Ortho Caps challenges Align European patents

In response to a patent infringement lawsuit filed by Align Technology, Ortho Caps, a German maker of orthodontic aligners, is challenging Align's European patents.

Align Technology filed the lawsuit against Ortho Caps on December 21, 2011, in the District Court of Dusseldorf, Germany. The company alleges that Ortho Caps infringes five Align patents -- EP 2 263 599, EP 2 263 598, EP 0 989 828, EP 1 369 091, and EP 1 143 872 -- with respect to the production and sale of Ortho Caps Twin Aligner system.

But Ortho Caps is now challenging that lawsuit, and also plans to file invalidity lawsuits against two other European patents owned by Align. If Ortho Caps is successful, Align's European patents could be revoked by the European Patent Office in all 27 European countries, the company noted.

Align Technology has pursued patent litigation against other competitors in the past. Earlier this year, the company filed two lawsuits against ClearCorrect, one alleging that ClearCorrect is infringing eight Align patents by making, offering to sell, and selling its clear-aligner therapy systems and the other alleging that ClearCorrect is engaging in unlawful business practices.

ClearCorrect claimed this was a reversal of Align's position from just two years ago. In February 2009, ClearCorrect filed a lawsuit against Align to keep Align from potentially suing the company over alleged patent infringement, as it had done to other competitors, including Ormco and OrthoClear. In April 2009, ClearCorrect voluntarily dismissed that lawsuit after Align told court officials it had no intention of suing ClearCorrect for patent infringement.

Also in 2009, Align paid Ormco $13 million in cash and 7.6 million shares as part of a settlement agreement related to patent litigation between the two companies. The two companies had been involved in patent litigation since 2003 when Ormco sued Align for patent infringement and Align won. Ormco appealed that decision, and in August 2007 the Federal Circuit Court of Appeals ruled that 86 of Ormco's 92 claims were invalid and not infringed by Align. Ormco pursued the six remaining claims, and in June 2009 a jury found in favor of Ormco's patent infringement charges against Align.