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Anthony Levandowski was charged in August with 33 counts of violating the Economic Espionage Act, accused of stealing and trying to steal trade secrets from Google when he worked at the company on its self-driving vehicle project.

The Economic Espionage Act is one of the more complicated statutes in the federal criminal code because it has so many requirements for proving a violation. The prosecution will hinge on whether the government can show that what Levandowski took constituted a "trade secret" and that he intended to harm Google's self-driving company, Waymo.

The case revolves around the downloading of files from Google's Project Chauffeur, which eventually became Waymo. According to the indictment, Levandowski transferred thousands of files about Google's autonomous-vehicle research to his personal laptop before leaving the company in 2016. He joined Uber, the ride-hailing company, later that year when it bought his new self-driving trucking startup, Otto.

In 2017, Waymo sued Uber, accusing it of stealing self-driving technology. The two companies settled the case four days into the trial, with Uber agreeing to give 0.34% of its stock to Waymo's parent company, Alphabet. The federal judge presiding over the case, however, referred the matter to the U.S. attorney's office in San Francisco to investigate whether Levandowski had violated the Economic Espionage Act.

"All of us have the right to change jobs," the U.S. attorney, David Anderson, said. "None of us has the right to fill our pockets on the way out the door. Theft is not innovation."

Miles Ehrlich, one of Levandowski's lawyers, said that "the evidence in this case is going to show conclusively that Anthony did not steal anything."

The Economic Espionage Act defines a trade secret as "all forms and types of financial, business, scientific, technical, economic or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs or codes, whether tangible or intangible, and whether or how stored, compiled or memorialized physically, electronically, graphically, photographically or in writing." That seems to cover just about all forms of intellectual property.

But for information to qualify as a trade secret, its owner must take "reasonable measures to keep such information secret" and derive "independent economic value" from its not being generally known. Prosecutors must also show that a trade secret was acquired by "improper means." That means proof it was taken by "theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means." But the law does not cover reverse engineering or any other "lawful means of acquisition."

The Economic Espionage Act also requires that the defendant knew or had reason to know that the information was a trade secret.

This year, the government charged the Chinese telecommunications giant Huawei and its U.S. affiliate with trying to steal trade secrets from T-Mobile. Huawei, according to the indictment, offered bonuses to employees who stole confidential information from other companies. That is a much more straightforward case to prove because the allegation is that Huawei misappropriated information to use for its own purposes.

In Levandowski's case, his lawyers are likely to argue that when he downloaded the materials he was still an employee of Google and was permitted to view its trade secrets.

Another likely line of defense is whether any of the information he took from Google ended up with Uber.

One requirement for proving a violation of the Economic Espionage Act is that the person taking the trade secret used it to "the economic benefit of anyone other than the owner" of the information with the intent or knowledge that it would injure the owner.

Business on 09/11/2019

Print Headline: Tech espionage trial hinges on definition of trade secrets

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