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Clear aligner companies intensify rivalry with new lawsuit

September 26, 2018

By David Burger

In the latest battle between the two companies, 3Shape filed a federal lawsuit Aug. 28 against Align Technology for allegedly acting illegally to block competition in the marketplace for scanners for orthodontic treatment.

The California-based Align Technology is the manufacturer of the Invisalign brand of clear aligners, as well as the iTero intraoral scanner. 3Shape created the TRIOS intraoral scanner for use in the clear oral aligner market.

3Shape contends that Align is illegally holding onto their near-monopoly of clear aligners by forcing dental professionals to buy Align's intraoral scanner, which can only be used for Align's Invisalign, said Christian Lund, 3Shape vice president of corporate business development and marketing to ADA News.

Align's business practices, 3Shape alleges, prohibit healthy competition that would result in more choices and less cost for patients.

The lawsuit filed by 3Shape, a company founded and headquartered in Denmark, is the latest fracas between 3Shape and Align.

Align announced in December 2017 that it was terminating its Invisalign interoperability contract with 3Shape and would no longer accept digital scans for new Invisalign treatment from TRIOS scanners, effective at the end of January 2018. Align stated it made the decision because it had launched lawsuits against 3Shape, including six patent infringement lawsuits that asserted that 3Shape's TRIOS intraoral scanning system and dental system software infringed Align patents.

In May 2018, 3Shape responded with its own lawsuit against Align, claiming that the iTero Elements scanner infringed 3Shape's own patented technology. At that time, Tais Clausen, 3Shape co-founder and co-CEO, said in a statement posted on 3Shape's website, "We cannot allow competitors to copy our hard-earned technology breakthroughs or infringe our patents. Normally, because we believe in cooperation and openness, we would try to settle this directly and quietly with Align. However, recent events and aggressive actions by Align, not only towards 3Shape but also actions affecting doctors using TRIOS with Invisalign, compel us to vigorously defend our intellectual property by filing this complaint in the federal district court."

The TRIOS scanner is compatible with more than 40 systems, including ClearConnect, according to Mr. Lund. However, according to court papers filed in the U.S. District Court for the District of Delaware by 3Shape in August, Align manufactures and sells at least 80 percent of clear aligners in the U.S.

Dental professionals seeking to send full-mouth digital scans to Align now have only one option: Align's iTero scanner, said Mr. Lund. "More and more dentists are expressing outrage at Align's methods that ultimately make their services more expensive for their patients," he said.

Closing the system allowed Align to secure major deals with two large dental support organizations in the U.S., 3Shape contends. On July 25, 2018, Align announced a multi-year deal with Heartland Dental, a dental service organization with more than 850 supported dental offices, to place iTero scanners in member dental offices. On the same day, Align also announced that it secured a deal with Aspen Dental, with nearly 700 locations, to equip all Aspen locations with iTero scanners. 3Shape bid on both contracts but was not selected because it did not have an interoperability agreement with Invisalign, said Mr. Lund.

Align Technology did not respond to multiple requests for comment, but in January, a representative answered email questions submitted by ADA News. Shirley Stacy, vice president of corporate and investor communications for Align Technology, said at that time that less than 1 percent of their dentists were affected by the discontinued acceptance of TRIOS scanners by Align.

"It is very important that we protect [our] investment by defending our intellectual property where third parties like 3Shape infringe it," Ms. Stacy wrote. "We must do this to protect both Align's investment in technology and the investment Align customers have made in our products and services. Align does not and never will allow or endorse unlawful competition and that's what we would be doing by continuing to accept scans from U.S.-based TRIOS scanners. Align believes in a fair and lawful marketplace and there is nothing fair about a competitor copying Align's patented technology."