SAN FRANCISCO (CN) – A federal judge signaled Wednesday that he could bar Uber from using some of Google-spinoff Waymo’s driverless car technology it allegedly swiped, but would stop short of forbidding it from using all of the technology Waymo claims.
Appearing poised at a three-hour hearing on Waymo’s motion for a preliminary injunction to prohibit Uber from using some of the more than 100 trade secrets Waymo claims Uber stole to build a competing self-driving car, U.S. District Judge William Alsup said there isn’t yet enough evidence to grant a preliminary injunction.
The judge suggested he would allow Waymo additional discovery, and reevaluate in six weeks whether further relief is appropriate.
Referring to Anthony Levandowski, the former Waymo manager at the center of the case, Alsup said, “I’m listening for proof that would show that Uber was aware that he had downloaded the information. That would be pretty damning. What do we do where there’s an innocent explanation and a guilty explanation, where nothing has been proven up yet – all that’s been proven is he downloaded 14,000 documents?”
Waymo claims Levandowski downloaded thousands of confidential files from its server before he resigned in January 2016, using them to set up a competing company called Otto that same month. Some of the files are related to Waymo’s highly secret LiDAR system – a laser-based scanning and mapping technology its driverless cars use to “see” their surroundings.
In August 2016 – just three months after Otto launched publicly – Uber acquired the company for $680 million and tapped Levandowski to lead its driverless car program. Waymo claims Levandowski met with Uber’s senior executives days before he resigned, and that Uber knew it would be illegally acquiring Waymo’s technology but purchased the company anyway to fast-track its floundering efforts to build an effective LiDAR system.
Waymo sued Uber and Otto this past February over the alleged theft but did not name Levandowski as a defendant. Two weeks later, it moved to bar Uber from using its technology, which Uber said in a court filing “would impede Uber’s efforts to remain a viable business.”
Levandowski has said he could be criminally prosecuted over Waymo’s allegations, invoking the Fifth Amendment to avoid testifying at a deposition. Following his lead, Uber has refused to produce 3,500 documents listed on a privilege log.
At Wednesday’s hearing, Waymo attorney Charles Verhoeven drilled down on Levandowski and Uber’s refusal to hand over information, asking Alsup to interpret the refusal as an indication that they used Waymo’s trade secrets to develop a LiDAR system for Uber.
If Alsup accepts Verhoeven’s interpretation that withholding documentation implies guilt, known as an adverse inference, Waymo’s case for a preliminary injunction would be boosted.
To bolster his request, Verhoeven said the information on the privilege log that is accessible shows that Uber and Levandowski were negotiating as early as October 2015 – while Levandowski was still at Waymo – to have Levandowski build Uber a LiDAR system based on Waymo’s technology. According to Verhoeven, they planned for Levandowski to form a sham company called NewCo that Uber would then acquire.
“Those documents would show that they knew about the 14,000 documents,” Verhoeven said. “We have been blocked from obtaining evidence. If your honor only rules on the injunction with just the evidence we’ve discovered, then they’ll get away with it.”
Uber attorney Arturo Gonzalez told the judge that a preliminary injunction can’t be granted based on adverse inferences alone, particularly one enjoining the use of trade secrets that Uber claims are actually public.
The concept behind Uber’s LiDAR circuit board design, for example, is disclosed in a LiDAR patent held by Velodyne, one of the companies that supplies Uber’s LiDAR systems, according to a court filing by Uber. Another of Waymo’s purported trade secrets is based on scientific principles and so cannot be claimed as a trade secret, Uber argues.
“They make a big issue of this privilege log and want you to think we’re hiding stuff somehow,” Gonzalez said. “We’re not hiding anything, your honor.”
Last Thursday, Levandowski recused himself from working on Uber’s LiDAR systems. That same day, Uber attorneys asked Alsup to send part of the case to arbitration.
Uber has said in a brief that it would not oppose an order taking Levandowski off LiDAR development pending an October trial, since he had invoked the Fifth Amendment.
Waymo, however, wants a full preliminary injunction, arguing that Uber will gain an unfair market advantage if it is allowed to use Waymo’s technology until then.
Regardless of both parties’ arguments, Alsup suggested he may not grant an adverse inference because Levandowski isn’t a defendant in the case, noting that Uber may not have realized until after it purchased Otto that Levandowski had taken Waymo’s files. He was quick to clarify that the probability of that was “small.”
“You have one of strongest records I’ve ever seen in a long time of somebody doing something that bad,” Alsup told Verhoeven. But he then reiterated that the lack of evidence – due to Levandowski and Uber’s refusal to produce information – that Uber was in on the theft, or that Waymo’s trade secrets had made it into Uber’s LiDAR system, was “a problem.”
“The jury will decide the case, unless I send it to arbitration,” Alsup concluded. “That’s the American way.”
Verhoeven is with Quinn Emanuel Urquhart & Sullivan and Gonzalez is with Morrison & Foerster, both in San Francisco.
Neither Waymo nor Uber responded to a request for comment.