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Form 10-K with the SEC, the agreements prohibited Scherer from
competing in the professional dental products market.
Consequently, this document possesses little probative evidence
of what Scherer's intentions and designs for the future would
have been in the absence of the agreements. Furthermore,
Scherer's undated, internal memorandum does not evidence that,
because of "opportunistic diversification", it would, eventually,
compete with petitioner.11 If anything, we think it unlikely
that Scherer would sell the assets of Old Lorvic because it did
not fit its then current marketing strategy, and subsequently,
enter into competition with an entity endowed with significant
advantages such as petitioner.
In sum, we believe that Scherer had the economic and
industrial potential to compete, the items or products
manufactured by petitioner could be manufactured with significant
profit margins, and Scherer might, at any point in time, decide
to compete. The record, however, does not manifest that Scherer
had the intent to compete with petitioner. Scherer possessed a
significant disadvantage in that it did not have relationships
with either the suppliers or distributors. In particular,
11Petitioner and its expert witnesses suggest Scherer
possessed an economic history of periodically changing its
marketing orientation and strategies. However, petitioner has
not submitted sufficient evidence to prove or disprove this
particular thesis.
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