Has google ever filed a lawsuit without merit before? It seems like they have a record of acting responsibly, so I would think this looks bad for Uber.
Google has only ever filed 2 patent suits. This one against Uber, and one against BT. The BT one was only after BT gave meritless patents to patent trolls under the condition that the patent trolls would immediately sue Google and Android phone manufacturers.
I have many things to say about Google's bad behavior, but being a patent troll definitively isn't one. Their policy seems to be busy on innovating and letting others catching up.
Google may be in the right, but this litigious stance does not play well with the democratization of self driving cars. I hope there will be multiple companies offering SDC and a few open source ones, not litigated out of existence. I don't want SDC technology be kept secret like Google Rank.
It is very important that automation be generally available as open source and not restricted by patents, because it might accentuate the migration of capital to the top 1%. We need to empower the 99% as well, as owners of automation, not simple clients of Google and the likes.
injunction page 23 line 12-14: Waymo is not seeking to enjoin Defendants from pursuing self driving cars in toto. Waymo merely asks that Defendants not be allowed to use Waymos trade secrets in doing so.
Page 24 8-9: Moreover, Defendants would be free to use non-infringing alternative components in their business, such as the same third-party LiDAR system that they had previously used before switching to Waymos patented technology.
(Fun fact) From the Gary Brown testimony, page 4 lines 6-8 (Paraphrasing) The "database" was an SVN server, and the specialty software installed was TortoiseSVN.
"asks that Defendants not be allowed to use Waymos trade secrets in doing so."
I was under the impression that trade secrets were explicitly not legally protected, and the entire point of a patent was that you publicly document your invention, in exchange for legal protection.
If Uber had independently come up with the same ideas then there wouldn't be a case.
The real issue is that the guy "stole" the trade secrets and gave them to another company. No doubt he signed an employment contract with Google saying he couldn't do that.
> Waymo, which originally said that two Lidar patents were infringed, on Friday in an amended complaint added a third patent. It also said that Uber infringed unpatented trade secrets, such as parameters and measurements for the light beam used in Lidar.
Are these trade secrets related to the patents? And if so, is Google risking having their patents invalidated by admitting they left out the best mode?
I'm not a lawyer, but I will note that when I've patented things in the past, I usually discover better things in the years after the original patent is filed. These better things might be a new "best mode", and I might patent them or keep them as a trade secret. My lawyer says that's fine.
Trade secrets and patents are roughly each others opposite. A patent is something you disclose to stake a claim in order to either license the tech or to use it in some other strategic way. A trade secret is something your company knows, does not disclose and guards as much as possible from becoming public knowledge (for instance, through NDA's with those employees that will be given access to that knowledge).
Examples of each:
- patent: Dyson's patent on their vacuum cleaner technology
- trade secret: The formulation of Coca Cola
So no, they are not related at all, and this does not risk Google having their patents invalidated.
Your example seems a little contrived. Obviously the formula for Coca Cola isn't the best mode for a vacuum cleaner.
My point was that if their trade secret is also the best mode for the patent, then seemingly that puts them at risk for violating the best mode requirement and having their patents revoked, depending on when they were filed.
It's not as if a patent will contain the full implementation details and of course corporations will use whatever tools we give them to protect their business interests and if that means leaving out a bunch of numbers from a patent application if the application will stand on it's own merits then you will see them do so.
Patent law is not always the most intuitive thing and it works in ways that tech people usually do not readily comprehend because to them many things are 'obvious' that are not obvious to a patent examiner or someone 'skilled in the art'.
And many times the software people are right (especially when it comes to software), and just as many times they are wrong or simply confused by the jargon surrounding patents.
The 'best mode' is not a requirement for a patent at all, you either have something patentable, or you do not. If it stands the test of time (other paying their license fees, you winning court cases against parties infringing) then it was a strong patent. If you come up with a better mode later on that's fine and need not be disclosed.
Whether or not a patent was the very best patent that you could have taken out is - as far as I know - not of any material impact to your chances of winning such cases.
But what I do know is this: in some places breaking NDA's and spreading trade secrets around is a very dumb thing to do so if Google can make that claim stick the other party has a serious extra problem.
The patents will be dealt with on their own, regardless of any 'modes'.
Ideally this should all be disclosed, including future improvements but it's been a long time since patents were used for their original intended purpose anyway, these days it is probably best to think of them as weaponized IP.
>It's not as if a patent will contain the full implementation details
Forgive me for my ignorance, but isn't this exactly what a patent is intended for? An inventor discloses how the invention works, and is given a monopoly in exchange. If the patent doesn't give the details of how something works, then why should society pay the inventor for it by granting a monopoly over it?
Have a look at your typical modern patent application (a granted one) and see if you can rebuild the apparatus based on what is disclosed.
Yes, in theory all the (critical) details are there but in practice this only works in simpler, for instance mostly mechanical patents.
Patents that are broader, for instance to patent some principle may give an illustration and enough info that if you're skilled in the art that you may re-implement it but you're definitely not going to get working schematics and blueprints to work off.
The situation is a bit better than with most scientific papers but not that much better.
As an existence proof: the infamous apple "rounded corners" patent[0] that was granted in 2012 is based entirely on design merits. There is nothing in the patent about details of manufacture from what I can tell. IANAL.
There is/was laws about not fully disclosing everything when filing a patent. The whole point of the system (originally at least) was to encourage sharing ideas by granting inventors limited exclusivity. That said, I think some of the "best mode" of operation provisions were stripped recently.
That's because they are so easy to get around anyway. Who says you even knew about that 'best mode' when you filed and without a compulsion to disclose later improvements the patent would stand.
That has a critical and hard to prove caveat: that at the time of the filing it was known what that 'best mode' was. And since parameters (such as the ones under discussion) are subject to change that could be very difficult, it involves the 'state of mind of the inventor at the time of filing'.
So, since 2012 this is now a requirement.
I've found two examples of this successfully used in litigation, they are referenced here:
It was a requirement before the Leahy-Smith America Invents Act, which is what is meant by "pre-AIA". You stated that "'best mode' is not a requirement for a patent at all" which was incorrect pre-AIA and remains incorrect in the AIA era. Disclosure of best mode remains a statutory requirement, even though it now lacks enforcement.
Your citation is of MPEP 2165, which is what I had referenced earlier. Thank you for sharing a direct link for others to review.
Broadly (and without asserting the accuracy or factual correctness of anything I say), I'm guessing it goes like:
The patent describes the method of using Lidar in the context of a self-driving car.
The trade secret details which frequency/frequencies of light are most effective, perhaps including which work better under what kinds of inclement conditions.
In 2011, Congress passed sweeping patent law legislation, called the America Invents Act (AIA). The AIA changed many aspects of U.S. patent law, including the consequences of failing to disclose in your patent application the “best mode” you are aware of for practicing the invention. Traditionally, if you failed to disclose the best mode in your patent application, then that could be grounds for invalidating the resulting patent. The AIA changed this; no longer can patents be invalidated for failing to include the best mode. The AIA, however, did not change the basic legal requirement that inventors and patent applicants must disclose the best mode in their patent applications. In effect, the AIA left untouched the best mode requirement, but eliminated the punishment, or at least the main punishment, for failing to comply with the requirement.
Would this mean that, while you will not get punished for not disclosing the best mode, you can not call it a trade secret either (since you were expected to disclose it in the first place)?
True story, I've shared here before: many years ago, a co-worker had to run home for some reason in the middle of the afternoon. On his way home, a woman jaywalked in front of his Escalade on a street with a posted 40mph limit. (He wasn't driving that fast, because he was still accelerating away from the stop light.) He hit her, watched her head bounce off the hood of his vehicle, and her go flying to land in a heap a few dozen feet in front of him.
He called 911, and, because there was a fire station like half a block away, the medics were on scene immediately, and the police shortly after. The policewoman who took his statement thanked him when she was done with that, and said, "Now, if you'll excuse me, sir, I'm going to go write her a ticket."
He responded, "Do you have to? She's already had a bad enough day."
She stopped, looked him in the eye for an uncomfortably long moment, and said, "Sir, you want me to write her this ticket..."
>Waymo said in its initial lawsuit that it was inadvertently copied on an email from a supplier with blueprints of Uber’s circuit board design for its lidar technology
Why would that third party answer honestly? Aside from the possible negative reputation damage, that party is almost certainly prohibited from answering Waymo as part of standard bilateral NDAs executed between partners.
In a suit, at least, they can compel discovery and demand accurate testimony.
Yeah, wasn't thinking of espionage - more like someone at the manufacturer thinking "hmm, these are exactly the same designs... I should make this known... whoops, sent it to the wrong person!"
One might imagine a verbal conversation between google (who already suspect their design has been stolen) and the supplier (who they know is the only company in the world who can make it) saying:
"Ya know that uber design which is the same as ours? Mind accidentally CC'ing johnsmith@google.com instead of johnsmith@uber.com? Since johnsmith used to work for google, it would be an honest mistake, and would give us the evidence we need to take this to court"
So I have a serious question. If I worked on Google's self-driving project, how can I prevent me from using that knowledge at another company? More importantly, if i were truly one of the founding members of the projects, I would know inside out and best practices. So seriously, what should I do? Do I just pretend "I don't know the best practice" BS at my staff meeting?
There is a difference between applying existing field knowledge, and downloading tens of thousands of design documents from a server you normally did not access.
But what about knowing how to implement the algorithm? Even something like implementing a dashboard for SRE/DevOps, I can rebuild it given enough time again.
The key statement is "given enough time". Innovation keeps moving; you're falling behind, even as you're trying to re-implement something you've done before.
>> how can I prevent me from using that knowledge at another company
You are expected to distinguish between public-domain knowledge and company-confidential information. Public-domain knowledge includes knowledge that you can (legally) obtain without being a part of the company, that you had from before you joined the company (without being under an NDA), that the company chooses to disclose to the public itself like by publishing papers, etc.
At a new company, you can as such freely describe published patents (i.e., those accessible publicly, whether approved yet or not) from the previous company, however, you or your new company are not expected to be violating any approved patents. It generally helps to not even disclose those inventions at the new company.
"Best practices" are generally not confidential information belonging to a company, though that could theoretically be if they involve patentable inventions or trade secrets. Likewise, you are not expected to be taking out any documents on these best practices subject to copyrights.
As others have said, this case seems to go way beyond "best practices."
However, in the more general case, it probably depends in part on what sort of agreements you've signed. It's also one of the reasons why non-competes do exist and are enforced in many places. As you suggest, if you're a project lead for $FOO technology at Company A and you jump to Company B which wants to get in the $FOO business, the reality is that you're being hired only because you're familiar with what Company A is doing and has learned about $FOO.
You may not hold a meeting and do a brain dump of everything you know about what you learned while at Company A (which might well violate employment contracts and would generally be unethical) but you'll absolutely be transferring knowledge. Of course, this happens all the time at some level when people move between companies.
This is why other states allow non-competes. First, don't take documents, prototypes etc. That will always get you in trouble. Second, anything publicly known is fair game. Third, follow nda's strictly.
But California does have trade secrets that only exist in your mind. If you leave a company and immediately start a direct competitor you'll always be vulnerable to a trade secret allegation. You just have to judge whether they'll actually come after you.
I'd recommend documenting your development practices to show you are doing your own work. But for a small company, just getting sued is going to cost half a million in legal fees.
If you are an employee at a competitor, in would never write or say anything about how your old company did it. If you know how to do it well, that's arguably just a skill you have.
I think there need to be a compromise between the desire to let people work in their field and knowledge to spread and for companies to not just invest in new technology, but also not locate themselves in jurisdictions where they can enforce strict non-competes.
Some of our goals are in conflict, and the answer is not always to come down on the side of one of these goals, but seek some compromise that tries to get the best of both worlds.
But this case seems much closer to a clear case of theft, rather than corporate legal overreach.
(Note: I'm a lawyer, i work for Google, but not in any interesting capacity here. Being part of Google, and not waymo, i don't even have any idea about anything here :P)
Define "resolution".
The preliminary injunction will get ruled on fairly quickly (months most likely). You should expect either side to attempt an appeal of preliminary injunction as well (unlike most non-final judgements, in federal court, you can appeal preliminary injunctions)
The actual case will take years to resolve, not counting appeals, etc.
Lawyer is an interesting word.
Loaded, in fact to most engineers.
I used to run open source licensing while helping to build code.google.com (I helped write Subversion back in the day, and built significant parts of code.google.com).
These days, I still help out running open source licensing and compliance at a high level, but have just about handed all of it off to very good people who take care of it. I still get involved in M&A, policy issues, large or complex fires, etc. Even that is slowing down as people become more and more experienced. Which is great[1]
Now I spend most of my time running the C++ language teams (compiler/toolchains/core libraries/etc).
So, lawyer wise, these days, if they directly ask me for help, usually it means something has gone wrong.
[1] Truthfully, there are not enough really good open source lawyer types who actually understand the interplay of actual engineering and open source really well. The more i can help create, the better.
That path — pursuing a JD toward the end of helping open source projects — has appealed very strongly to me on and off over many years, but I've always been dubious it's something sustainable.
Neither law school, nor living in areas where you'd probably need to, in order to have access to the most relevant courts and highest densities of potential clients are cheap.
I'm sure the occasional settlement wrung out of non-compliant companies or whatever would help, but I'm also pretty sure "occasional" is very much the operative word there.
I'm really glad to hear it's more of a thing than I'd thought it was, though I will admit to some skepticism that working for someone like Google or whomever wouldn't somehow subtly taint one's motivations and efforts towards their goals, rather than what's best for Open Source writ large.
Then again, I was recently reminded of the Chade-Meng Tan quote about doing "what's best for the world," and then "wait[ing] to get fired," so maybe my cynicism isn't entirely warranted here, at least in the specific.
"Neither law school, nor living in areas where you'd probably need to, in order to have access to the most relevant courts and highest densities of potential clients are cheap.
"
It's definitely not worth it for the money.
I did it, originally, because it became clear to me at a young age that patents were going to destroy the software industry, and that the average engineer was just going to sit around and complain on usenet (now hacker news i guess) about it :P
When i joined google, i actually spent a long ass time fighting for patent reform, too.
But it got too lonely (google was often the only one fighting the good fight and the other side gets very good at smearing, etc), and after many years, you also have to survive. But the second you do, you become the villain. People want absolutes.
"I'm sure the occasional settlement wrung out of non-compliant companies or whatever would help, but I'm also pretty sure "occasional" is very much the operative word there.
"
The problem here is that the damages are not likely to pay for the lawsuit in most cases. Sad, but true.
"I'm really glad to hear it's more of a thing than I'd thought it was, though I will admit to some skepticism that working for someone like Google or whomever wouldn't somehow subtly taint one's motivations and efforts towards their goals, rather than what's best for Open Source writ large.
"
Actually, watching and participating in the politics of GCC did that long before i ever joined google :P.
The truth is always in between. Nobody is completely altruistic, nobody is completely self-interested.
At the same time, when i train new googlers, we explicitly tell them we comply with licenses mainly because it's the right damn thing to do. And we believe it.
Primarily ensuring license compliance, but also things like trademarks or patents as needed. Really, whatever moves the broader cause of Free/Open Source Software forward.
> Actually, watching and participating in the politics of GCC did that long before i ever joined google :P.
Fair point. :|
Thanks for taking the time to address my thoughts and concerns. It truly is appreciated.
I updated it, i never bothered changing it over the years.
But yes, that, as well as M&A, advice about lawsuits involving open source, etc.
That's just the lawyer side though. I've never been a lawyer-only.
Only bad lawyers do that, and only bad engineers abdicate their authority and let them.
Any good thing at a tech company is a collaboration between various parts (product, eng, etc). The second you let someone else run everything, you lose, and the product loses.
injunction page 23 line 12-14: Waymo is not seeking to enjoin Defendants from pursuing self driving cars in toto. Waymo merely asks that Defendants not be allowed to use Waymos trade secrets in doing so.
Page 24 8-9: Moreover, Defendants would be free to use non-infringing alternative components in their business, such as the same third-party LiDAR system that they had previously used before switching to Waymos patented technology.
(Fun fact) From the Gary Brown testimony, page 4 lines 6-8 (Paraphrasing) The "database" was an SVN server, and the specialty software installed was TortoiseSVN.
Well Google should be more aggressive but that would be hypocritical of them as they do this stuff themselves to the little guys with no money only a dream/gumption(met with them in 2013 to discuss my audio syncing across multiple devices tech.. it was like that Silicon Valley episode but worse) to im sure their wealthy competitors.
That's a brilliant plan. Lets wipeout thousands of jobs and billions in investment equity because... you know "karma". And for what? Because they have to play hardball in a field drowning in entrenched money interests?
As for this particular case, I have to say it seems a little strange to me that Anthony Levandowski could just leave Google and start his own company, Otto, with Google's intellectual property. No one complained then. But when Uber buys Otto, now it's a problem. One has to wonder who is playing who exactly?
Uber can play hardball with its competitors in reason like how it destroys and steamrolls the old taxi industry yet it's gone too far when it streamrolls over everyone who is not a Travis Kaladick bro!!!
From its customers to its drivers to journalists to etc and etc they treat all the same ...like garbage. That's because its CEO let his ego blow up(forgot humility and being thankful for the luck he's be given) and hopefully soon it will blow up in his face!!!
Also when and if Uber falls others who play fair will take over! I.e. All Uber drivers will make an exodus to Lyft!!!
Okay, I'm all for protecting intellectual property and dissuading employees from taking IP with them. But if this injunction delays self-driving cars by even a little bit, it'll cost thousands of lives. If the deaths were going to happen tomorrow, no judge would allow it. But because they'll happen seven years from now, no one considers it.
I dunno about all that. "For the greater good" "Ends justify the means" all come to mind. If it's theft, it's theft. If it's within the law to stop them from continuing to develop off of allegedly stolen IP, then that's the right decision.
It's not like pharma companies have a free for all where everyone can steal from everyone because the more development on cancer treatment eleventy billion the better.
To put it differently, there's no guarantee that preventing Uber from working on this technology will cost lives in the future (Uber might not exist in 7 years and the technology might be a dead end), therefore it shouldn't be a factor.
'I dunno about all that. "For the greater good" "Ends justify the means" all come to mind. If it's theft, it's theft. If it's within the law to stop them from continuing to develop off of allegedly stolen IP, then that's the right decision.'
Problem is, IP is an invention that temporarily takes away the public's right to copy, for the purposes of encouraging cultural works and public documentation of trade secrets.
In other words, IP is based on "for the greater good" itself, so if you claim that "for the greater good" is invalid, then IP is invalid by extension.
Now, you could argue that it will damage trust in the reliability of the legal system, but that doesn't change the fact that the "if it's theft, it's theft" argument doesn't hold any water.
But if those deaths were to occur tomorrow, absolutely the ends would justify the means. There's no judge in America who would kill 10k people tomorrow just to do justice to Uber. But because those are in the future (and as you say, hard to prove now), it's not even considered. But they're real deaths of real people.
There's going to be a year when self-driving cars become ubiquitous and deaths from cars drop to almost zero. The previous year, many thousands will die in cars. Those deaths are avoidable by pushing this agenda forward, and preventing Uber from moving forward hurts the agenda.
> hard to prove now ... But they're real deaths of real people.
That's a contradiction in my books. I don't want to get into a metaphysical discussion of what "real" is, but I challenge you to say that things that may not happen are real. Example: Landing humans on Mars is not real.
> There's going to be a year when self-driving cars become ubiquitous and deaths from cars drop to almost zero.
Yes. I do agree with this.
> and preventing Uber from moving forward hurts the agenda.
This is not fact. I could argue that the greatest barrier to self-driving cars reducing vehicle deaths to 0 is legislation. I could then argue that the most harmful thing to pass that legislation is early, highly publicized failures of that technology. Finally, I would argue that of all the tech companies in a position to implement said technology, Uber is the MOST likely to push it too fast and cause a highly public, negative event (given their current cloud of doom). Therefore, I conclude that the most important thing to save lives is prevent Uber from implementing that technology.
But it's all moot because none of that is real. Just like your assertion.
Sure, I think that's a plausible scenario. It's also plausible that Uber will succeed (they've succeeded a lot!) and this will light a fire under everyone's butt and create amazing competition, pushing all car makers into this space earlier than they would have otherwise.
Of course we don't know, but that doesn't mean we shouldn't guess. My scenario above seems most likely to me, and therefore stopping Uber lets car makers rest of their laurels a bit longer.
And by the way I would take this further: I'd like to government to provide immunity to self-driving car manufacturers for the next few years while they develop their technology, the same way that vaccine makers are immune to health damages from their products.
Remember that we should be willing to kill hundreds of people with self-driving cars just to push the technology forward even one week. (600 people per week die in the U.S. in cars.) Of course I agree with you that this is politically untenable, but it's still what should be done.
> Remember that we should be willing to kill hundreds of people with self-driving cars just to push the technology forward even one week
I will never agree to that. A negligent death is a negligent death. We are not on the same page and I don't feel there is any potential benefit to a continued discussion. Good day.
There's a reason why the legal system judges people on harm they actually cause and not the hypothetical best case scenario from allowing them to continue causing harm.
Privileging theft in this area by not punishing Uber discourages the further investments necessary to develop the technology so that those lives will be saved, setting things back more than any punishment to Uber would.
Allowing Uber to move forward may mean Waymo takes much more time to develop this tech (since they'll be paranoid about any leaks), and meanwhile Uber burns out as many predict. Now allowing Uber to move forward is the killing action.
In the end, we can't know the future, so we use principles that are supposed to lead, by and large and on average, to better societal outcomes. Now, we can discuss specific principles, but reading tea leaves is not useful.
I don't see how the technology stolen by Uber/Otto is going to slow down the pace of innovation in the industry. It might slow Uber down, but that's their fault for playing fast and loose with the rules - which seems to be their modus operandi.
Google is now a company that holds a patent on a product, does not produce or market said product, but sues other companies for trying to produce that product for alleged infringement of the patent.
Google's active development of self driving tech is widely known.
The same can't be said of patent trolls like Intellectual Ventures who never intend to produce anything.
Intent, while it may not currently apply to patent law, does apply in other areas of law. Perhaps it will never apply to patents. But the public is not so short sighted as to not see the difference here.
Google is and has been in negations to license the tech with several start-ups and auto manufacturers. Hell, uber was one of them. Surely you don't expect a software company to all of a sudden get into the business of selling cars?
