Waymo, Uber clash ahead of trial

Defin­ing trade se­cret at crux of suit over theft of robot-car tech­nol­ogy

San Francisco Chronicle Late Edition - - BUSINESSREPORT - By Carolyn Said

What is a trade se­cret? That seem­ingly sim­ple ques­tion dom­i­nated dis­cus­sions Tues­day dur­ing a fed­eral court hear­ing on Waymo vs. Uber, one of the last pre­trial ses­sions be­fore the case, which could shape the fu­ture of au­ton­o­mous ve­hi­cles, heads to a jury on Dec 4.

Waymo, the self-driv­ing off­shoot of Google par­ent Al­pha­bet, sued ride-hail­ing gi­ant Uber in Fe­bru­ary. It al­leges that Uber swiped its trade se­crets for laser-pow­ered li­dar sen­sors, a key piece of self­driv­ing tech­nol­ogy that help robot cars “see” the world around them.

U.S. Dis­trict Judge Wil­liam Al­sup fo­cused Tues­day’s hear­ing on what in­struc­tions the 10-per­son jury should hear to guide them in un­der­stand­ing the law, pres­sur­ing lawyers on both sides to cite prece­dents.

The case hinges on An­thony Le­vandowski, a for­mer star en­gi­neer at Waymo who left the com­pany al­most two years ago, started a self-driv­ing truck startup called Otto, and soon sold it to Uber for north of $680 mil­lion. Waymo claims Le­vandowski il­lic­itly down­loaded 14,000 files be­fore he left and brought them to Uber. Uber, which fired Le­vandowski for re­fus­ing to co­op­er­ate with its in­ves­ti­ga­tion, de­nies that it ended up with any of that al­legedly pur­loined tech­nol­ogy.

While Al­sup pre­vi­ously has taken it as a given that Le­vandowski in­deed stole tech­nol­ogy, on Tues­day he pointed to pre­vi­ous cases where courts

ruled that en­gi­neers had a right to pur­sue their liveli­hood even when that in­volved com­pet­ing with for­mer em­ploy­ers.

“I’m sym­pa­thetic to the en­gi­neer who’s try­ing to make a liv­ing and pay the rent as op­posed to the big com­pany that’s try­ing to (sew) up ev­ery­thing,” he said — some­what iron­i­cally, given that Le­vandowski reaped a $120 mil­lion bonus at Waymo be­fore his big pay­day at Uber.

”On the other hand, a big com­pany like Uber should not be al­lowed to steal some­one else’s crown jew­els, pe­riod,” the judge said.

Al­sup re­turned re­peat­edly to the ques­tion of what obli­ga­tions for­mer em­ploy­ees and their new em­ploy­ers have to en­sure that trade se­crets don’t get passed along.

“Is an en­gi­neer sup­posed to get a frontal lo­bot­omy be­fore they go on to the next job?” Al­sup asked. “The an­swer’s got to be no, but say they know the recipe for Co­caCola. They have to for­get that be­fore their next job.”

De­spite Le­vandowski’s cen­tral role in the case, he’s not a party to the law­suit — his em­ploy­ment con­tract with Waymo stip­u­lates that dis­putes must be han­dled by ar­bi­tra­tion. He’s re­fused to give tes­ti­mony, cit­ing his con­sti­tu­tional rights against self-in­crim­i­na­tion.

Al­sup said he thinks ju­rors have a le­git­i­mate in­ter­est in “ac­tu­ally see­ing (Le­vandowski) in the flesh on the stand even if all he does is in­voke the Fifth Amend­ment.” He may limit the ques­tion­ing, on the premise that it will quickly grow te­dious if Le­vandowski re­fuses to an­swer any­thing be­yond his name and ad­dress.

The judge ear­lier this month lim­ited Waymo’s case, re­ject­ing the da­m­ages ex­pert it iden­ti­fied. Waymo wanted to peg its al­leged da­m­ages at $1.9 bil­lion, ac­cord­ing to court fil­ings. Lawyers for Waymo and Uber squab­bled on Tues­day over whether the judge or the jury should de­ter­mine the da­m­ages.

San­ti­ago Me­jia / The Chron­i­cle 2016

En­gi­neer An­thony Le­vandowski is at the cen­ter of claims by Waymo that he gave trade se­crets to Uber.

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