Align Technology, maker of the clear aligner Invisalign, must face renewed antitrust litigation alleging it cut off compatibility with rival intraoral scanners to protect its dominance in the clear aligner market. The U.S. Court of Appeals for the Ninth Circuit reversed a lower-court ruling that had favored Align and sent the case back.
According to the competition policy outlet CPI (Competition Policy International), the appeals court ruling came on October 5 (local time).
Scanner Cutoff and the 'Fusion' Discount
The litigation traces back to two class actions: one filed by dental practices in 2020, the other by consumers in 2021. Both allege that Align blocked competition in both the clear aligner and intraoral scanner markets.
At the center of the case is Align's unilateral termination, in December 2017, of the compatibility agreement it had struck in 2015 between the Invisalign system and TRIOS, the intraoral scanner made by Denmark's 3Shape. That cutoff came as Align's core patents were nearing expiration and it was locked in a separate patent fight with 3Shape. The lawsuits also allege that Align used its own scanner, iTero, to protect its clear aligner market share. Under a program called Fusion, Align reportedly offered discounted iTero pricing only to practices that submitted a minimum number of Invisalign cases per year, and struck exclusive-dealing agreements with two of the largest dental service organizations (companies that operate multiple practices, or DSOs) in the U.S. barring them from using competitors' products. During the period covered by the suits, Align held roughly 90% of the U.S. clear aligner market.
Lower-Court Ruling Reversed, Dissent Remains
The U.S. District Court for the Northern District of California had earlier granted Align summary judgment (a ruling that resolves a case on the law alone, without a full trial), aiming to end the litigation. But the Ninth Circuit found that genuine factual disputes remained: whether the timing of the compatibility cutoff, which coincided with Align's patent expirations and its separate patent fight with 3Shape, was anticompetitive, and whether the Fusion discounts and DSO exclusivity terms actually pushed competitors out of the market. In the court's view, those are issues that must be argued before a jury. The case now returns to the Northern District of California for full proceedings.
Two of the three judges on the panel joined that conclusion. The third judge agreed with reversing the lower court but wrote separately to express concern that the majority opinion had broadened the legal standard for refusal-to-deal liability too far.
Scanner Choice in Korean Clinics
The situation is different for clinics in Korea. The compatibility cutoff at issue in this case was limited to the United States, and in Korea, intraoral scanners such as iTero, 3Shape's TRIOS, and Medit's i700 are reportedly used together without being tied to a specific clear aligner brand. A good number of clinics have obtained Invisalign treatment plans using scans taken with TRIOS or Medit devices as well.
Still, the litigation is far from over. With the case headed back to the lower court for a jury trial, no changes affecting supply or pricing in Korea have been identified for now. Regardless of how the lawsuit is ultimately resolved, patients choosing a clear aligner can still ask in advance which scanner a clinic uses and whether the resulting scan can be used for treatment plans from other brands.