A Medical Device Daily

The war of words continues to escalate in a lawsuit between Align Technology (Santa Clara, California) and OrthoClear (San Francisco), two companies competing in developing orthodontic aligners, and both recently claiming victory in recent court rounds.

OrthoClear this week reported that in a suit pending in San Francisco County Superior Court, the court awarded OrthoClear an initial “victory” over plaintiff Align.

OrthoClear said that upon its challenge to Align’s complaint, the court dismissed nine of the 16 claims brought by Align, including Align’s “claims of unfair competition, interference with prospective economic advantage, [and] conversion, as well as unjust enrichment . . .” It said also that the court ordered Align “to not re-file its conspiracy claim.”

“While we believe this suit should not have been filed in the first place, we are pleased that the court has confirmed that these claims were deficient,” said Peter Riepenhausen, chairman of OrthoClear.

On the other side, Align reported that it recently filed an amended complaint in the company’s multi-claim lawsuit against OrthoClear, OrthoClear Holdings and individual defendants and former Align employees, Muhammad Ziaullah Chishti, Bao Tran, Peter Riepenhausen, Joe Breeland, Jeff Tunnell, Christopher Kawaja and Charles Wen.

Align amended the complaint, it said, to consolidate several original causes of action and to update the original complaint by including additional evidence introduced in support of its “successful application” for a temporary restraining order (TRO) granted by the court after the filing of Align’s original complaint.

Last month, the San Francisco County Superior Court ruled on “demurrers” – technical challenges – to the original complaint and cross-complaint filed by OrthoClear and Align, respectively.

Align said the court did not dismiss any of its substantive claims, and it denied OrthoClear’s challenges to “the core” of its complaint – Align’s claims of misappropriation of trade secrets and breach of contract – by overruling the OrthoClear defendants’ demurrers to these causes of action.

In addition, Align said that the court granted its request for permission to amend its original complaint to consolidate several duplicative causes of action and to specific evidence not available to Align when the original complaint was filed in February, including evidence later presented in support of Align’s successful application for a TRO and preliminary injunction.

Align said that additions to the amended complaint include what it called “evidence demonstrating among other things that Chishti recruited current and former Align employees for OrthoClear as early as 2002, while he was still chairman of Align’s board of directors.”

Additionally, it alleged that Tran, Align’s in-house patent counsel, and Breeland, Align’s vice president of sales, participated in telephone conferences and in-person meetings with Chishti and the other defendants, while they were still employed by Align, for the purpose of recruiting other current Align employees to join OrthoClear.

“The only substantive evidentiary ruling in this case to date is the TRO awarded by the court in February, after reviewing the sworn evidence submitted by both Align and OrthoClear,” said Roger George, Align’s vice president, legal affairs and general counsel. “In order to obtain a TRO and preliminary injunction, the party seeking the orders must demonstrate that it is likely to succeed on the merits of the case at trial. The court’s order granting Align’s TRO application, in the face of vigorous opposition by OrthoClear and its former law firms, speaks for itself,” he said.