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I’m not so sure Waymo’s going to win against Uber

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Waymo v. Uber, day 4

So… guys? Can we talk about something for a second?

It’s day 4 of Waymo v. Uber, and I’m still not entirely clear on what Waymo’s case is.

Yes, it’s a case where a former Google engineer absconded with over 9 gigabytes of data, transferred it to his laptop, backed it up onto disks that he put in his closet, sent texts about shredding evidence, and deleted texts about shredding evidence, and is also now expected to invoke the Fifth Amendment on the stand. And yes, when Uber acquired his company, it indemnified him for intellectual property claims as part of the acquisition.

But even with all that, I’m not sure Waymo is going to win because I can’t figure out the case they’re putting on.

It’s a trade secrets case, and because trade secrets lose trade secret status when they become public, portions of the trial were always going to be under seal. Waymo originally asserted that over a hundred trade secrets had been misappropriated by Uber — that’s been narrowed down to eight. We don’t know what these trade secrets are. They could be circuit boards, they could be the placement of components on the circuit boards, they could maybe even be machine learning data sets. Trade secrets are a pretty broad category: they can be a “formula, pattern, compilation, program, device, method, technique, or process.” We, the public, are not allowed to see what those eight secrets are.

But, uh, it’s a little weird that we have literally no idea even what general ballpark they’re in? I mean, given that only 45 minutes of Waymo time have been under seal?

Can you really explain eight self-driving car trade secrets in 45 minutes?

And then there’s the part where Anthony Levandowski is not on trial, Uber is. Even if Levandowski took 14,000 confidential documents, that doesn’t mean that Uber did something wrong — there isn’t a clear link to how those documents got onto Uber computers or were used in Uber self-driving cars.

Though, sure, there isn’t clear evidence the documents didn’t find their way over to Uber. A lot of things got deleted, not everything was forensically recoverable, and also, a hard drive named “NEWCO” was connected to Anthony Levandowski’s personal laptop in January 2016. NEWCO was Uber’s code name for the company that became Ottomotto. No one was able to find and examine that hard drive.

Things feel off, but still, this is Waymo’s case to make and their burden of proof to carry. And I’m really confused about what their case even is.

One part of what they’re supposed to prove is that the trade secrets they assert are actually trade secrets. Again, the trade secret could be a schematic, a circuit board, a process or a technique, but regardless, the company who owns the trade secret has to be taking reasonable care to keep the secret a secret.

Part of Uber’s case appears to be that Google doesn’t take reasonable care to keep its LIDAR a secret because Waymo’s LIDAR technical lead Pierre-Yves Droz took one of the old LIDARs with him to Burning Man. But let’s not even get into that now.

A trade secret also has to be valuable and it has to be valuable because it’s a secret. It also can’t be “readily ascertainable by proper means” by other people who might get something out of its value — in other words, if you can legally reverse engineer the technology after buying it off the shelf, that technology isn’t a trade secret.

Whatever these Google trade secrets are, there’s some convincing testimony that they’re worth stealing. Today, lawyers trotted Droz out to testify about the differences between Waymo’s secretive, proprietary LIDAR and Velodyne’s off-the-shelf LIDAR.

Grizzly Bear 3 (GBR-3) — which he had helped develop through many iterations over many years — is long-distance, where Velodyne is “medium-distance,” he said. While both GBR-3 and Velodyne LIDAR featured 64 lasers, GBR-3 wasn’t just more powerful, it’s much, much cheaper — it costs about $4,000 where Velodyne’s is $75,000. If there’s a secret sauce that gives Waymo that edge, it’s a valuable one.

But Uber has an email from Sasha Zbrozek, a Google engineer, who wrote, “It’s all electronics designs, schematics and PCB layouts and the component library for their creation. It was considered low-value enough that we had even considered hosting it off Google infrastructure.”

Trial exhibit.

Zbrozek took the stand today to clarify that he thought hardware was treated like a “second-class citizen” compared to software and algorithms — that didn’t mean that hardware wasn’t valuable at all.

It’s still a weird, conflicting statement! But let’s set that part aside.

I’m much more weirded out by something else: Waymo keeps throwing out red herrings about their trade secrets during trial. When the public came back into the courtroom after the sealed portion of Waymo’s opening statements, Judge Alsup chided them for putting up “stuff that looked like promotional videos” in the sealed courtroom. That shouldn’t have been under seal, he said.

“In fact, look, I want to say, this is for you newspaper reporters out there, in the sealed portion, only about two-thirds of it deserved to be sealed,” the judge added, pointedly. “There were things about LIDAR, there were things about — like these promotional ads that you’ve put up there that the public could have seen.”

Alsup told Waymo lawyers that they were “leaving the impression with the jury that you invented LIDAR, that you invented self-driving cars, and that that’s what this case is about.” Mindful of his rant, Waymo was careful to mention that Google did not invent LIDAR later that day.

And then there’s the circuit board from the Gorilla Circuits email. Back in December 2016, a manufacturer of printed circuit boards (PCBs) accidentally forwarded an email to a Waymo engineer that was for Ottomotto — the company that Anthony Levandowski had founded after suddenly quitting Google, and had then been acquired by Uber.

The email contained a zip file labeled “manufacturing docs for Fuji laser,” containing schematics and all the other information necessary to manufacture a PCB. The engineer opened up the email and got suspicious about a drawing of a circuit board. It looked awfully like a PCB in one of Waymo’s LIDARs.

He showed it to his manager. The matter was swiftly escalated up the food chain, each person agreeing that the circuit board looked a lot like theirs.

The gallery was not allowed to see the drawing in question, which is under seal.

Well, that sounds bad, doesn’t it? Here’s the thing. In the break, when the jury had gone into the jury room, Judge Alsup took a moment to berate the lawyers for keeping the drawing under seal. It had to do with “Trade Secret 96,” but 96 was one of the many dozens that got tossed out as Waymo’s case was narrowed down to the final eight.

“You know, you have been attached to that Gorilla Circuits email,” said Alsup. “You have squirmed left and right trying to figure out some way to build your case around it. And even though 96 got thrown into oblivion, you’re still trying to find some way to screw that into the case and it has nothing to do with any trade secret that’s in play.”

Look, it’s a trade secrets case. I walked into this fully expecting to be locked out of the courtroom for huge portions, for the very core of this case to remain an unknowable black box. And yes, the core of the case is still a black box, but it’s a black box the size of a Tamagotchi and I would very much like to know why.

Waymo took another 15 minutes of sealed testimony today. They seem to be on track to finish presenting their evidence tomorrow, giving Uber a chance to start their case on Monday. Both sides have physical LIDARs admitted as exhibits in court and are maybe going to show them to the jury?

Maybe the general direction of questions will make more sense to me tomorrow. For now, I’m just extremely confused.