Antitrust Law Daily Wrap Up, ANTITRUST—9th Cir.: Invisalign® manufacturer must face refusal to deal allegations, (Oct 6, 2026)

By Kenneth H. Ryesky, M.B.A., J.D.

Premature termination of software interoperability agreement with competitor was done at a time when patent litigation was pending and several patents were approaching expiry.

A Ninth Circuit panel has reversed and remanded a district court's summary judgement grant on a refusal-to-deal allegation brought against an orthodontic appliance manufacturer. The manufacturer had developed and patented a system whereby measurements inside a patient's mouth are taken with a scanner. The manufacturer had discontinued a software interoperability agreement with a competitor scanner manufacturer. Putative class actions brought by dentists and consumers were consolidated, and the district court granted summary judgment on the refusal-to-deal claims. On appeal, the Ninth Circuit reversed and remanded the case, finding there were unsettled questions of fact regarding the manufacturer's termination of the agreement. For the purposes of the appeal, the dental aligner market was found to be the relevant market. One of the judges on the appellate panel took issue with the other two judges' "expansion of the legal standard for refusal-to-deal claims," but concurred in the result (Simon and Simon, PC v. Align Technology, Inc., No. 24-1703 (9th Cir. Oct. 5, 2026)).

Background. Align Technology, Inc. (Align) developed and gained market dominance with its Invisalign® system of transparent orthodontic appliances. The Invisalign® system entails the use of a digital intraoral scanner, which simplifies and expedites a previous state-of-the-art method that necessitated the taking of wax impressions in order to craft an orthodontic appliance suitable for the unique configuration inside each individual patient's mouth. Align acquired the rights to and subsequently improved upon the iTero™ scanner. The iTero™ software is compatible with the Invisalign® system, so orthodontists can place orders with Align directly for each individual patient. Align has enabled other scanners to have digital interoperability with its Invisalign® system.

Denmark-based 3Shape A/S (3Shape) markets its TRIOS®, an intraoral digital scanner, which Align considers to be its primary scanner market competitor. The TRIOS® scanner was designed to be interoperable with multiple orthodontic appliance systems.

In December 2015, Align agreed with 3Shape to make TRIOS® compatible with the Invisalign® system. By its terms, the agreement preserved Align's U.S. patents and other intellectual property rights, and was terminable at will by either party. In December 2017, Align exercised its termination right, announcing that it would cease accepting orders using measurements from U.S. TRIOS® scanners. At that time, some of Align's patents associated with Invisalign® technology were nearing expiration.

Some dental practice entities filed putative class action lawsuits against Align, alleging monopolization, refusal to deal, and other Sherman Act Section 2 violations. A similar putative class action lawsuit by individual patients who had purchased Invisalign® appliances was consolidated with the dentists' lawsuit; class certification was granted by the district court. Subsequently, summary judgment was granted to Align by the district court on its refusal to deal claim. The dentists and the individual patients appealed the district court's grant of summary judgment to the Ninth Circuit.

Refusal to deal – the Aspen Skiing framework. The appellate court analyzed the refusal to deal according to the three-step burden-shifting scheme set forth in the Aspen Skiing case as a starting point [Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985)].

The plaintiffs had satisfied the first step of the Aspen Skiing scheme, a prima facie showing of anticompetitive conduct by Align. Here, Align had terminated its agreement with 3Shape after two years, with one year remaining. This termination applied only to TRIOS® scanners used in the United States; orders based upon TRIOS® scanners used elsewhere continued to be accepted and processed by Align. Moreover, Align maintained Invisalign® interoperativity with the scanners of other manufacturers.

Align fulfilled the second Aspen Skiing step by advancing a legitimate business justification argument for its termination of the interoperability agreement with 3Shape. On this score, Align was had concerns about preserving and protecting its patents associated with the Invisalign® system; these included patent litigation against 3Shape. The district court found this to be a "presumptively valid business justification."

The burden then shifted back to the plaintiff dentists and patient consumers to rebut that presumption. Taking into consideration the plaintiffs' expert witness testimony, Align's termination of the agreement "would, on balance, strengthen 3Shape’s equitable defenses in the patent litigation and weaken Align’s position." Such testimony could have been credited by a reasonable juror. There accordingly was a genuine factual dispute that should have precluded summary judgment by the trial court.

Discovery issues. Having determined that a reversal and remand on the refusal to deal issue was warranted, the appellate court gave admonitory guidance to the district court regarding a potential discovery issue.

In his deposition, Align’s CEO, Joseph Hogan, had testified that the decision he made to terminate the interoperability relationship with 3Shape was a "binary decision" made upon advice of counsel. Upon being asked as to the source of that advice, Hogan invoked the attorney-client privilege, which the district court sustained. The appellate court noted that "Align waived the attorney-client privilege by relying on Hogan’s testimony," and apprised the district court that if Align continued to rely on that testimony the court would need to reopen discovery so that the plaintiffs could learn the source of the advice given to Hogan.

The Case is No. 24-1703.

Judge: Per Curiam.

Attorneys: Joseph E. Samuel (Berger Montague, PC) for Simon & Simon, PC. Adam Reich (Paul Hastings, LLP) for Align Technology, Inc.

Companies: Simon & Simon, PC; Align Technology, Inc.

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