Biolase said it plans to take Judge Andrew Guilford up on that within the 14-day window Guilford set in his June 4 ruling in the U.S. District Court for Central California.
The complaint alleges that Fotona, via a U.S. distribution entity started by former Biolase CEO Jeff Jones and ex-sales executive Keith Bateman, "used false and misleading advertising to get Biolase customers to switch from using Biolase dental lasers to Fotona dental lasers," according to court documents.
"This advertising includes claims that Fotona’s lasers are safer, faster, more precise, and less painful than Biolase’s lasers. Defendants represent that these advertising claims are based on independent scientific articles. But the articles are written by Fotona affiliates and published in a journal established by Fotona," Guilford wrote. "Biolase alleges that the authors of the articles don’t disclose their affiliation with Fotona, but 1 author does disclose his affiliation. Biolase also alleges that defendants made false and misleading oral statements, including that Biolase’s technology is faulty and worthless, and that Biolase’s management is incompetent."
Fotona and the distributorship, Technology4Medicine, countered that the false advertising claims are "non-actionable puffery" or accurately reflect conclusions reached in the scientific literature and should be dismissed. Guilford agreed in part, according to the documents.
"Some of the alleged false advertising statements are non-actionable puffery, and those that are not puffery appear to be accurate restatements of conclusions in scientific journal articles and thus cannot support a false advertising claim," he wrote. "Though plaintiff argued at the hearing that some alleged advertising statements do not fall in either of these two categories because plaintiff argued the advertising inaccurately reports articles’ conclusions, or are not tied to articles at all, the allegations in plaintiff’s complaint did not make this argument clear."
Guilford ruled that Biolase also missed the mark with the defamation claim, according to the documents.
"Biolase doesn’t allege who made these statements, where they made them, when they made them, or to whom they made them. Biolase’s allegations don’t give enough notice about the conduct complained of to enable defendants to defend themselves, and are insufficient to state a claim," Guilford wrote. "The court notes that it also has concerns about whether these statements are defamatory under California law, which requires that alleged statements ‘expressly or impliedly assert a fact that is susceptible to being proved false, and be able reasonably to be interpreted as stating actual facts.’"
Biolase, which said it won a patent infringement case against Fotona in a German court in May, said it doesn’t believe Guilford drew the correct conclusion "since the cited articles are written in part by Fotona staff members and co-inventors, published in a Fotona sponsored journal with clinical results not confirmed by independent research or Biolase in-house testing."
"Biolase has already achieved 1 of the primary objectives of the Orange County proceeding by Fotona and their U.S. distributor, Technology4Medicine, a licensee of only Erbium-Yag Biolase’s IP portfolio, eliminating significant claims which were of concern to Biolase on their website and other materials. Other claims were dismissed in the motion under the category of non-actionable puffery, which further supports Biolase’s position," chairman & CEO Federico Pignatelli said in prepared remarks.
For its part, Fotona said it will "continue to vigorously defend its products, and take action against false or misleading claims."