Nidek and Visx sign settlement; worldwide litigation ended

Nidek and Visx have signed an agreement that effectively ends all global litigation between the two refractive laser manufacturers.

According to Kuntal Joshi, Nidek’s director of global marketing, Nidek will immediately begin withdrawing or retracting the subpoenas it issued to more than 600 Visx excimer laser users last November. The subpoenas requested information relating to the numbers and types of refractive procedures the surgeons performed. Nidek needed the information to build evidence of damages for its patent infringement lawsuit against Visx, said Mr. Joshi.

Mr. Joshi and Jackie Cossman, an investor relations representative for Visx, both indicated that the settlement mainly applied to three lawsuits filed in the United States, although patent litigation suits between the two companies have been filed in Canada, France and Japan as well.

In the first of the three cases, filed in 1998, Visx claimed patent infringement of its refractive excimer laser. The second suit is an antitrust case filed by Nidek against Visx in 1999, alleging Visx violated federal antitrust and state unfair competition laws. In 2000, Visx filed four lawsuits against certain surgeons who were using Nidek’s lasers and consolidated those suits with the others. Nidek assumed the legal costs for those surgeons and voluntarily represented them during the proceedings. The third case, filed by Nidek against Visx in 2001, alleged patent infringement by Visx.

Mr. Joshi said the global settlement involves worldwide cross-licensing of the disputed patents, but would not disclose precise terms of the agreement.

Visx has agreed to pay Nidek $9 million, which “does not constitute an admission of liability by Visx,” said Ms. Cossman. Rather, she said, the company believed the settlement and the related payment would be less than what would have been the cost of defending ongoing litigation.

In November of last year, Nidek came under criticism by the American Society of Cataract and Refractive Surgery (ASCRS), the American Academy of Ophthalmology (AAO) and the Ophthalmic Mutual Insurance Company (OMIC) after it issued subpoenas to the Visx laser users.

Following their issuance, ASCRS retained legal representation on behalf of the subpoenaed surgeons and was set to file a motion to quash the subpoenas in Federal court last December. ASCRS, which was quickly joined by AAO and OMIC, believed the subpoenas were too extensive in scope and complying with them represented an undue burden on surgeons.

After ASCRS became involved, Nidek began postponing the deadline for responding to the subpoenas as both Visx and Nidek began negotiating an alternative way of gathering the data. As a result, ASCRS never filed its motion to quash.

In a joint statement released shortly after the companies announced their settlement, senior executives for the three associations expressed relief that a settlement was reached. The news release noted “where their members are concerned, they would continue to oppose the use of excessively broad, intimidating and inappropriate legal tactics in the future.”

More on this story will be published in the May 1 edition of Ocular Surgery News on page 36.