In 1998, Aspex Eyewear, an eyewear designer that also develops frame technology, was in talks with Altair Eyewear, Inc., another frame designer, about potentially licensing a clip-on technology. Aspex alleges Altair sent the frames to China to make copies and then came out with a very similar clip-on frame. On August 5, 2002, Aspex filed suit for patent infringement.
In a world where companies are in constant litigation with other companies over patents, these situations rarely affect everyday employees. But if you use Vision Service Plan, the largest vision carrier in the country, this litigation affects your employees.
In a June 2010 bulletin to doctors and staff, VSP wrote, "Despite warnings that failure to find an alternative method of resolution could cause VSP to re-evaluate its business relationship with Aspex, Aspex remains in litigation with VSP and its affiliates." Starting August 2010, VSP discontinued in-network coverage for frames manufactured or distributed by Aspex.
Aspex largely makes its case out to be one of injustice. The company maintains it had the first product of its kind, and it was stolen.
To exclude a brand of eyewear from coverage is an unheard of move in the industry.
Optometrists can be "in-" or "out-of-network," but this newfound move raises flags about the ability to exclude companies because of politics.
Those in the eye care community who are on the front lines with employees, helping them make style decisions based on allowances and benefits, are not happy with the change, because the out-of-network title means that the ability to buy Aspex frames is now quite limited for VSP customers.
"I understand the bigger picture, but the patient is suffering," says Barbara Young, office manager and optician-in-training for Dr. Alan Siegel in Port St. Lucie, Florida. The Aspex line is their No. 1 selling line, she says. With out-of-network status, a patient must now submit a claim and pay upfront, and then be reimbursed a smaller amount.
VSP and its two eye frame companies, Altair and Marchon, sell similar products, but some say the quality is not as strong.
"When you look at a brand new frame from both companies, there is no difference. The difference is six months down the road," says Diane Charles, the most recent president of the Opticians Association of America, who also owns an optical dispensary in Seattle.
The difference is small - the clip on Aspex frames is on the top, while the clip on the other frames is on the side.
"The quality is not there [with the other frames]. When you are selling a frame, you're exposing these glasses to a lot, and then someone wears them for at least a year. It's not only aesthetics, but more importantly, if you're in the wind they won't blow off, they won't fall off. If something should move, they won't scratch the lenses, which will ruin the lenses. There is a big difference in the products," says Lisa Cain, manager and optician at Ellicott City Eyecare in Maryland.
When asked for comment on the quality of the clip-on frame it offers, VSP said only that it "strives to deliver our members with an abundance of great choices in eyewear. While Aspex remains an out-of-network frame provider, our members still have access to nearly 450 other in-network frame manufacturers. With this number of frame options, we believe the decision to no longer provide in-network coverage for Aspex has had a minimal impact on our members."
When the changes were rolled out, Cain called her VSP representative to complain about the changes. She says VSP's response was: "Who would want to do business with someone that is suing you?"
Dr. John Warren, an optometrist in Wisconsin, says he got the same response. "But they're not doing business with them. I am, and you [VSP] are just reimbursing them for those services." He feels he and his patients are being used as leverage against Aspex and "while they wouldn't flat out admit that, that is where things are left."
Aspex has filed suit against VSP three times now, and in December of 2010, a California Federal Court ruled that VSP Global and its affiliate companies have the right to refuse to do business with companies that are suing them.
Dr. Richard Hom, an optometrist in San Mateo, Calif., says that this is a simple business issue. He compares it to Wal-Mart or Costco selecting which brands to sell in their stores. "Every major insurance company has its own frame line, and they want their doctors to use their frames and if the doctors don't want to use it, they're out of network," he says.
He also points out that most technologies are not wholly owned by one company; they are commonly reverse-engineered. "Practically everybody would buy innovation rather than create their own." He points to a new technology released by emPower! Eyewear that automatically adjusts the focus using an LCD layer. "That's unique. Will that technology be copied? I'm going to guess so."
There is no federal agency that regulates this sort of thing, and only the courts can rule on patent cases, which causes everyone to sue everyone else. Aspex has filed suit on competing eyewear companies 96 times since 1998, according to PACER, an online electronic public access service that allows users to obtain case and docket information from federal appellate, district and bankruptcy courts. Aspex has been filed suit upon 19 times during that period. It says this is because its magnetic clip product line is popular, and thus copied. VSP would not comment on whether their subsidiaries, Marchon and Altair, had stolen the technology.
Regardless, VSP customers still cannot get Aspex frames with the ease they do Altair frames. And Thierry Ifergan, executive vice president for Aspex, says this isn't right.
"They [VSP] lowered the benefits without lowering the cost [of the plan]. The doctor and the dispenser were showing frames that they thought were best-suited. Now, it's an insurance company that is telling them what can be sold," he says.
Patients and benefits managers are largely unaware of this change.
"I don't know that anything can be done until people say that they don't like the restrictions, and that has to be at the human resources level," Charles says. "My patients are aware because I let them know. Do most patients know? No. Optometrists and opticians are choosing not to carry Aspex rather than not showing them a particular line."
Says Ifergan: "We're just asking for them to stop infringing upon our product. They're flexing their big muscle to force us to stop our patent infringement lawsuits."
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