{"id":1218,"date":"2017-05-16T16:47:01","date_gmt":"2017-05-16T20:47:01","guid":{"rendered":"https:\/\/abovethelaw.com\/?p=464142"},"modified":"2017-05-16T16:47:01","modified_gmt":"2017-05-16T20:47:01","slug":"self-driving-to-criminal-charges","status":"publish","type":"post","link":"https:\/\/abovethelaw.com\/legal-innovation-center\/2017\/05\/16\/self-driving-to-criminal-charges\/","title":{"rendered":"Self-Driving… To Criminal Charges?"},"content":{"rendered":"
\"Google's<\/a>

Google’s driverless car (by Grendelkhan via Wikimedia)<\/p><\/div>\n

Ed. note<\/u>: Gaston Kroub<\/span>, who has been writing about differences between Biglaw and boutique life in his “Beyond Biglaw” column, will be shifting his focus to intellectual property law, the area in which he practices. But he might pop back into the law firm management space from time to time, as the spirit moves him.<\/em><\/p>\n

At any given time, certain IP cases will garner broader media attention. Whether they involve ubiquitous products (e.g., Apple-Samsung), big damages numbers (e.g. Carnegie Mellon v. Marvell), or famous brands (e.g., Aquazzura v. Ivanka Trump), certain disputes catapult themselves into the public consciousness. There are benefits to the IP community of clients and IP lawyers that result. Each time one of these cases crosses over from being of interest to the IP community to capturing the attention of the public at large, it helps raise the profile of IP as a critical aspect of today\u2019s global economy. Furthermore, the media attention helps educate the public on IP law, even if it is at a basic level. For IP professionals, these mega-cases often involve interesting issues, and because of the high stakes involved, these cases often lead to rounds of appeals and the making of new law — thereby leaving an impact that often outlives their time in the public consciousness.<\/p>\n

Perhaps the most interesting IP case of the moment is playing out in San Francisco, in the courtroom of Judge William Alsup, a well-respected jurist in the Northern District of California. The case has it all. Cutting-edge technology at issue? Check, as the case involves self-driving technology, which when adopted will affect us all. Top legal teams? Also check, with Quinn Emanuel, Morrison & Foerster, and Boies Schiller on the docket sheet. Juicy facts? Sure, with allegations of trade secret theft levied by Waymo (Google\u2019s self-driving car project) against Uber, the company that people love, or love to hate, in seemingly equal measure. While the case is progressing rapidly, it may end up having a lot to tell us about the limits of IP law, or at least how certain issues in IP cases may have broader ramifications than just remedies like damages and injunctions.<\/p>\n

The background story of the case has been addressed in other places<\/a>, and there is no doubt that the case has already caught the public\u2019s attention. The figure at the center of the sordid saga is a former Google engineer, Anthony Levandowski<\/a>, a recognized pioneer in self-driving technology, and former technical lead of Google\u2019s efforts in that area. In early 2016, he left Google to form his own startup, Otto, which was quickly snapped up for $680 million by Uber — one of Google\u2019s leading competitors in the race to commercialize self-driving cars. The problem? Apparently Levandowski did not leave Google empty-handed, allegedly taking with him thousands of highly confidential and mission-critical technical documents. While Uber may have benefited from the contents of those documents, its purchase of Levandowski\u2019s startup has also embroiled the company in what is quickly turning into a trade secret misappropriation case for the ages. According to Waymo, Uber was able to get a self-driving car on the road in nine months because of Levandowski\u2019s theft of trade secrets, erasing whatever head start Waymo had developed over seven years of prior efforts.<\/p>\n

A telltale sign that this case is of major importance is the fact that it has been pending only for a few months — and there is already a Federal Circuit appeal on file. Perhaps the biggest news came down late last week, when Judge Alsup entered a string of orders with major ramifications for the combatants in this high-stakes battle. First, he ruled that Uber could not be a beneficiary of arbitration clauses in Levandowski\u2019s employment agreements with Waymo. (A separate set of arbitration proceedings between Waymo and Levandowski for breach of those agreements are pending.) In that order, Judge Alsup found that the equities demanded that Waymo\u2019s case against Uber could continue in in his courtroom, noting that \u201cLevandowski\u2019s assertion of his Fifth Amendment privilege has obstructed\u201d discovery in the case and hampered the construction of \u201ca complete narrative as to the fate of Waymo\u2019s purloined files.\u201d In line with that finding, Judge Alsup also decided Waymo\u2019s motion for provisional relief on its trade secret misappropriation claim, which (even though it was issued under seal) apparently was at least granted in part based on a detailed evidentiary record. Finally, and unusually for an IP case, Judge Alsup referred to the U.S. Attorney his order on Waymo\u2019s motion, \u201cfor investigation of possible theft of trade secrets\u201d — in other words, for investigation of possible criminal activity and potential prosecution of individuals associated with any such activity.<\/p>\n

This series of bombshell orders potentially portends serious consequences for Uber and Levandowski. For Uber, any injunctive relief granted to Waymo could derail its significant investment in a self-driving car program, and set back the company\u2019s efforts to reduce its cost structure going forward. Considering the generally negative press the company has been rocked with over the past few months, another finding of wrongdoing is something that the company will surely want to avoid. For Levandowski, the introduction of potential criminal charges, if the U.S. Attorney decides to act on Judge Alsup\u2019s referral, is as serious as it gets. At the same time, it would be a mistake to rush to judgment, and ascribe wrongdoing to either Uber or Levandowski at this stage. While it is clear that the case is on a fast track, with a trial date set for early October, the number of twists and turns at even these early stages suggests that much more is to come.<\/p>\n

Ultimately, the introduction of potential criminal charges in any IP case, no matter how valuable from a monetary perspective, raises the stakes to a level that even the most high-profile IP case would be likely to reach otherwise. There is no doubt, however, that temptation exists for both employees and companies to take short cuts, particularly in fast-moving and valuable areas of technology. In the current environment, innovative companies will have to redouble their efforts to protect their trade secrets, and move quickly to patent inventions on technologies they can afford to disclose. At the same time, innovative companies must be realistic about the limits of civil litigation to achieve their objectives. But for the participants in this case, the time for battle is now. And many will be watching to see which side drives off to victory.<\/p>\n

Please feel free to send comments or questions to me at\u00a0gkroub@kskiplaw.com<\/a>\u00a0or via Twitter:\u00a0@gkroub<\/a>. Any topic suggestions or thoughts are most welcome.<\/p>\n

\n

Gaston Kroub lives in Brooklyn and is a founding partner of\u00a0Kroub, Silbersher & Kolmykov PLLC<\/a>, an intellectual property litigation boutique. The firm\u2019s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at\u00a0gkroub@kskiplaw.com<\/a>\u00a0or follow him on Twitter:\u00a0@gkroub<\/a>.<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

This legal battle between Google and Uber has it all: cutting-edge technology, juicy facts, and top-tier legal talent.<\/p>\n","protected":false},"author":616,"featured_media":464150,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[189,11],"tags":[1229,1230,266,1231,1125,1232,85,1233,1234,7,848,1235,1236,1237,1238],"class_list":["post-1218","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-intellectual-property","category-technology","tag-anthony-levandowski","tag-cars","tag-crime","tag-driverless-cars","tag-gaston-kroub","tag-google","tag-intellectual-property","tag-judge-william-alsup","tag-self-driving-cars","tag-technology","tag-trade-secrets","tag-uber","tag-waymo","tag-william-alsup","tag-william-h-alsup"],"acf":[],"yoast_head":"\nSelf-Driving... 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