-Gamagori, JAPAN, December 2, 2002-

NIDEK Co. Ltd. took the proactive step of explaining its position and company ideology in the patent litigation actions it is going through. The company made an announcement saying that it would like to clarify a few issues that have come to its attention over the last few weeks, regarding the issuing of subpoenas to VISX excimer laser users and its patent litigation against VISX.

NIDEK and VISX are currently involved in several complex lawsuits involving patent rights. VISX has asserted patents against NIDEK in one suit, and in another NIDEK has asserted its patents against VISX. In both cases the plaintiff (patent owner) is required to prove the damages claimed assuming that patent infringement is first determined to exist.

"There is ample precedent for this current action of sending Subpoenas to VISX laser users as a means of obtaining information admissible in court to prove alleged damages", said the company.

In a prior case, still pending where VISX sued NIDEK for patent infringement, VISX subpoenaed virtually ALL NIDEK users seeking procedure counts and procedure information to be used for damages calculation. NIDEK took the responsibility of representing these NIDEK doctors and paid for their legal costs in responding to the subpoenas.

VISX also took the unprecedented step of actually suing a number of NIDEK Physicians for patent infringement. NIDEK is defending and representing those doctors at NIDEK's own expense.

The current subpoenas are for the NIDEK patent infringement case against VISX. NIDEK determined that VISX was infringing three of NIDEK's patents, dealing with system calibration, blend/ transition zones and mixed astigmatism. NIDEK has the burden of proving its damages for each of the three patents. NIDEK sought to obtain information dealing with the numbers and types of procedures directly from VISX. VISX however responded by indicating that it didn't have specific procedure information. NIDEK was faced with no information from VISX and left no choice but to pursue the information-gathering task directly from VISX Excimer laser users. VISX by its actions in the pending litigation thus forced NIDEK to get damages related information from VISX users directly even though the damages are claimed only against VISX.

In contrast to NIDEK's defending it's users when subpoenaed by VISX, VISX has now stated that each doctor should obtain legal advice from their own attorneys. VISX thus has not provided the necessary information to NIDEK and has left the doctors to defend at their own expense.

NIDEK was not pleased at having to subpoena VISX doctors, but was left with no other reasonable alternative. NIDEK counsel is certainly open to work with doctors and alleviate burden but the information is essential to NIDEK's damage claims against VISX.

NIDEK, unlike VISX, will not sue doctors and it will not collect per-procedure fees from doctors. VISX's suit against NIDEK is aimed squarely at preserving the VISX income model, which is predicated on collecting user fees. VISX's tactics thus included suing doctors as a scare tactic. NIDEK's case against VISX is based on VISX illegally using valuable NIDEK technology in the Star series systems for which NIDEK is entitled to damages from VISX. These subpoenas are directed to collecting information as to the extent of infringing use of that technology so that NIDEK can be awarded its damages from VISX.

For more information or further clarification, please call us at: 1800.223.9044.

Contact: Mr. Kan Ohtsuki
Title: Senior Manager, Legal and Regulatory Affairs Division
Phone: +81 533 67-8828
Fax: +81 533 67-6628
Email: kan_ohtsuki@nidek.co.jp

Contact:
Ms. Hiromi Kitagawa
Public Relations, Planning Dept.
Phone: +81-533-67-6753
Fax: +81-533-67-6610
Email: info@nidek.co.jp