Opternative sues Warby Parker for breach of mobile eye exam NDA

By Jonah Comstock
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Opternative, a Chicago-based digital health company that offers an online refractive eye exam service to help consumers get prescriptions for glasses or contacts, is suing online glasses retailer Warby Parker in New York District Court. The suit alleges that Warby Parker's Prescription Check offering (launched in May) was based on proprietary information and technology obtained from Opternative under a nondisclosure agreement. TechCrunch broke the news.

"Starting in 2013, Warby Parker reached out to us to explore if the two companies could begin discussions which led to a non-disclosure agreement as a result of that," Opternative Head of US Government Affairs Pete Horkan told MobiHealthNews. "After that there were several additional nondisclosure agreements that not only asked us to engage in further NDAs so that we would share proprietary information. But that was intended only for consideration internally, a potential business relationship or a transaction between parties. During that period, Warby Parker sought extremely detailed information about our operations, while continually reassuring us that Warby Parker was not developing its own system using the proprietary information that we were disclosing at the time."

The suit alleges several charges against Warby Parker including breach of contract, misappropriation of trade secrets, unfair competition, and unjust enrichment. It also alleges that Warby Parker filed a patent based on an idea expressed to them by Opternative Chief Science Officer Dr. Steven Lee over a teleconference, but didn't include Lee as an inventor on the patent. The filing suggests a narrative in which Opternative was wary of such an appropriation — after comments made to the Wall Street Journal by Warby Parker — and had Warby Parker sign three distinct NDAs in order to protect itself.

"It’s pretty easy to see if you look at the terms of the nondisclosure agreement versus what was delivered that Warby Parker knowingly violated the NDA and used information that was derived both from those conversations and the correspondence they had with my company, to launch a competing offering," Horkan said.

Warby Parker issued a statement denying the charges and laying out its own version of events.

"The preposterous claims made by Opternative do not accurately reflect reality, and we’re prepared to take all necessary steps to defeat them," the company wrote. "This is an unfortunate example of a company choosing to address competition with litigation instead of innovation."

According to Warby Parker, the company did explore a partnership with Opternative, but found its technology insufficient. It then developed its own version of the technology independently.

"We started Warby Parker to radically transform the optical industry, and we’ve been interested in the emerging field of online vision tests for quite some time," the statement continues. "Our goal is to offer the safest, most accurate, and most user-friendly telemedicine product, regardless of whether that product is built internally or externally. Over the years, we’ve looked at many potential solutions, including Opternative’s test. We gave Opternative the opportunity to demonstrate that its product could live up to the high standards of quality and service that customers have come to expect from Warby Parker. Ultimately, they failed to meet those standards, and we determined that the product and user experience were unfit for our customers. Opternative is now trying to correct those failures through meritless litigation. 

"We recently launched a homegrown online vision test called Prescription Check, which leverages our patented technology to provide an intuitive user experience. We independently developed Prescription Check and did not have access to or use any of Opternative’s technical information that could have benefitted the development of our app. At Warby Parker, we’ve built our business and reputation on innovation, best-in class service, and fair competition—and we’re looking forward to exposing that Opternative’s claims are not supported by the facts."

Although both are mobile- and web-enabled eye exams, there are differences between Warby Parker and Opternatives' offerings. One is the mechanism by which the app ensures the user is the appropriate distance away from the screen: Opternative requests the users' shoe size then tells them to move a certain number of steps, while Warby Parker uses the phone's camera to set the distance. This is the subject of the contested patent. 

Opternative is currently the plaintiff in another case, which deals with whether remote eye exams, or ocular telemedicine as the field has been more recently named, will be allowed at all in the state of South Carolina. That case is nearing its end, according to a spokesperson for the Institute for Justice, an organization assisting Opternative with the South Carolina case. He said the case has been taken under advisement, and there could be a ruling as soon as next month.