Ninth Circuit Revives Antitrust Claims Over Align’s Cutoff of 3Shape TRIOS Scans

Edited by Orthotown staff

A federal appeals court has revived two class actions accusing Align Technology of monopolizing the clear aligner market by ending Invisalign’s interoperability with 3Shape’s TRIOS intraoral scanner. The U.S. Court of Appeals for the Ninth Circuit reversed a lower court’s summary judgment for Align in a published opinion issued Oct. 5 and sent the cases back to the U.S. District Court for the Northern District of California.

The ruling allows the claims to proceed toward trial. It does not decide whether Align violated antitrust law.

Align and 3Shape agreed in December 2015 to make TRIOS interoperable with Invisalign, letting dentists submit Invisalign orders directly from the scanner. In December 2017, with a year left on the agreement, Align announced it would no longer accept TRIOS scans in the United States for new Invisalign treatment and retention cases. It continued accepting TRIOS scans in other countries, and its interoperability agreements with 3M and Dentsply Sirona scanners remained in place. According to the opinion, Align controlled about 90% of the U.S. aligner market during the period at issue.

About a month before the cutoff, Align filed six patent actions against 3Shape asserting 26 patents related to intraoral scanning, and the companies later settled. Align argued that it ended interoperability to protect its position in that litigation. U.S. District Judge Vince Chhabria granted summary judgment after concluding that no reasonable jury could reject that the decision rested at least partly on legitimate business reasons.

The panel held that the district court had applied the burden-shifting test for refusal-to-deal claims under section 2 of the Sherman Act incompletely. Plaintiffs presented enough evidence to dispute both whether Align’s patent justification was legitimately procompetitive and whether it was pretextual, the court said, and either ground is sufficient for the claims to go to trial. The court cited internal Align communications, including an executive’s response to rising revenue figures shortly after the cutoff: “Cutting [off] 3shape really worked.” It also pointed to timing, noting that the patent suits came as key Invisalign patents were expiring and after 3Shape had rejected Align’s requests to make TRIOS compatible exclusively with Invisalign. The court acknowledged that the evidence could also reasonably be read to support Align’s stated patent rationale.

The panel further found that Align waived attorney-client privilege by relying at summary judgment on CEO Joseph Hogan’s testimony about the termination decision, a ruling the court said will be relevant to proceedings on remand.

A panel of Judges Sidney R. Thomas, Richard A. Paez, and Eric D. Miller issued the unsigned per curiam opinion. Miller concurred only in the judgment, writing that the court’s opinion significantly expanded refusal-to-deal liability, though he agreed the plaintiffs had raised a genuine dispute over pretext. The consolidated appeals are Simon and Simon, PC v. Align Technology, No. 24-1703, brought on behalf of dental practices that bought aligners and scanners directly from Align, and Snow v. Align Technology, No. 24-1783, brought on behalf of consumers who bought Invisalign.

The panel left it to the district court to decide how to handle the plaintiffs’ broader scheme claims. Those claims also target exclusivity clauses in Align’s agreements with dental practices and dental service organizations, along with its Fusion program, under which practices received iTero scanner discounts for committing to minimum annual Invisalign case volumes.

Sources:
U.S. Court of Appeals for the Ninth Circuit, Simon and Simon, PC v. Align Technology, Inc., Nos. 24-1703 and 24-1783, opinion filed Oct. 5, 2026: cdn.ca9.uscourts.gov/datastore/opinions/2026/10/05/24-1703.pdf