Waymo, Uber in high-stakes court battle

on Feb4

SAN FRANCISCO — Nearly a year after Waymo filed its lawsuit against Uber, the self-driving competitors are to have their day in court, with the trial scheduled to start this week.

But beyond whether the spinoff of Google’s parent company or the ride-hailing giant prevails, the trial is expected to have a huge impact on the auto industry.

“This trial is a really big deal,” said Bryant Walker Smith, a University of South Carolina law professor who specializes in self-driving vehicles. “Not as much because of the legal issue or the ultimate impact for the companies, but for showing how much is at stake in development of automated vehicles for companies that are doing it.”

Because of the trial’s high profile, it likely will help define the autonomous vehicle industry, Walker Smith said, comparing it to the impact of Apple vs. Nokia on the smartphone industry and Ford vs. Dodge on the early auto industry.

In Waymo’s suit filed Feb. 23, 2017, the company accused Uber of stealing its designs for laser sensors dedicated to autonomous driving.

Though the suit has narrowed, centering on whether Uber used eight trade secrets outlined by Waymo after claims of patent infringement and damages were dismissed, it has raised questions — and eyebrows — over how technology is developed and who stands to benefit.

Levandowski: Move questioned

The Uber-Waymo saga began when an errant email from a supplier detailing Uber’s lidar designs landed in Waymo’s inbox. Suddenly, engineer Anthony Levandowski’s quick move from Google’s self-driving vehicle program (which later became Waymo) to his own self-driving startup to Uber after a reported $680 million acquisition, turned from soaring ambition to legally suspicious.



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“Waymo has uncovered evidence that Anthony Levandowski, a former manager in Waymo’s self-driving car project — now leading the same effort for Uber — downloaded more than 14,000 highly confidential and proprietary files shortly before his resignation,” the lawsuit reads. “Mr. Levandowski took extraordinary efforts to raid Waymo’s design server and then conceal his activities.”

Kalanick: Ties to Levandowski

Further investigations showed a close relationship between Levandowski and former Uber CEO Travis Kalanick before Levandowski joined the company, and a competitive leadership strategy that placed “safety third.”

But Levandowski is not named as a defendant in the suit, nor will he testify at the trial, choosing to invoke his Fifth Amendment right against self-incrimination. He faces a separate criminal probe from federal prosecutors.

“He’s the elephant in the room,” said Dorothy Glancy, a professor at Santa Clara University Law School who specializes in transportation and privacy law. “The jury has to pretend he’s not in the room, but he’ll be all over the room.”

Additionally, because much of the technology at issue is still in development and subject to trade-secret protections, much of the relevant information likely will be unavailable to the public — an issue that could profoundly affect self-driving vehicle law, Glancy said.

“How does the legal system make decisions, especially about autonomous vehicles, when so much of it is trade-secret information that isn’t available to policymakers?” she said. “How do we deal with this when the public and the press know only part of the story?”

The desire to keep trade secrets secret could hamper Waymo’s ability to prove its case, though it said it will rely on inspections of Uber’s devices, correspondence with suppliers and testimony from former employees.

“That may be somewhat difficult,” Glancy said. “There’s going to be big gaps in Waymo’s ability to show Uber used trade secrets.”

Lasting outcomes

In addition to Levandowski’s actions, pretrial proceedings have dug up details of Uber’s shady business dealings, including a letter from former employee Richard Jacobs describing unauthorized surveillance practices to monitor competitors and the use of messaging platforms that immediately erase correspondence. That sparked headlines and added to the growing public relations nightmare that Kalanick’s Uber had become.

Though Judge William Alsup of U.S. District Court in San Francisco, who is presiding over the case, ruled Waymo cannot use the letter or the company’s projections of financial gains from self-driving technology to make its case, the information further tarnishes a reputation Uber’s new leadership has been working to improve.

Now, Uber must prove that its technology was developed independently, and show that knowledge Waymo claims is secret can be happened upon by any company working on autonomous vehicles to a jury with little or no background in the technology.

If the jury decides in favor of Waymo, Uber’s self-driving car development could be seriously hindered, tainting current and potential partnerships with automakers, Walker Smith said. But if Uber prevails, Uber would receive a public vindication of its autonomous vehicle efforts.

Regardless of the outcome, the argument over information ownership could continue to define self-driving car development in the long term, Walker Smith added, as larger companies can use intellectual property laws to keep new competitors from joining, or those lagging behind can lean on patents as a source of revenue.

“Every technology story has these birthing pains that usually involve people with big egos,” Walker Smith said. “We’re entering a new phase where there start to be clear corporate winners and losers.”

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