Uber Technologies Inc. Chief Executive Officer Travis Kalanick calls driverless cars an “existential” necessity for his company. If he’s right, Uber can’t afford to lose in its court fight with rival Waymo.
The two titans are wrangling in San Francisco federal court over allegations that Uber ripped off trade secrets from Waymo’s driverless project. On Wednesday, a judge will weigh the Alphabet Inc. unit’s request to freeze Uber’s efforts to develop a fully autonomous car until a jury issues a verdict on the case.
The companies are vying to be the first to develop a complete system for piloting vehicles that doesn’t require driver oversight, a business both believe may be worth hundreds of billions or even trillions of dollars a year. If the court stalls Uber’s work until the lawsuit is resolved, it could quickly fall behind Waymo and other rivals, including General Motors Co.’s Cruise Automation.
Alphabet says Uber’s driverless car project is based on critical trade secrets stolen by an engineer, Anthony Levandowski, who it claims was recruited from Waymo last year. Waymo seemed to gain an edge when U.S. District Judge William Alsup said at an April 5 hearing that Uber probably wouldn’t receive “ a get-out-of-jail-free card.” But last week, Uber announced that it had demoted Levandowski, cordoning him off from the development of the key technology in the case.
So Wednesday, Alsup will consider whether there’s a need to shut Uber’s program until the trial, now set for October, or give Uber a nod that it has done enough to insulate the program from any potential trade secret violations.
“The worst-case scenario for Uber is that the judge says, ‘There’s no way you can, in my view, given all the facts I’ve seen, move forward with this autonomous-vehicle project between now and trial without misusing this information that has already contaminated what you’re engaged in,’” said Jim Pooley, a Silicon Valley intellectual property lawyer who isn’t involved in the case.
The best-case scenario would be that Alsup is convinced “there’s been a strong effort to voluntarily quarantine Mr. Levandowski” and the Waymo information hasn’t been used by Uber, Pooley said.
Last week, Waymo began the inaugural public tests of its technology in Phoenix. The company has collected almost 3 million miles in road tests to date, but only signed a deal with one carmaker despite efforts to partner more broadly. Uber, while starting its research initiative later, has started self-driving trials with passengers in three cities, including Phoenix.
Both companies face a growing list of rivals working to build driverless cars: California regulators doled out test permits for 30 companies this year, including some with roboticists that left Waymo and Uber.
Waymo alleged in its February complaint that Levandowski took 14,000 confidential files before he left in 2016 to start his own company, which was acquired by Uber for $680 million. Waymo has argued that Uber has incorporated some information Levandowski took into its designs and a preliminary injunction is the only way to prevent further damage. Uber says it didn’t steal Waymo’s trade secrets, and its technology is unique and developed without significant input from Levandowski.
Levandowski isn’t a defendant in the case.
Alsup’s job at this stage of the litigation, with allegations of massive intellectual property theft, is to act as an “after-the-fact risk manager” and to determine whether Uber, even indirectly, relied on information taken from Waymo to make progress on designing its lidar, a union of light and radar, or on driverless technology more broadly, Pooley said.
“It’s a challenge for judges at the preliminary injunction stage to suss this out,” he said.
Chase a ‘ghost’
Uber lawyer Arturo Gonzalez has said the files Waymo says Levandowski stole never reached Uber computers or servers, and that examinations by forensics experts and attorneys of computers belonging to 131 former Google employees now at Uber have so far turned up one email and one two-page attachment that might be a Waymo trade secret. He said Waymo is sending Uber to chase a “ghost” and argued the purpose of the injunction is “to try to stop us from participating in a market.”
Google’s role as the plaintiff is a rare one for an intellectual-property case. More often it’s the one accused of misusing others’ developments. Alsup presided over a six-year fight waged by Oracle Corp., which sued Google, saying the search giant should have gotten a license to use its Java program to develop the Android mobile operating system.
Self-driving cars are an obsession of the founders of Google, one in which they’ve invested billions of dollars over almost a decade. The project was one of the first to emerge from Google’s research lab intact and Waymo is now a test of whether Alphabet can create profitable businesses outside of online advertising.
Waymo notes in its filings how important the lawsuit is for its future, saying “this is an exceptional case. It calls for exceptional relief.”
The case is Waymo LLC v. Uber Technologies Inc., 17-cv-00939, U.S. District Court, Northern District of California (San Francisco).