Judge won’t enjoin Alcon product sales in J&J code theft case

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(Reuters) – A federal judge has declined to block eyecare company Alcon from selling cataract surgery products in a lawsuit brought by a Johnson & Johnson subsidiary accusing Alcon of stealing computer code used in laser eye surgery on a “grand and shocking scale.”

The logo of Alcon is seen at the company’s French headquarters in Rueil-Malmaison, France, August 17, 2019. REUTERS/Charles Platiau

U.S. District Judge Colm Connolly in Delaware denied J&J unit AMO Development LLC’s motion for a preliminary injunction at a hearing last Thursday, according to court records.

J&J, which is represented by lawyers including Michael Morin of Latham & Watkins, said in a statement that Connolly found J&J had demonstrated a likelihood of success on its copyright infringement claims, and that potential damages could be significant. However, the judge declined to enter an injunction because he found that any harm could be remedied by money damages, according to J&J.

Alcon, which is represented by Jeanne Heffernan of Kirkland & Ellis, said, “For the benefit of customers and patients around the world, and consistent with (the preliminary injunction) ruling, Alcon will continue to sell, install and service LenSx Laser Systems.” The company had said in February that J&J’s motion for an injunction was without merit.

AMO, a company acquired by J&J in 2017, sued Alcon in June 2020, accusing it of infringing multiple patents on laser eye surgery technology. In October, it filed an amended complaint adding copyright claims, alleging that Alcon had stolen copyrighted computer code.

The code in question is used in J&J products primarily for performing LASIK vision correction surgery, according to court documents. J&J alleges that Alcon copied it for use in its LenSx Laser System, a cataract surgery system.

The LenSx system was developed by a company, LenSx, that was acquired by Alcon in 2010. J&J also makes a competing cataract surgery product, the Catalys Precision Laser System.

In its preliminary injunction motion, J&J said its copyright claims had initially been based on “suspicious similarities” in the two companies’ computer code.

“But J&J Vision’s subsequent inspection of Alcon’s confidential source code has revealed theft and deception on a grand and shocking scale – of the type usually found in paperback novels and Hollywood movies, not real-life disputes between publicly traded companies,” it wrote.

Alcon, J&J said, “stole J&J Vision’s software wholesale,” copying more than 26,000 lines of computer code and changing dates and comments associated with it to make it appear original.

Despite the attempted coverup, J&J claimed, the theft was “so pervasive that Alcon missed some of it, leaving smoking guns behind.” Those included comments dated from before LenSx’s founding and typos identical to those in J&J’s code, it said.

J&J said that multiple developers from AMO had gone on to work at LenSx.

The case is AMO Development LLC v. Alcon LenSx Inc et al, U.S. District Court, District of Delaware, No. 20-cv-00842.

For J&J: Jack Blumenfeld of Morris, Nichols, Arsht & Tunnell; and Michael Morin of Latham & Watkins

For Alcon: John Shaw of Shaw Keller; and Jeanne Heffernan of Kirkland & Ellis

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Elena Johaness

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