Wisk Aero has asked the U.S. District Court in San Francisco to grant a preliminary injunction to stop Archer Aviation from using what it says are confidential trade secrets about a planned eVTOL aircraft. The May 19 filing also seeks orders requiring Archer to provide full access to evidence for the trial due to start on July 7 in which Wisk will allege that the rival start-up has based its five-seat eVTOL aircraft on its own designs for a product that it has had in development for several years.
Meanwhile, Wisk also confirmed that the company is cooperating with an ongoing criminal investigation by the FBI and Department of Justice relating to allegations that a former employee stole trade secrets before moving to a role with Archer. This investigation was made public when Wisk first initiated its lawsuit on April 6, at which time Archer said that it had placed an unnamed employee on paid administrative leave.
The latest court filing names Jing Xue as the former employee subject to the investigation, alleging that he improperly downloaded almost 5,000 data files onto a personal device that he subsequently gave to Archer after joining the company in January 2020. It says that the data included details of aircraft systems including propulsion, electrical, power distribution and management, avionics, and flight controls, “as well as information that could be used to manufacture the aircraft.”
According to sources familiar with the case, Jing has been subpoenaed by federal investigators, and also served with a search warrant. The same source told FutureFlight that three Archer executives have also been subpoenaed as part of the investigation, and so too have members of Wisk's leadership team.
Archer has strenuously denied the allegations. In a written statement it said: “This a baseless motion in a baseless lawsuit. Archer independently designed its aircraft, before any employees from Wisk joined Archer, and Archer looks forward to demonstrating that in court. Archer is moving forward with its business plans, including the development, certification, and production of its proprietary aircraft.”
Wisk’s attorneys will argue that Archer, which they say was incorporated in 2018 and had no established workforce business premises until early 2020, could not possibly have developed such a mature design in so short a time and with such limited resources. They state that Archer’s claim that it will have an aircraft certified and in commercial service by 2024 is not feasible if it has originated the design in-house. The filing also refers to media interviews in which it says Archer co-founder Adam Goldstein publicly acknowledged the connection between its design and the work done by its new employees on the Wisk eVTOL aircraft.
A patent application made by Wisk in January 2020 is set to be one of the key exhibits in the trial, showing what the company says is its “sixth-generation” fixed-wing, lift fan eVTOL development. Though many details of the allegedly stolen trade secrets are redacted in the court filing, Wisk included drawings of the aircraft, which it says bear a striking resemblance to the design that Archer published in February 2021.
During this week's EBACE Connect webinar series, Dan Dalton, Wisk's vice president for global partnerships, said that the company expects to unveil this "six-generation" aircraft in the near future. He confirmed that it will be larger and have a longer range than the two-seat Cora model that is now participating in flight testing in New Zealand.
"The theft of our highly confidential files, the virtual copy of Wisk’s design from a confidential patent application, and Archer’s startlingly short operational history make clear that Archer’s program is built on Wisk’s intellectual property, as we outlined in our complaint,” said a Wisk spokesman. “Today, with our motion for a preliminary injunction, we are asking the court to stop Archer from using the valuable trade secrets stolen from Wisk.”
The request for a preliminary injunction also seeks orders to support "expedited discovery" of evidence relating to the case. It seeks orders for Archer, and its employees, to preserve and disclose all evidence, and to identify any individuals who have had access to the alleged trade secrets.
Wisk has requested a jury trial, but it is unclear whether it will proceed on this basis in July. The company is seeking substantial financial damages based on its claims against Archer, as well as legal fees. It is also demanding that Archer transfer legal title to Wisk of any and all intellectual property, devices, machines, software, documents or other data developed using Wisk's trade secrets.
Archer is in the process of launching an initial public offering through a merger with special purpose acquisition company Atlas Crest Corporation. This deal, which is expected to raise around $1.1 billion, is due to close by the end of June. On April 6, Atlas Crest said in an 8K filing to the Securities and Exchange Commission that it is reviewing the issue, as well as the ongoing criminal investigation.
