Waymo, the self-driving car unit owned by Google’s parent company Alphabet, is now about a month away from its trade secret trial against Uber, and things are starting to get a little messy. Waymo planned to argue that Uber stole nine of its trade secrets and used them in its own self-driving cars in order to cut corners and catch up to the rest of the industry. But the judge in the case just threw out one of Waymo’s secrets, along with the expert witness Waymo planned to rely on for evaluating how much Uber should owe in damages.
This obviously isn’t ideal for Waymo, which seemed to have a slam dunk case against Uber when it first announced in February that one of its former employees, Anthony Levandowski, had walked out of the door with tens of thousands of documents related to lidar development and gone on to lead Uber’s self-driving car team.
But it’s not the end of the world, either—Judge William Alsup has repeatedly leaned on Uber and Waymo to narrow their case before the trial. Getting rid of less-than-airtight claims from both companies will help make the case tidier for the jury.
The booted trade secret is referred to as Trade Secret 96 (Waymo narrowed a list of more than 100 secrets down to nine for the trial) and has to do with the configuration of a printed circuit board inside Waymo’s lidar system. According to Alsup, Waymo’s claimed secret isn’t really secret at all. “Waymo’s narrowed offer of proof as to asserted trade secret number 96 in large part turned out to be merely a more detailed rendition of the evidence it had offered with respect to asserted trade secret number one,” Alsup wrote, adding that he’d already ruled “that Waymo’s asserted trade secret number one was ‘nothing more than Optics 101.’”
Sharing the opinion of an expert who had testified for Waymo that Trade Secret 96 was indeed secret, “would be grossly misleading to the jury, more prejudicial than probative, and thus inadmissible,” Alsup said.
Waymo declined to comment on the record about the trade secret ruling, but noted that it has significant evidence to back up the eight remaining trade secret claims it is bringing to trial.
In a second order today, Alsup said he would exclude testimony from a financial expert, Michael Wagner. His reasoning will remain under seal until this evening, but Waymo had expected to use Wagner’s testimony to help determine damages in the case.
Uber, of course, had some spicy things to say about the rulings. “Waymo’s case continues to shrink. After dropping their patent claims, this week Waymo lost one of the trade secrets they claimed was most important, had their damages expert excluded, and saw an entire defendant removed from the case—and all this before the trial has even started,” an Uber spokesperson said. (To be clear, Waymo dropped its patent claims in July as part of an agreement with Uber that would prevent Uber from continuing development on one of its older lidar devices. Alsup had questioned the legitimacy of the patent claims several times, but had not explicitly ordered Waymo to drop them.)
The two companies are headed to court in December.