Uber v Waymo: who blinked first?

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As soon as once more, it is actually bizarre to settle in the midst of a trial. Earlier than the revelation that Waymo had proffered that earlier $500 million settlement, I assumed it was potential that it was Waymo’s plan all alongside to place Travis Kalanick on the stand, question him for two days about his terrible text messages, play the Michael Douglas “Greed is Good” speech in open courtroom for the jury, after which blow this popsicle stand earlier than a jury verdict might are available in. One other chance was that because the week progressed, Waymo realized its case was too weak to go to the jury.

And properly, each prospects solely made sense if Waymo’s lawsuit — regardless of all the hilariously suspicious circumstances across the alleged doc theft — was really a nothing burger all alongside.

After the report of Waymo’s settlement supply earlier this week, I believe this all factors to Waymo realizing it had a dud on its palms. As soon as Uber, for no matter cause, determined to capitulate to non-use phrases, the settlement was in.

Look, it is not that Waymo had no case. In trial, Uber didn’t attempt to dispute that Anthony Levandowski downloaded 14,000 paperwork onto his work laptop computer, moved them onto his private laptop computer, after which moved them onto different disks. Uber additionally didn’t attempt to dispute that Levandowski was getting cozy with Travis Kalanick earlier than he left Google and that the 2 of them have been insufferable bros who despatched one another probably the most idiotic textual content messages you may presumably think about.

However Uber fought again laborious on the concept that Kalanick and Levandowski fashioned some sort of conspiracy in December 2015 the place Levandowski would take 14,000 paperwork and produce them over to Uber. And even probably the most damning of paperwork — the Stroz Friedberg due diligence report, which data second- and third-hand details about a suspicious assembly at Uber — means that Travis Kalanick did not know in regards to the paperwork till late within the sport, that he by no means noticed them, and that he advised Levandowski to do away with them as quickly as he discovered that they existed.

In fact, there’s loads of stuff that Waymo was by no means in a position to get its palms on, just because it was destroyed. Kalanick had 30-day auto-delete set on iMessage. His texts have been nonetheless forensically recovered, however he additionally used Telegram and if he despatched any ephemeral messages via that, Waymo by no means bought ahold of them. Then there’s the lacking “NEWCO” laborious drive that was related to Levandowski’s laptop computer again in January — NEWCO was Uber’s code title for the startup that will turn into Ottomotto. And naturally, Levandowski was anticipated to invoke the Fifth Modification on the stand, which, you recognize, makes you sort of assume one thing’s up!

However simply because issues scent unhealthy does not imply that Waymo was going to win their case. It was Waymo’s case to show, and so they had over a 12 months to comb via a mountain of telephones, laptops, and servers. They tore Uber aside in search of the smoking gun and got here up so brief on proof of a conspiracy that one of many reveals they confirmed in courtroom was an image of a whiteboard at Uber the place Levandowski had written “1) Pittsburgh — I do know some shit.” (Additional down this really genius record, he had additionally written, “three) West coast rap (Tupac).”)

Based mostly on testimony, it does sound like one thing was bizarre in regards to the circuit boards at Uber, however Anthony Levandowski’s normal expertise with LIDAR would not depend as a commerce secret that Google will get to maintain eternally. In fact, if the circuit board infringed one thing Google had patented, they may sue Uber, even when Uber had give you the thought independently and even when Levandowski was listed as an inventor on the patent.

The unique lawsuit asserted patent claims in addition to commerce secrets and techniques. Finally the lawsuit narrowed all the way in which right down to eight particular commerce secrets and techniques. Quite a lot of this case has been below seal and the general public hasn’t gotten an actual have a look at the know-how concerned — as a result of commerce secrets and techniques lose their authorized safety the second they’re not secrets and techniques.

Yesterday I noted that I found it suspicious that Waymo had spent so little time below seal within the courtroom. Here is the opposite factor: if the circuit boards have been so comparable, why did the patent claims drop out of this case? Is not that…. Bizarre?

So it is beginning to appear like the higher query is, “Why did not Waymo settle sooner?” There is a bunch of potential solutions to that. For one factor, with a nothing burger case, possibly a non-use clause in a settlement settlement was the perfect they may hope for. And you’ll’t low cost the chance that it was largely a grudge match between bros all alongside. Larry Web page is reportedly extremely, extremely angry — or, in Kalanick’s phrases, very “unpumped.” Generally lawsuits aren’t pushed by rational actors, they’re pushed by people who find themselves very mad at one another.

However a very powerful half is that even when Waymo wasn’t going to win the lawsuit, they’ve gained a special conflict.