.
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`6.
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`Philips is a Delaware limited liability company, formerly known and doing business
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`as Philips North America Corporation (a Delaware Corporation), with a principal place of business
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`located in Andover, Massachusetts.
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`JURISDICTION AND VENUE
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`7.
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`This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, as this
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`action alleges a claim arising under the laws of the United States. The Court has supplemental
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`jurisdiction over the state law claims alleged herein pursuant to 28 U.S.C. § 1367.
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`8.
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`This Court has personal jurisdiction over Philips because Counter Plaintiffs’
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`Counterclaims arise out of Philips contacts with Texas. Further, the Court has personal jurisdiction
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`over Philips because it has generally appeared by filing its claims against Image II and Axiom in
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`this Court.
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`9.
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`Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391 because Image
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`II and Axiom reside in this judicial district and/or a substantial part of the conduct, events, or
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`omissions giving rise to Image II’s claims occurred in this judicial district and/or had or have
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`connections to this judicial district.
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`INTRODUCTION
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`10.
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`Philips has launched an aggressive corporate campaign against Counter Plaintiffs
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`aimed at sabotaging Counter Plaintiffs’ business and stealing Counter Plaintiffs’ market share for
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`IMAGE TECHNOLOGY CONSULTING II, LLC AND AXIOM IMAGING
`SOLUTIONS, INC.’S AMENDED COUNTERCLAIMS
`
`PAGE 2
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`Case 3:22-cv-00147-B Document 148 Filed 11/20/23 Page 3 of 26 PageID 3355
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`Philips. Philips has intentionally and maliciously blocked Counter Plaintiffs from servicing
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`Philips’ magnetic resonance imaging machines (“MRI Machines”) owned and/or used by hospitals
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`and other medical facilities in a wrongful attempt to quash competition and corner the aftermarket
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`service industry for Philips’ MRI Machines. By implementing malware on Philips-brand MRI
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`Machines under the guise of a software upgrade, Philips has locked out its competition from being
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`able to access, service, repair, and maintain Philips-brand MRI Machines owned by hospitals and
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`healthcare facilities. Moreover, Philips has and continues to defame and disparage Counter
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`Plaintiffs directly to Counter Plaintiffs’ customers and clients by spreading lies about Counter
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`Plaintiffs’ ability to service customers in attempt to steal those customers for Philips. Philips’
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`unsavory business practices have prevented Counter Plaintiffs from satisfying service contracts
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`with Counter Plaintiffs’ customers, have tarnished Counter Plaintiffs’ respectable reputation in
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`the industry, and caused significant financial and reputational harm to Counter Plaintiffs’ and their
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`business.
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`FACTS
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`11.
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`There are four major manufacturers of MRI Machines – Toshiba, GE, Siemens, and
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`Philips (the “Manufacturers”). MRIs from these Manufacturers cost hundreds of thousands of
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`dollars and have a life expectancy of between 10 and 15 years. Despite their long lifespan, these
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`machines require frequent maintenance, testing, and calibration to ensure patient safety, as required
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`by Food and Drug Administration (“FDA”) standards. See 21 C.F.R. § 820.170. The
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`Manufacturers typically sell a new MRI Machine with only a one-year warranty for repair parts
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`and service. Accordingly, the hospitals and medical facilities that purchase MRI Machines will
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`also purchase a service contract to provide servicing and maintenance work after the one-year
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`Manufacturer warranty expires.
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`IMAGE TECHNOLOGY CONSULTING II, LLC AND AXIOM IMAGING
`SOLUTIONS, INC.’S AMENDED COUNTERCLAIMS
`
`PAGE 3
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`Case 3:22-cv-00147-B Document 148 Filed 11/20/23 Page 4 of 26 PageID 3356
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`12.
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`Philips develops, manufactures, and sells medical imaging systems, including MRI
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`Machines (“Philips MRI Machines”), to hospitals and other medical facilities. The Philips MRI
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`Machines provide critical imaging information for doctors treating seriously ill patients and are a
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`critical step in treatment and diagnosis as well as overall patient care. Hospitals and medical
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`centers operate Philips MRI Machines at all hours and need them to be available at a moment’s
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`notice. The Philips MRI Machines require technical precision in installation, service, and repair
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`work. See 21 C.F.R. § 820.170. Philips offers service contracts to hospitals and medical facilities
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`to service and repair Philips MRI Machines, often at a premium compared to the services offered
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`by an independent servicing organization (“ISO”), like Counter Plaintiffs. Thus, hospitals and
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`medical facilities often prefer to use ISOs, like Counter Plaintiffs, rather than the Manufacturers,
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`as the ISOs tend to be more affordable, faster, more efficient, and provide a better customer
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`experience. In fact, the Manufacturers have been found to charge up to seven times the per-hour
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`cost of an ISO for maintenance services.
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`13.
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`ISOs allow the owners of a Philips MRI Machine to receive installation, service,
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`and repair work on a Philips MRI Machine from a consistent service provider that has knowledge
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`of their requirements and specific systems and can perform work quickly and efficiently to provide
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`services.. Modern medical imaging devices, like Philips MRI Machines, are complex machines
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`that use computers and electronics to control nearly every function. As a result, diagnosing and
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`repairing medical imaging devices is a complex and highly technical operation. It is critical that
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`ISOs have timely access to the parts, tools, information, and training from Philips to effectively
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`carry out necessary repair and servicing work.
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`14.
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`Counter Plaintiffs are ISOs that specializes in installation, servicing, maintaining,
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`and repairing medical imaging equipment, per performance specifications as required by Food and
`
`IMAGE TECHNOLOGY CONSULTING II, LLC AND AXIOM IMAGING
`SOLUTIONS, INC.’S AMENDED COUNTERCLAIMS
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`PAGE 4
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`Case 3:22-cv-00147-B Document 148 Filed 11/20/23 Page 5 of 26 PageID 3357
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`Drug Administration (“FDA”) regulations, manufactured and sold by the Manufacturers, including
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`Philips. Counter Plaintiffs’ customers comprise healthcare facilities such as hospitals and imaging
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`clinics. Counter Plaintiffs distinguish themselves from the major Manufacturers by offering high
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`quality service, customer care, and expedited service at a lower cost. Counter Plaintiffs pride
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`themselves on their ability to provide on-demand service and repair of an MRI Machine at a
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`moment’s notice. Counter Plaintiffs’ rapid response time is critical to its business, as it is extremely
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`disruptive to the operations of a hospital or imaging center if its machines are inoperable for any
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`length of time.
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`15.
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`Typically, in order to perform diagnostic checks and to calibrate MRI Machines
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`after service or maintenance work is performed, Counter Plaintiffs will need access to the MRI
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`Machine’s basic operating system. Toshiba, GE, and Siemens all provide Counter Plaintiffs with
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`service and installation information required under 21 CFR § 820 as well as a free digital key that
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`allows Counter Plaintiffs technicians access to the MRI Machines’ operating systems for purposes
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`of installing, maintaining, and servicing the equipment as required by the FDA. While Philips had
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`previously provided ISOs like Counter Plaintiffs access to Philips MRI Machines’ operating
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`systems for the purpose of installing, maintaining, servicing and repair, Philips has now locked out
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`all ISOs, including Counter Plaintiffs, from Philips MRI Machines.
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`A.
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`Philips’ Anticompetitive and Exclusionary Conduct.
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`16.
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`Historically, Philips and ISOs, like Counter Plaintiffs, had the ability to install,
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`maintain, and service a Philips’ MRI Machine for hospitals and imaging centers. At the time they
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`purchased a Philips’ MRI Machine, these medical facilities understood that they had options
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`regarding service of the MRI Machine, and that they could retain their own in-house engineers or
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`any ISO to service, maintain, and repair the Philips’ MRI Machine. 21 CFR § 1000.55. The ability
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`IMAGE TECHNOLOGY CONSULTING II, LLC AND AXIOM IMAGING
`SOLUTIONS, INC.’S AMENDED COUNTERCLAIMS
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`PAGE 5
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`Case 3:22-cv-00147-B Document 148 Filed 11/20/23 Page 6 of 26 PageID 3358
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`to choose a service provider is an important selling point when a medical facility is looking to
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`purchase an MRI Machine, as they typically want to avoid being forced to pay premium prices for
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`the equipment manufacturer to service the MRI Machine.
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`17.
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`Starting on December 18, 2018, Philips began issuing field change orders to
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`Philips’ field engineers to implement a series of firmware updates under the title Service Pack 5
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`(“SP5”). SP5 was implemented to Philips MRI Machines owned and operated by medical facilities
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`and, for the first time, imposed a new log-in screen that blocks anyone without Philips access
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`credentials from accessing any part of the Philips MRI Machine’s operating menu, operating
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`systems, and diagnostic software, restricting the purchasers of Philips MRI Machines of the ability
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`to choose their service provider and forcing the after-market service industry to cancel contracts
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`with existing ISOs, like Counter Plaintiffs, and switch to Philips. Notably, Philips field engineers
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`were instructed to conceal SP5’s changes from the customer, and in turn, Counter Plaintiffs. Philips
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`field engineers and technicians began implementing the field change orders and installing SP5 on
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`Philips MRI Machines in February of 2019 and have since continued to routinely install SP5 on
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`MRI Machines and secure and fortify SP5 and its exclusionary features through patches, updates,
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`and fixes. Philips continues to search out Philips MRI Machines lacking the software update so
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`that Philips can continue to install SP5 and continue its attempt to exclude ISOs from servicing
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`and repairing Philips MRI Machines. Following SP5, even the medical facilities and other owners
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`of Philips MRI Machines, such as Counter Plaintiffs, owned and operated these Philips MRI
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`Machines with full access to these menu options are now locked out of their own Philips MRI
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`Machine. Owners of Philips MRI Machines with SP5 installed continue to be locked out of their
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`MRI Machines. Given Philips’ concerted effort to conceal the true nature of SP5 and given that
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`many owners of MRI Machines utilize ISOs for installation, service, and repair tasks, MRI
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`IMAGE TECHNOLOGY CONSULTING II, LLC AND AXIOM IMAGING
`SOLUTIONS, INC.’S AMENDED COUNTERCLAIMS
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`PAGE 6
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`Case 3:22-cv-00147-B Document 148 Filed 11/20/23 Page 7 of 26 PageID 3359
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`Machine owners may not immediately be aware of the impact installing SP5 presents.
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`18. Moreover, SP5 carries with it malware that hacks the Philips MRI Machine and
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`automatically sends communications to Philips regarding the Philips MRI Machine’s use, who
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`accessed it, what actions were taken, and other data that not only violates customer privacy, but
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`also implicates potential HIPPA violations. SP5 did nothing to improve the accuracy, efficiency,
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`or overall performance of Philips’ MRI Machines. Instead SP5 simply prohibited ISOs and owners
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`of Philips MRI Machines from accessing information and menu options needed to properly service
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`or repair Philips MRI Machines. Counter Plaintiffs and other ISOs are locked out of performing
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`the most basic diagnostic and troubleshooting tests on the machine and cannot run necessary
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`calibrations after performing hardware repairs. Even rudimentary features, such as changing the
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`time on the machine or changing a user name, are now behind the technological barrier Philips
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`imposed by installing SP5 on its MRI Machines owned and operated by healthcare facilities.
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`Philips continues to issue updates, bug fixes, and other technological fortification for SP5 that
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`secure its ability to lock out ISOs and corner the aftermarket service industry for itself.
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`19. When it installed SP5, Philips told the owners of the MRI Machines that SP5 was
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`a mandatory safety and security measure and that hospitals and clinics would be out of compliance
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`with applicable regulations if the updates were not installed. Philips never told the owners that SP5
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`would require that Philips service the Philips MRI Machine going forward, that SP5 locked out
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`ISOs, or that SP5 would be sending Philips data regarding the Philips’ MRI Machine’s use,
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`including sensitive and private medical information. In reality, the sole purpose of SP5 was simply
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`to block ISOs from being able to service or repair Philips’ MRI Machines, and the update did
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`nothing to improve MRI Machines’ capabilities or bolster patient safety or performance standards.
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`SP5 allows Philips to corner the market for service of Philips’ MRI Machine and situate itself as
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`IMAGE TECHNOLOGY CONSULTING II, LLC AND AXIOM IMAGING
`SOLUTIONS, INC.’S AMENDED COUNTERCLAIMS
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`PAGE 7
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`Case 3:22-cv-00147-B Document 148 Filed 11/20/23 Page 8 of 26 PageID 3360
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`the sole aftermarket service provider for any and all Philips MRI Machines.
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`20. Moreover, unlike the other Manufacturers, Philips withholds access credentials or
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`a digital key from ISOs, including Counter Plaintiffs, and fails to license any of its copyrighted
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`software to Counter Plaintiffs or other ISOs. Instead, if a hospital or imaging center wants to use
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`an ISO to repair its machine, it typically must contact Philips and request that a Philips technician
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`physically come out to facility to unlock the Philips MRI Machine. The Philips technician often
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`takes two or more days to schedule a site visit, during which time the Philips MRI Machine
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`requiring service is often unusable. Given the significant up-front cost of Philips’ MRI Machines,
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`healthcare facilities generally do not have multiple MRI Machines. This means that healthcare
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`facilities are forced to deny services from patients seeking care and treatment when their equipment
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`is down. Further, Philips charges the Philips MRI Machine owner for travel time in additional to
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`the time it takes for the Philips technician to unlock the machine, which can total roughly $3,000
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`to $5,000 every time the MRI Machine needs to be unlocked for an ISO to perform service.
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`21.
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`Importantly, before Philips installed SP5 along with all its updates, healthcare
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`facilities could retain Counter Plaintiffs to install, service, and repair their Philips MRI Machines
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`without involving Philips, without waiting days for a Philips technician to unlock the MRI
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`Machine, and without having to pay Philips thousands of dollars in fees per visit in addition to
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`Counter Plaintiffs’ service fee. Accordingly, SP5 has quashed the ISOs’ two biggest advantages –
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`lower prices and faster response times. Indeed, by imposing untenable delays in responding to
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`unlock requests and commanding prohibitively high unlocking costs, Philips has unlawfully
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`quashed any cost or time savings a Philips MRI Machine owner previously gained by using ISOs,
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`including Counter Plaintiffs. In other words, instead of competing by lowering prices, quality of
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`service, or improving response time, Philips has acted to raise prices and lengthen service time of
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`IMAGE TECHNOLOGY CONSULTING II, LLC AND AXIOM IMAGING
`SOLUTIONS, INC.’S AMENDED COUNTERCLAIMS
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`PAGE 8
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`Case 3:22-cv-00147-B Document 148 Filed 11/20/23 Page 9 of 26 PageID 3361
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`its competitors to levels that leave Philips as the only viable option in the market. Philips’
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`implementation of SP5, subsequent updates to SP5, and purposeful delays and costs associated
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`with unlocking its MRI Machines have effectively preventing ISOs like Counter Plaintiffs from
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`performing service and maintenance on any Philips MRI Machine that Philips had updated to SP5.
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`22.
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`Philips has no valid business justification for blocking Counter Plaintiffs and other
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`ISOs from installing, servicing, maintaining, or repairing Philips’ MRI Machines. Counter
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`Plaintiffs’ technicians, including Shannon, are trained experts in the field and can provide the same
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`or better service work as Philips’ technicians. There is no greater risk of harm to consumers or
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`patients as a result of Counter Plaintiffs and other ISOs having access to install, service, or repair
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`of Philips MRI Machines. In fact, healthy competition would foster a better outcome for patients
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`and patient safety and performance standards, as Philips will have no incentive to compete by
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`offering high-quality services if it is the only option available in the market.
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`23. Moreover, Philips’ exclusion of ISOs, including Counter Plaintiffs, from Philips
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`MRI Machines has impeded and continues to impede ISOs like Counter Plaintiffs from fulfilling
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`the critical function of making sure that Philips MRI Machines function properly and are available
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`for much-needed patient use with the least possible downtime. Philips’ exclusionary actions and
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`limitations directly harm competition from ISOs and Counter Plaintiffs and their ability to compete
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`with Philips in the aftermarket service. Philips has interfered with Counter Plaintiffs’ contracts
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`with its customers by prohibiting Counter Plaintiffs from accessing Philips’ MRI Machines. As a
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`result of Philips’ tortious and wrongful conduct, Counter Plaintiffs have suffered significant
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`economic and reputational harm. Philips’ conduct also makes the performance of Counter
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`Plaintiffs’ service contracts more burdensome, difficult, expensive, and, at times, impossible.
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`These restrictions unnecessarily and unreasonably restrict downstream repair markets, increase the
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`IMAGE TECHNOLOGY CONSULTING II, LLC AND AXIOM IMAGING
`SOLUTIONS, INC.’S AMENDED COUNTERCLAIMS
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`PAGE 9
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`Case 3:22-cv-00147-B Document 148 Filed 11/20/23 Page 10 of 26 PageID 3362
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`healthcare costs for consumers in Texas and throughout the United States, and are in violation of
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`Federal and Texas law, as well as against public policy. More importantly, when Philips limits or
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`prevents ISOs ability access Philips’ MRI Machines, this leads to patient care and patient safety
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`and performance standards concerns.
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`24.
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`Philips also has told and is telling Counter Plaintiffs’ customers that Counter
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`Plaintiffs are unable to legally service Philips MRI Machines, that Counter Plaintiffs are
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`conducting illegal activity by servicing Philips MRI Machines, and that Counter Plaintiffs have
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`stolen Philips alleged proprietary information. Specifically, within the past year, Philips has spread
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`these lies and falsehoods to Counter Plaintiffs’ customers, including, but not limited to, Alpha
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`Biomedical and Diagnostic Corp. (“Alpha”), to disparage Counter Plaintiffs’ business in Philips’
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`attempt to siphon Counter Plaintiffs’ market share for itself. Philips’ scheme of lies and deceit
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`directly damages Counter Plaintiffs’ reputations and financially injures Counter Plaintiffs by
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`causing customers to cancel service contracts and preventing Counter Plaintiffs from obtaining
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`new customers.
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`25.
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`Based on Philips’ wrongful conduct, Counter Plaintiffs have encountered resistance
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`in the industry to market and provide its services. Counter Plaintiffs, and other ISOs, had existing
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`customer relationships with medical facilities and imaging centers to provide installation, service,
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`repairs, and maintenance to MRI Machines. Prior to the implementation of SP5, Counter Plaintiffs
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`and other ISOs were able to service the MRI Machines owned by their customers. However,
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`Philips’ attempts to take Counter Plaintiffs’ customers and harm Counter Plaintiffs’ reputations
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`have caused significant injury to Counter Plaintiffs, and Counter Plaintiffs’ sales of parts and
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`service for Philips MRI Machines has suffered. Plaintiff’s conduct has interfered with Counter
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`Plaintiffs’ ability to service existing and potential customers, including, but not limited to,
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`IMAGE TECHNOLOGY CONSULTING II, LLC AND AXIOM IMAGING
`SOLUTIONS, INC.’S AMENDED COUNTERCLAIMS
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`PAGE 10
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`Case 3:22-cv-00147-B Document 148 Filed 11/20/23 Page 11 of 26 PageID 3363
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`Baylor Health Systems and the hospitals and facilities in its healthcare network, UT
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`Southwestern and the hospitals and facilities in its healthcare network; . Further, Philips’
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`conduct has quashed business opportunities that Defendants would have obtained except for
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`Philips’ exclusionary actions. Through Philips exclusionary conduct, Philips has attempted to
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`position itself as the sole provider of installation and service for Philips MRI Machines, effectively
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`pushing out ISOs, including Counter Plaintiffs. Philips has engaged in such conduct for the sole
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`purpose of extinguishing its competitors and owning the aftermarket installation and service
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`market.
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`B.
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`The Relevant Antitrust Market.
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`26.
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`The relevant antitrust market is the market for the provision of installation,
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`maintenance, service, and repair on Philips MRI Machines in the United States and Puerto Rico
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`(the “Market”). A single MRI Machine can cost a customer hundreds of thousands of dollars to
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`purchase. Thus, it is exceedingly unlikely that a healthcare facility faced with a price increase in
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`the aftermarket for servicing its Philips MRI Machine will opt to purchase a new MRI Machine,
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`whether from Philips or another Manufacturer. MRI Machines are an integral part of healthcare
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`services and require frequent service and maintenance. Moreover, other types of imaging
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`equipment use different technologies and generally are not interchangeable with MRI Machines.
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`Thus, MRI Machines must be up and running at all times to ensure healthcare services can be
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`administered to ensure patient safety and performance standards.
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`27.
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`Given the prohibitively high cost of purchasing a new MRI Machine, coupled with
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`the need for MRI Machines to be operating at all times, healthcare facilities that own a Philips
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`MRI Machine have no alternative or substitute for paying to service and maintain the Philips MRI
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`Machines. In other words, these owners are locked into the Philips MRI Machine they own. If
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`IMAGE TECHNOLOGY CONSULTING II, LLC AND AXIOM IMAGING
`SOLUTIONS, INC.’S AMENDED COUNTERCLAIMS
`
`PAGE 11
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`Case 3:22-cv-00147-B Document 148 Filed 11/20/23 Page 12 of 26 PageID 3364
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`these healthcare facilities or other owners of Philips’ MRI Machines are faced with an increase in
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`the price of servicing the MRI Machine above the competitive market rate, they have no option
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`but to pay the supracompetitive price rather than purchase a new machine for hundreds of
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`thousands of dollars or forego service altogether, which is not permitted under 21 CFR § 1000.55.
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`28.
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`Philips has monopoly power in this Market for servicing, maintaining, and
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`repairing its machines. On information and belief, since Philips implemented its SP5 requiring
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`consumers to obtain a costly and slow-to-arrive key prior to having the Philips’ MRI Machines
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`serviced by an ISO, approximately 80% of healthcare facilities that have Philips MRI Machines
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`now also use Philips to install, service, and maintain the Philips’ MRI Machines, and this number
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`is only increasing with Philips continued efforts to fortify SP5 with updates and continued
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`installation of SP5 on Philips MRI Machines. This is in stark contrast to the other Manufacturers,
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`which, based on Counter Plaintiffs’ experience in the industry, have only about 40-50% of the
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`markets for servicing their respective machines. The remaining and continuously dwindling share
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`of the Market is comprised of smaller ISOs, such as Counter Plaintiffs, that compete with Philips.
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`29.
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`There are numerous barriers to entry for new participants in the Market. Philips’
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`continued implementation and fortification of technological barriers through updates, patches, and
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`fixes prevents any competitors from participating in the Market. Moreover, high costs of servicing
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`equipment, required technical skill, and industry know-how of Philips’ MRI Machines raise
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`additional barriers for competitors looking to enter the Market.
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`30.
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`In the face of direct competition from Counter Plaintiffs and other ISOs, Philips has
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`engaged in purposeful and exclusionary conduct and has used its dominant Market position and
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`monopoly power to hinder, restrain, and harm competition from Counter Plaintiffs and other ISOs
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`and to unlawfully maintain its monopoly power and exclude competition for aftermarket services
`
`IMAGE TECHNOLOGY CONSULTING II, LLC AND AXIOM IMAGING
`SOLUTIONS, INC.’S AMENDED COUNTERCLAIMS
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`PAGE 12
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`Case 3:22-cv-00147-B Document 148 Filed 11/20/23 Page 13 of 26 PageID 3365
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`on its MRI Machines. In order to suppress competition, Philips has imposed unreasonable and
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`anticompetitive barriers in the industry, such as its implementation of SP5, continued updates
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`related to SP5, continued installation of SP5 on Philips’ MRI Machines, and delayed response
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`times and increased costs for unlocking a Philips’ MRI Machine, that prevent ISOs like Counter
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`Plaintiffs, and even the purchasers of Philips’ MRI Machines themselves, from accessing the
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`Philips MRI Machines for service, maintenance, and repair, even if ISOs like Counter Plaintiffs
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`already have the knowledge, information, and skill set to service the Philips MRI Machine. Under
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`the guise of a routine software update, Philips used and continues to use SP5 to infiltrate Philips
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`MRI Machines for the sole purpose of eliminating competition and stealing Counter Plaintiffs and
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`other ISOs’ Market share.
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`31.
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`Philips seeks to restrict access to information and materials that are not confidential
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`and/or not trade secret and were already widely available to the industry, including to ISOs like
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`Counter Plaintiffs. Philips seeks to unfairly and deceptively limit access, information, training,
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`tools, and other materials necessary to perform required maintenance and seeks to monopolize the
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`aftermarket service to Philips imaging devices contrary to applicable laws, regulations, and
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`legitimate industry practice.
`
`COUNT I
`MONOPOLIZATION IN VIOLATION
`OF SECTION 2 OF THE SHERMAN ANTITRUST ACT (15 U.S.C. § 2)
`
`32.
`
`Counter Plaintiffs repeat and re-allege the preceding paragraphs of their
`
`Counterclaims as if fully set forth herein.
`
`33.
`
`Philips has monopoly power in the Market for the provision of the installation,
`
`maintenance, service, and repairs on Philips’s CT and MRI machines in the United States.
`
`34.
`
`Philips willfully acquired and maintains its monopoly power through restrictive and
`
`exclusionary measures, as distinguished from growth or development as a consequence of a
`
`IMAGE TECHNOLOGY CONSULTING II, LLC AND AXIOM IMAGING
`SOLUTIONS, INC.’S AMENDED COUNTERCLAIMS
`
`PAGE 13
`
`

`

`Case 3:22-cv-00147-B Document 148 Filed 11/20/23 Page 14 of 26 PageID 3366
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`superior product, business acumen, or historic accident.
`
`35.
`
`36.
`
`Philips specifically intended to monopolize the Market.
`
`Philips’ anticompetitive and exclusionary conduct, detailed more fully above,
`
`includes its efforts to lock Counter Plaintiffs and other competitors out of the Market by imposing
`
`unreasonable and exclusionary technological barriers that block access to the Philips’ MRI
`
`Machines for purposes of servicing, repairing, and maintaining them. These measures significantly
`
`impair Counter Plaintiffs’ ability to perform installation, service and repair work for hospitals and
`
`clinics with Philips-brand MRI Machines.
`
`37.
`
`Philips’s anticompetitive conduct also includes its refusal to provide Counter
`
`Plaintiffs or other ISOs with credentials or a license whereby they can access the machines’ basic
`
`systems for purposes of performing routine servicing, repairs, and installation of the Philips MRI
`
`Machine.
`
`38.
`
`Philips is the only one of the major Manufacturers who refuses to provide such
`
`credentials to ISOs for MRI Machines or offer alternative methods to access Philips’ MRI
`
`Machines.
`
`39.
`
`Philips willfully and intentionally engaged in this anticompetitive conduct in order
`
`to improperly acquire and maintain monopoly power in the Market.
`
`40.
`
`These measures serve no valid business purpose and were imposed for purposes of
`
`eliminating competition in the Market.
`
`41.
`
`Philips’s anticompetitive conduct has caused significant antitrust injuries:
`
`excluding competition in the Market, eliminating consumer choice in the Market, and raising
`
`prices in the Market.
`
`42.
`
`Counter Plaintiffs have suffered damage to its business as a result of Philips’s
`
`IMAGE TECHNOLOGY CONSULTING II, LLC AND AXIOM IMAGING
`SOLUTIONS, INC.’S AMENDED COUNTERCLAIMS
`
`PAGE 14
`
`

`

`Case 3:22-cv-00147-B Document 148 Filed 11/20/23 Page 15 of 26 PageID 3367
`
`exclusionary conduct. For example, it has lost revenue and business opportunities as a result of
`
`being unable to compete on an equal playing field in the Market. Customers that otherwise would
`
`have engaged Counter Plaintiffs as their service and repair providers have instead been coerced to
`
`enter into service contracts with Philips. As a direct, substantial, proximate, and immediate result
`
`of Philips’ attempt to monopolize the Market, Counter Plaintiffs have been injured in its business
`
`and trade in an amount to be established at trial.
`
`COUNT II
`ATTEMPTED MONOPOLIZATION IN VIOLATION
`OF SECTION 2 OF THE SHERMAN ANTITRUST ACT (15 U.S.C. § 2)
`
`43.
`
`Counter Plaintiffs repeat and re-alleges the preceding paragraphs of its
`
`Counterclaims as if fully set forth herein.
`
`44.
`
`Philips specifically intended to monopolize the Market for servicing of Philips MRI
`
`Machines.
`
`45.
`
`Philips’s anticompetitive conduct, detailed more fully above, includes its efforts to
`
`lock Counter Plaintiffs and other competitors out of the Market by imposing unreasonable and
`
`exclusionary technological barriers that block access to the machines for purposes of installing,
`
`servicing, repairing, and maintaining them. These measures significantly impair Counter
`
`Plaintiffs’ ability to perform installation, service and repair work for hospitals and clinics with
`
`Philips-brand MRI Machines.
`
`46.
`
`Philips’ anticompetitive conduct also includes its refusal to provide Counter
`
`Plaintiffs or other ISOs with credentials or a license whereby they can access the Philips’ MRI
`
`Machine’s basic systems for purposes of performing routine servicing and repairs.
`
`47.
`
`Philips is the only one of the major Manufacturers that refuses to provide such
`
`credentials to ISOs or offer alternati