It would seem that Archer’s legal team has been browsing The Art of War by ancient Chinese military strategist Sun Tzu. “Attack is the secret of defense,” he wrote back in the fifth century B.C., or, as it is commonly paraphrased in English, “Attack is the best form defense.”
Fast forward 2,500 years to 21st century Silicon Valley and attorneys representing the eVTOL aircraft developer against allegations of trade secrets theft by its rival Wisk this week tried to throw the charges back in the plaintiff’s face. In an opposition filing late on June 23 with the federal court for the Northern District of California, the Archer legal team essentially claims that Wisk applied to patent its design for a tilting rotor aircraft in January only after its chief engineer Geoff Long had made the company aware of Archer’s design.
How did Long know about Archer’s plans? Because on Dec. 9, 2019, he was in a job interview with Archer’s co-founders, who shared details of the design with him. He opted to stay with Wisk and, according to Archer, tipped off his CEO, Gary Gysin, and chief technology officer, Jim Tighe, about Archer’s plans.
Wisk’s former vice president of engineering, Tom Muniz, accepted an offer to join Archer with the same title and is now its chief operating officer. He testified that at the time he left Wisk he “was unaware of any development project or efforts by Wisk for a tilting rotor aircraft of any configuration.”
The June 23 court filing, made two weeks before the court in San Francisco is due to start hearing Wisk’s lawsuit on July 7, also tackles the allegations that another former Wisk employee, Jing Xue, stole thousands of data files from the company and passed these along to its new employer, Archer. According to the Wisk narrative, Xue disrupted his Christmas holiday plans in December 2019 to frenziedly download almost 5,000 data files that he subsequently gift-wrapped for his new employer, Archer.
With prospects for an out-of-court settlement fading daily, it seems that a judge and jury will be left to untangle these claims and counterclaims. Still unconfirmed is the current status of a reported FBI and Justice Department investigation into possible criminal matters associated with the case.
Wisk firmly refutes the latest rebuttals from the rival eVTOL start-up. “Archer’s latest filing is full of inaccuracies and attempts to distract from the serious and broad scope of misappropriate claims it faces,” the company said in a written statement on June 24. “The filing changes nothing. We look forward to continuing our case in court to demonstrate Archer’s improper use of Wisk’s intellectual property.”
The new opposition filing seems to mark a shift in tactics by the Archer legal team. Initially, their main arguments appeared to be that the company had been working on its plans for a four-passenger eVTOL aircraft since October 2018 and that the design had been substantially advanced with FlightHouse Engineering, which it hired as a consultant in September 2019. This narrative was deployed to counter claims by Wisk that Archer had essentially made no substantive progress with the program until it got its hands on Wisk’s secrets by luring at least 17 former Wisk employees with the prospect of fat paychecks to make a seven-mile job switch from Mountain View to Palo Alto.
More seriously, the main arguments laid out in the 32-page filing start with the claim that Wisk’s lawyers have yet to establish any actual trade secrets that could have been misappropriated, cannot prove that misappropriation happened, and cannot show that the company has, therefore, suffered the “irreparable harm” claimed in the lawsuit filed in April.
Based on testimony in the opposition filing, Muniz, Long, and Xue seem set to be key witnesses. Xue denies that he ever transferred secrets or confidential proprietary documents to Archer.
For close observers of the eVTOL start-up scene, Archer’s latest court filing is a treasure trove of detail on the players behind the company’s meteoric rise to the cusp of a $1.1 billion merger with special purpose acquisition company Atlas Crest Investment Corp. This merger is now expected to close in September, which is around three months later than anticipated.
We also discover from the document that the five-blade propellers and V-tail configuration in the Maker technology demonstrator unveiled by Archer earlier this month were conceived by industrial designer Frank Stephenson, who formerly worked with car giants Ferrari and BMW, as well as with German eVTOL start-up Lilium.
Archer also revealed that it intends to use the Magidrive integrated motor and motor control package developed by Magicall, which supplied the electric propulsion unit for Airbus’s Vahana eVTOL technology demonstrator. Batteries for Archer’s eVTOL are being provided by Electric Power Systems and Lithios Energy. Other program suppliers disclosed in the court filing are Safran for inertial reference systems, Curtiss-Wright Corp. for flight control computers, and Aeroprobe for air data computers.
For reporters trying to follow the seemingly opaque world of new advanced air mobility technology and the gold rush to bring eVTOL aircraft to market, court proceedings like this have provided welcome clarity. Neither Wisk nor Archer has previously shared anything like this level of detail on their plans. Had they been more transparent all along, it might not now be left to lawyers to argue over the tortured history of who came up with which brilliant set of ideas first. And history, as they say, is always written by the winners.
FutureFlight does not pretend to know who the winner will be in this case, but someone might be wise to consider buying the movie rights now.