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Patent Activity Confirms Market

Photonics Spectra
May 1999
Robert C. Pini

Two companies that make excimer laser systems for surgical vision correction, Visx Inc. of Santa Clara and Nidek Inc., have aggressively drawn battle lines in a dispute over patent and trade claims. Nidek fired the latest salvo, filing a complaint in California District Court alleging that Visx engaged in anti-competitive and monopolistic activities in marketing its systems. Besides relief from the alleged practices, the complaint seeks treble damages, and punitive and exemplary damages.

In February, Visx filed a complaint with the US International Trade Commission to prevent Nidek, whose parent company, Nidek Co. Ltd., is headquartered in Gamagori, Japan, from importing and selling its laser surgery systems.

Different technologies?

The complaint alleges patent infringements. Visx also filed a patent infringement suit against Nidek in December, after Nidek's laser system became the fourth to receive clearance for clinical use from the US Food and Drug Administration.

"It's unlikely they can prevent us from bringing the equipment in," said David Yeh, director of sales for Nidek Inc. He dismissed the complaint as nothing more than a "legal maneuver" and pointed to a similar suit filed in the United Kingdom in which Visx charged patent infringement. The British High Court ruled last October in Nidek's favor. Meanwhile, Nidek continues to promote sales of its $500,000 systems in the US.

"As far as we're concerned, we don't infringe on their patents. We've proven it," Yeh said. "Our technology is very different. We're a slit-scanning laser, and they're a broad-beam laser."

Lola Wood, Visx director of investor relations, predicted US courts would uphold the company's patents, noting that American law recognizes method patents and not just apparatus patents. "We're not going to give [our technology] away. We also have suits against [Nidek] in Canada and France. We're waiting for them to come to trial," she said.

Yeh said the issue boils down to a marketing difference between the companies. Visx sells its excimer lasers to physicians and also charges a fee of $260 per procedure, while Nidek offers its system without the per-procedure fee. "We don't believe in charging users a fee," Yeh said. "Visx and Summit continue to do that. They are trying to keep us from selling the equipment in the US."

The International Trade Commission has set a 12-month target date for review of the case, with a decision expected by March 1, 2000.

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