Wisk Aero LLC v. Archer Aviation Inc.
| Docket Number | 3:21-cv-02450-WHO |
| Decision Date | 30 May 2023 |
| Parties | WISK AERO LLC, Plaintiff, v. ARCHER AVIATION INC., Defendant. |
| Court | U.S. District Court — Northern District of California |
[REDACTED] ORDER ON MOTIONS FOR SUMMARY JUDGMENT MOTION TO STRIKE, MOTIONS TO EXCLUDE, AND DAUBERT MOTIONS RE DKT. NOS. 435, 437, 439, 441, 442, 443, 445, 451, 453, 456 459, 474
This Order concerns the dispositive motions filed by plaintiff Wisk Aero and defendant Archer Aviation in this patent and trademark case. For the following reasons, Wisk's motion for summary judgment is DENIED, Archer's motion for summary judgment is GRANTED in part and DENIED in part, Wisk's motion to strike is GRANTED in part and DENIED in part, and the motions to exclude and Daubert motions are GRANTED in part and DENIED in part.
Wisk sued Archer in April 2021 for alleged patent infringement and theft of trade secrets related to Wisk's Electrical Vertical Takeoff and Landing (eVTOL) aircraft technology. [Dkt. No. 1]. Many of the relevant facts are outlined in my prior order denying a preliminary injunction, [Dkt. No. 133], and this order assumes familiarity with those facts. Additional relevant uncontested background facts are provided below, and much of the submitted evidence as well as disputed facts are discussed throughout the order.
Wisk was formed in 2010, and by 2019 it had undergone several name changes and acquired new corporate partners and investors, including Kitty Hawk and the Boeing Company. Declaration of Geoff Long (“Long Decl.”) [Dkt. No. 16-27] ¶¶ 2-4. Wisk was focused on building electric, passenger-carrying aircraft, powered by batteries rather than chemical fuel. Id. ¶ 5. Wisk previously built five generations of aircraft and by 2019, Wisk began work on a sixth generation called Cora X. Id. ¶¶ 6-10; Supplemental Declaration of Geoff Long (“Long Supp. Decl.”) [Dkt. No. 92-4] ¶ 9. The Cora X aircraft used 12 rotors and considered the incorporation of six tilting fans, for a “12-tilt-6” configuration. See Long Supp. Decl. ¶¶ 9-11.
Archer was formed in 2018 by Brett Adcock and Adam Goldstein. Declaration of Brett Adcock (“Adcock Decl.”) [Dkt. No. 58-13] ¶¶ 1, 13-17. By June 2019, Archer had a prototype eVTOL aircraft, id. ¶ 19, but soon learned its design was unlikely to succeed commercially, id. ¶ 20. In September 2019 Archer began working with third party FlightHouse Engineering (“FHE”) to help with designs. Id. ¶¶ 23-26. By October 2019, Archer had started recruiting engineers and employees from Wisk. Id. ¶¶ 33, 36, 48-49; Long Decl. ¶¶ 11-12. By December 2019, at least one engineer from Wisk (Tom Muniz) began working at Archer, and others soon followed. Adcock Decl. ¶¶ 39, 49. At the same time, Archer was recruiting engineers from other aircraft companies with experience in the eVTOL industry. Id. ¶¶ 50-51. By February 2020, Archer had selected a new “12-tilt-6” aircraft configuration for its demonstrator aircraft, Maker. Declaration of Geoff Bower (“Bower Decl.”) [Dkt. No. 58-20] ¶¶ 18-25.
On January 31, 2020, Wisk submitted a provisional patent application, apparently in response to learning about plans for Archer's design for its Maker aircraft. [Dkt. No. 17-19]. The application contained the following depiction:
In February 2021, Archer presented a visual depiction of the Maker aircraft to investors, including the following illustration:
(Image Omitted)
On April 6, 2021, Wisk filed this lawsuit, arising out of concerns that the Maker aircraft infringed several of Wisk's patents and that former Wisk engineers stole and used at Archer trade secrets developed during their time at Wisk. [Dkt. No. 1]. The same day, Wisk posted to its website a blog about the lawsuit, entitled “Why We're Taking Legal Action Against Archer Aviation.” [Dkt 451-11] (“Blog Post”). On May 19, 2021, the day Wisk filed for a preliminary injunction, it “update[d]” the blog post with two additional sentences about a related “criminal investigation into Archer relating to the theft and use of Wisk's intellectual property.” Id.
As noted above, Wisk filed this suit in April 2021 [Dkt. No. 1] and moved for a preliminary injunction the following month. [Dkt. No. 16]. Wisk also filed a 2019.10 Disclosure. (“Disclosure”) [Dkt. No. 45-5] (Kapgan Ex. E). After permitting the parties to engage in extensive initial discovery, I denied Wisk's motion for a preliminary injunction. (“Order Denying PI”) [Dkt. No. 133]. That order also denied Archer's motion to dismiss as well as Archer's motion to strike Wisk's trade secrets for lack of particularity. Id. Wisk subsequently filed its operative second amended complaint. (“SAC”) [Dkt. No. 148].
Archer filed counterclaims and amended counterclaims asserting state law causes of action, including defamation, and for declaratory judgment of noninfringement of the '036 Patent. I subsequently denied Wisk's motion to dismiss and its anti-SLAPP motion to strike. (“Order on Counterclaims”) [Dkt. No. 146]. Archer then filed its operative second amended counterclaims. (“SACC”) [Dkt. No. 154].
I also held a Markman hearing and construed certain claims. (“Claim Construction”) [Dkt. No. 258]. I later granted Wisk leave to serve amended infringement contentions. [Dkt. No. 348].
Throughout the litigation, the parties have filed at least 23 letters regarding discovery disputes, which have mostly been addressed by the Honorable Donna Ryu. [Dkt. Nos. 36, 69, 86, 151, 164-65, 167, 186, 191, 235, 241, 246, 260, 271, 278, 281, 282, 284, 329, 346, 371-73, 377, 396, 411]. I also denied Wisk's motion for sanctions arising from allegations that Archer's employee, Scott Furman, intentionally hid and deleted files that he took when he left Wisk. [Dkt. No. 423].
Now, Wisk moves for summary judgment on Archer's state law counterclaims and for declaratory judgment of infringement of the '036 patent. ( ) [Dkt. No. 451]. Archer opposed. (“D. Oppo.”) [Dkt. No. 497]. Wisk replied. ( ) [Dkt. No. 529]. Archer also moves for summary judgment on ten trade secrets and two patents. ( ) [Dkt. No. 474[1]. Wisk opposed. (“P. Oppo.”) [Dkt. No. 498]. Archer replied. ( ) [Dkt. No. 528]. Wisk also moves to strike Archer's Undisclosed Non-Infringing Alternatives. (“Mot. Strike”) [Dkt. No. 441]. Archer opposed. ( ) [Dkt. No. 484]. Wisk replied. ( ) [Dkt. No. 511]. Additionally, the parties filed nine Daubert motions and motions to exclude certain expert testimony. Together, the parties' briefing alone consisted of over 800 pages, with thousands and thousands of pages of exhibits.
I held a hearing on these motions on May 12, 2023, at which counsel for both parties appeared.
Summary judgment on a claim or defense is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Proc. 56(a). In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the non-moving party's claim, or to a defense on which the non-moving party will bear the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this showing, the burden then shifts to the party opposing summary judgment to identify “specific facts showing there is a genuine issue for trial.” Id. The party opposing summary judgment must then present affirmative evidence from which a jury could return a verdict in that party's favor. Anderson v. Liberty Lobby, 477 U.S. 242, 257 (1986).
On summary judgment, the Court draws all reasonable factual inferences in favor of the non-movant. Id. at 255. In deciding a motion for summary judgment, “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Id. However, conclusory and speculative testimony does not raise genuine issues of fact and is insufficient to defeat summary judgment. See Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).
Archer filed several counterclaims against Wisk, asserting interference with contractual relations, SACC ¶¶ 65-71, interference with prospective economic advantage, Id. ¶¶ 72-78, defamation, Id. ¶¶ 79-91, and unfair business practices under California's Unfair Competition Law (“UCL”), Id. ¶¶ 92-98. Archer also sought declaratory judgment of noninfringement and invalidity of the '036 Patent. Id. ¶¶ 99-106. Wisk now moves for summary judgment on the four state law claims, as well on the claim seeking declaratory judgment of noninfringement and invalidity of the '036 patent.
The state law counterclaims arise from Wisk's publication of: a blog post on its website on April 6, 2021, made the same day it filed this lawsuit; a press release that day consisting of a paragraph explaining that Wisk filed suit, two bullet points about the allegations, and a hyperlink to the blogpost; and an “update” to that post it made on May 19, 2021 that added a paragraph stating-as relevant here-that there was an FBI and DOJ “criminal investigation into Archer relating to the theft and use of Wisk's intellectual property.” Order on Counterclaims 2:6-4:11; see also [Dkt 451-11] (“Blog Post”). My prior Order dismissing Wisk's anti-SLAPP motion to strike and its motion to dismiss the counterclaims reproduces the relevant sections of the blogpost. Order on Counterclaims 2:11-4:2. That Order also provided:
There appears . . ....
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