3Shape Trios A/S v. Align Technology, Inc.
1:18-cv-01332
D. Del.
Aug 15, 2019

Background

  • 3Shape (scanner maker) sued Align (maker of Invisalign and iTero scanner) under §2 of the Sherman Act alleging monopolization of the aligner market and attempted monopolization of the scanner market. 3Shape’s Trios scanner competed with Align’s iTero Element (introduced 2015).
  • Key factual allegations: Align sued other aligner/scanner rivals, proposed exclusive arrangements to 3Shape (rejected), entered then terminated an Interoperability Agreement allowing Trios to send scans directly to Align (terminated after Align sued 3Shape), designed iTero to send scans directly to Align (sending to rivals required extra steps/fee), and offered discounts on iTero to Trios owners conditioned on meeting Invisalign-order targets.
  • 3Shape claims these acts individually and collectively amounted to an anticompetitive scheme; it does not allege Align’s lawsuits were sham or its patents obtained by fraud.
  • Align moved to dismiss under Rule 12(b)(6); the magistrate judge recommends granting dismissal without prejudice and granting 3Shape leave to amend.
  • Reason for dismissal: the Complaint fails plausibly to allege the required element of anticompetitive conduct—each category of alleged conduct is either protected (Noerr-Pennington), nonactionable unilateral conduct, or not pleaded with facts meeting narrow exceptions (e.g., Aspen Skiing refusal-to-deal, Brooke Group predatory pricing, LePage’s bundled-discount standard).

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether Align’s patent litigation supports §2 liability Litigation was part of a scheme to exclude rivals Litigation is protected by Noerr-Pennington absent sham or Walker Process fraud Dismiss: No plausible sham or fraud alleged; litigation immunized
Whether unaccepted proposals and business solicitations are anticompetitive Repeated requests for exclusive arrangements show exclusionary intent Mere offers (never accepted) caused no competitive harm and are not actionable Dismiss: Unaccepted proposals alone do not plausibly harm competition
Whether terminating interoperability / designing iTero to favor Align is an unlawful refusal to deal Termination and product design foreclosed Trios and harmed competition Firms generally free to choose with whom to deal; must meet narrow Aspen standard showing irrational sacrifice of short‑term profit Dismiss: Complaint fails to allege Aspen‑type economically irrational refusal or preexisting duty to deal
Whether iTero discounts constituted anticompetitive pricing or bundling Steep, conditional discounts foreclosed rivals from scanner market Price discounts are procompetitive unless predatory or meet narrow bundled‑discount rules Dismiss: No facts on below‑cost pricing or foreclosure; plaintiff disclaims LePage’s; predatory/bundling standards not met

Key Cases Cited

  • Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for pleadings)
  • Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility and antitrust pleading guidance)
  • Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004) (limits on duty to deal and Aspen’s narrow scope)
  • Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297 (3d Cir. 2007) (anticompetitive conduct definition in §2 cases)
  • LePage’s Inc. v. 3M, 324 F.3d 141 (3d Cir. 2003) (bundled discount theory recognized in Third Circuit)
  • Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985) (narrow refusal‑to‑deal exception)
  • Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993) (predatory pricing test)
  • Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 (1993) (Noerr‑Pennington and sham litigation doctrine)
  • Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172 (1965) (fraudulently obtained patent exception to immunity)
  • United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001) (anticompetitive effect requirement for exclusionary conduct)
  • United States v. Dentsply, 399 F.3d 181 (3d Cir. 2005) (exclusive dealing and anticompetitive effect analysis)
  • ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254 (3d Cir. 2012) (courts’ instruction on discount and predatory pricing standards)
  • Pac. Bell Tel. Co. v. linkLine Commc’ns, 555 U.S. 438 (2009) (rejecting price‑squeeze theory and emphasizing application of established rules)
  • Brunswick Corp. v. Pueblo Bowl‑O‑Mat, Inc., 429 U.S. 477 (1977) (antitrust plaintiff must show antitrust injury caused by defendant)
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