The 9th U.S. Circuit Court of Appeals reversed a lower court’s summary judgment in favor of Align Technology, reviving refusal-to-deal antitrust claims brought by dentists and patients over the Invisalign maker’s decision to stop accepting scans from 3Shape’s Trios intraoral scanners in the U.S., according to an update published on VitalLaw.
Align and 3Shape agreed in 2015 to make Trios scanners compatible with the Invisalign system. Align ended the agreement in December 2017 with one year remaining while it was pursuing patent litigation against 3Shape and as several Invisalign-related patents neared expiration. Dental practices and patients then filed class actions alleging the move violated the Sherman Act, and a district court ruled in Align’s favor in February 2024.
In its October 5 decision, the appeals panel found that Align had offered a legitimate business reason for ending the agreement: protecting its patents. However, the plaintiffs’ expert testimony suggested the termination would actually weaken Align’s position in its patent case against 3Shape, creating a factual dispute that a jury should resolve. One judge agreed with the outcome but objected to what he called the majority’s expansion of the legal standard for refusal-to-deal claims.
The court also found that Align waived attorney-client privilege by relying on CEO Joseph Hogan’s testimony that he ended the agreement on the advice of counsel. If Align continues to rely on that testimony, the district court will need to reopen discovery so the plaintiffs can learn who gave that advice.
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