Waymo v. Uber (Fed. Cir. 2017)
The Federal Circuit has released a pair of decisions (2017-2235; 2017-2130) in this patent / trade secret case. Waymo (Google) sued Uber (Ottomotto) for patent infringement and trade secret misappropriations. “Specifically, Waymo alleges that its former employee, Mr. [Anthony] Levandowski, improperly downloaded thousands of documents related to Waymo’s driverless vehicle technology and then left Waymo to found Ottomotto, which Uber subsequently acquired.”
Arbitration: In this lawsuit, Waymo sued Uber but not Levandowski himself. However, Levandowski intervened into the lawsuit to defend his personal interests. Uber then filed a motion to compel arbitration based upon the arbitration clause found in the employment agreement between Levandowski and Waymo. Although the agreement’s terms do not extend to Uber, Uber argues that the agreement should equitably apply since the complaint alleges that the misappropriation was conducted “by virtue of [Levandowski’s] job at Waymo.” In order to avoid an arbitration order, however, Waymo promised that it would not affirmatively rely upon “any employment or other agreement with Levandowski containing an arbitration clause” throughout the lawsuit (unless the documents are first raised by Uber). The District Court (Alsup) then rejected the motion to compel arbitration. Under the Federal Arbitration Act, denial of arbitration is immediately appealable.
On appeal here, the Federal Circuit affirmed — holding that as a matter of California Contract Law, the arbitration clause did not apply to Uber, and that equitable estoppel does not apply since Waymo has disclaimed any affirmative use of the employment contract in its case against Uber.
California law establishes that reliance on the contract bearing the arbitration clause is fundamental to compulsion by a non-party to arbitrate.
Here, Waymo has expressly stated that it is not relying upon the contracts containing the clause — thus successfully foreclosing the estoppel theory arbitration.
The second case involves a petition for Writ of Mandamus by Levandowski fighting-off a discovery order. The particular document at issue is a report created by the Stroz Friedberg firm in the lead-up to the Uber-Otto merger regarding prior Waymo employees. Importantly, the report was requested by Uber and Otto – not Lefandowski himself. The district court ordered discovery of the Stroz Report. In the appeal, the Federal Circuit rejected the petition — holding that Levandowski failed to show the urgent nature of the interlocutory appeal.
Mr. Levandowski contends that disclosure of the Stroz Report would be “particularly injurious or novel.” . . . His arguments are unpersuasive, for it is apparent that Mr. Levandowski cannot invoke attorney-client privilege or work-product protection.
Regarding injury, Mr. Levandowski fails to articulate any persuasive reasons why disclosure of the Stroz Report should be barred in this civil litigation, for the possibility of admissions against his interest is a valid function of civil discovery. While Mr. Levandowski claims that the District Court would be unable to “cleanse the trial of all taint from the improper disclosure,” such an unsupported assertion is insufficient. Moreover, we take note that the District Court, reviewing the Stroz Report in camera, declined to exclude it, and as explained above, the Supreme Court has indicated that appellate courts can remedy an improper disclosure of privileged information by vacating an adverse judgment and remanding for a new trial.
Slip opinion, internal citations removed. Thus, the outcome here is that the lawsuit will continue before the district court without interruption. The court is preparing for trial, with ongoing allegations of discovery abuse as well as a pending partial summary judgment motions. A recent order from the court is as follows:
By SEPTEMBER 15 AT NOON, counsel for plaintiff Waymo LLC shall file a declaration under oath responding to each and every accusation of discovery misconduct by Waymo [made by] defendants Uber Technologies, Inc., and Ottomotto LLC’s (collectively, “Uber”).
Respond fully to each and every allegation therein. Be complete and accurate. Counsel shall also state the extent, if any, to which it is true that Waymo “still has not produced a privilege log” (id. at 4).
Also by SEPTEMBER 15 AT NOON, counsel for Uber shall file a declaration under oath in support of the aforementioned accusations.
Further, a fascinating article by Mark Harris was published this week in IEEE’s Spectrum about the lawsuit titled: Could a Pair of Earrings Hurt Waymo’s Lidar Trade Secrets Lawsuit?
Interesting note on the appeal from the arbitration decision – the Court never discusses whether it has jurisdiction. I would assume the decision could be appealed under the collateral order doctrine, but the fact that the Court never addresses it seems questionable to me. This is exactly the kind of case where they should be affirmatively stating why they have jurisdiction.
The “recent order from the court” quoted above sounds like a judge fed up with extensive discovery disputes and games, and determined to stop it. More of these in Federal District Courts, if accompanied by sanctions, could reduce patent litigation costs.
Will the professor or one of his academic friends write about the rise and fall of the Mental Steps doctrine so that Malcolm can stop dissembling?
Oz’s new start-up Aurima, which says it is developing multi-sensor deep-learning awareness for self-driving cars
LOL
Collecting data using “multiple” sensors?! Wowee zowee! What will these robot car geniuses come up with next?
“Deep learning” “awareness” <—- Silicon Bros never stop with their g0bblydy g 0-0 k. A search of granted patented claims for this vaporous "sub-class" of informationprocessing logic pulled up 40 hits starting in June 2013. Of course, we all know that computing has absolutely no resemblance (MUST NEVER SUGGEST OTHERWISE!!!!) to "thinking" so the terms "learning" and "awareness" in this context mean something "totally different." Sure they do! Just randomly chosen words. So we've been told by the super serious and very important patent maximalists. They need your money! Or they'll make the world stop turning and we'll be driving stick shifts with our hands on the wheel, just like the Amish.
This is like reading something from some insane person from medieval Europe transported to the present day. Just frightening to image people that think like this have any power over our lives.
Not just one sensor but … two or more! I’m still trying to figure out how they stumbled across this unbelievably awesome solution.
Martin Shkreli got socked into jail Wednesday when a federal judge delivered a poetic punchline to the Pharma Bro’s own Hillary Clinton jokes.
Brooklyn Federal Judge Kiyo Matsumoto revoked Shkreli’s $5 million bail Wednesday evening, saying Shkreli’s $5,000 bounty on Clinton’s hair was the final straw.
Shkreli was convicted in August on securities fraud and conspiracy to commit securities fraud. He’ll now have to fight the case on the inside.
Too funny.
I’ll bet $10,000 bucks this s c h l u b ends up playing in the patent monetization industry before he mysteriously disappears for good. Birds of a feather and all that.
“Birds of a feather and all that.”
translation: anyone not liked by Malcolm is thrown into a single bucket.
How Trump of him.
Oz’s new start-up Aurima, which says it is developing multi-sensor deep-learning awareness for self-driving cars
LOL
Collecting data using “multiple” sensors?! Wowee zowee. What will these robot car geniuses come up with next?
“Deep learning” “awareness” <—- Silicon Bros never stop with their self-fell@ting gobblydyg 00 k. A search of granted patented claims for this vaporous "sub-class" of information processing logic pulled up 40 hits starting in June 2013. Of course we all know that computing is NOTHING AT ALL (NEVER SUGGEST OTHERWISE!!!!) like thinking so the terms "learning" and "awareness" are just … mud in your eye. Right, maximalists? Because you're totally not hypocrites.
Here's some really fresh cr @p, still warm and steaming as I type:
9,760,806
1. A method for vision-centric deep-learning-based road situation analysis, comprising:
receiving real-time traffic environment visual input from at least one camera; determining … at least one initial region of interest …
determine if a detected object in the at least one initial region of interest is a candidate object to be tracked…
predicting a future status of the detected object …
and determining if a warning signal is to be presented to a driver of a vehicle based on the predicted future status of the detected object.
The rest of the claim is g@ rbage of course. How do we know that? If it wasn’t g@ rb@ge it would claimed straight up without the context, as pure logic applied to any generic data, without all the juicy context and information content. And then, of course, everyone would know it was ineligible. But … ROBOT CAR! Somebody’s getting rich so we have to look the other way or else we’ll all be driving stick shifts with our hands on the wheel like the Amish. They told us so and they’re very serious and important people. They need these “deep learning” patents because otherwise nobody will ever program computers to do stuff.
Less than 15 months from filing to 1st action allowance.
Wow.
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