Wisk v. Archer: Inside a Bitter eVTOL Trade Secret Lawsuit

After more than seven months of legal twists and turns, FLYING took a deep dive into the lawsuit’s allegations—and the aircraft designs—by pouring through court documents and consulting with two veteran patent attorneys. 

Documents in the case—which is being heard in San Francisco’s U.S. District Court, Northern District of California—reveal a verbal dissing match, complete with snarky accusations and so many legal filings that the judge has told both sides to focus “on what really matters.”

If you haven’t been following this fascinating case, let’s bring you up to speed. 

In April 2021, Wisk filed a federal lawsuit accusing Archer of patent infringement and trade-secret misappropriation. Wisk’s legal complaint alleged Archer of the “brazen theft” of “intellectual property and confidential information” surrounding Wisk’s prototype electric vertical takeoff and landing (eVTOL) aircraft. Archer has denied any wrongdoing.

The next month, Wisk filed a motion for a preliminary injunction, asking the judge in the case— William Orrick III—to order Archer to stop using what Wisk claimed were stolen trade secrets. Essentially, the injunction would have blocked Archer from developing its prototype eVTOL aircraft, dubbed “the Maker.” Archer responded by accusing Wisk of launching a “knowingly false extra-judicial smear campaign” that defamed the company and resulted in $1 billion in damages. 

In July, Judge Orrick denied Wisk’s motion for an injunction, saying he wasn’t convinced by Wisk’s evidence. As Orrick put it: “Wisk has not shown a likelihood of success” of proving that Archer misappropriated trade secrets. “Although,” Orrick added, “there are some arguable indications of misappropriation, Wisk’s evidence is, at best for it, equivocal.”

With this victory, Archer filed a motion asking the court to dismiss the case. The judge didn’t agree. In Orrick’s words: “Wisk’s disclosure and identification of its trade secrets are sufficient and it has plausibly alleged that Archer misappropriated at least some of them.”

So essentially, both sides have scored victories. But clearly, the case is far from over. 

Archer and Wisk come to the battlefield after raising hundreds of millions in investor capital— seed money intended to claim a piece of a market projected to be worth $1.5 trillion by 2040. 

The intensity of the case is evident in the biting and bluntly worded attacks sprinkled throughout the official court documents: “[Archer’s co-CEOs Brett] Adcock and [Adam] Goldstein lacked any meaningful technical experience developing eVTOL aircraft when they founded Archer,” Wisk contends. “Instead, the two raided the workforces of more experienced companies.”

Archer’s lawyers have taken swipes at Wisk, describing the case as “an improper and malicious attempt to disrupt Archer’s momentum, as a means to compensate for its own lack of success,” and stating, “Wisk has lacked a focus on bringing to market aircraft that were commercially viable.”

In Judge Orrick’s view, “the heart of this dispute” revolves around how Archer’s Maker aircraft was developed. 

Wisk has labeled Archer’s development timeframe suspicious. “Despite apparently having no meaningful operations as of January 2020, just over a year later, Archer announced it would have an eVTOL aircraft ready within months. Other competitors took years to get to that stage.” 

Archer plans to test-fly Maker for the first time in December. Wisk’s eVTOL prototype Cora has been flying since 2018, although the company has yet to bring an aircraft to market.

But Wisk’s accusations go well beyond the development timeline to an alleged incident that sounds like it was lifted from an espionage novel. 

On December 25, 2019, former Wisk engineer Jing Xue allegedly downloaded near midnight “thousands of Wisk confidential files from an outside IP address,” according to court documents. Wisk says Xue’s alleged download “occurred one week after Archer contacted him,” and that Xue gave the stolen files to Archer after joining the company in January 2020.

Not true, says Archer, which—according to court documents—has made “Xue’s written denials under oath the centerpiece of its defense.” These same documents, however, indicate that Xue has refused to be deposed by Wisk’s attorneys, citing his Fifth Amendment right.

The same month that Xue joined Archer, Wisk submitted a patent application for its next-generation eVTOL—while Archer recruited and hired 10 of Wisk’s engineers.

Wisk, concerned about the alleged recruiting, says it hired a third party to conduct a forensic investigation. “What it discovered was unsettling,” Wisk attorneys write in court documents. “Those files [allegedly copied by Xue] contain immensely valuable trade secrets.”

The recruiting and hiring of Wisk engineers doesn’t necessarily prove anything, according to patent attorneys who reviewed documents in the case. To win, Wisk needs to prove that Archer was aware trade secrets were involved in the design for Maker. 

The case points to a workforce dynamic said to be rife in Silicon Valley: employees job-hopping from one company to a competitor. 

U.S. companies often try to fight job-hopping by making new employees sign noncompete agreements, promising not to jump ship and join rival firms. However, California largely does not recognize noncompete agreements. Attorneys say job-hopping is a factor in a significant number of patent and trade secret lawsuits.

At first glance, the visual similarities between Wisk’s next generation eVTOL and Archer’s Maker seem obvious. But patent attorneys say that doesn’t even begin to prove Wisk’s allegations. 

The basic configuration of Wisk’s Cora design dates back to 2010, when eVTOL startup Levt Inc.—backed by Google co-founder Larry Page—changed its name to Zee.Aero.

Around that time, Zee.Aero was testing an eVTOL design called Grits. Like Archer’s Maker, Grits featured a V-shaped tail and a single, high-mounted, fixed wing with 12 rotors. Some of those rotors tilted from vertical to horizontal, allowing the aircraft to transition from hovering to flying horizontally like an airplane.

Next, Zee.Aero and Boeing-backed sister company, Kitty Hawk Corp., merged to form Kitty Hawk. Kitty Hawk continued to use the V-tail as well as the single, fixed-wing, 12-rotor configuration on future aircraft. 

Kitty Hawk spun off a new company called Cora Aero, which was renamed Wisk Aero. 

In 2018, according to court documents, Wisk unveiled its eVTOL prototype known as Cora. Cora sported a single, high-mounted, fixed-wing outfitted with 12-rotors. In January 2020, according to court documents, Wisk filed a confidential, provisional patent application that included an “Aircraft with Tilting Fans.” Wisk’s next-generation design included a V-shaped tail. 

A year later, Archer revealed its eVTOL design for Maker as part of a deck presentation for investors. Wisk alleges the similarities between Maker and Wisk’s 2020 patent application support its case. 

Before Maker was conceived, Archer was working on a different eVTOL aircraft, Judge Orrick says in court papers. But Archer “developed doubts” about that design and hired FlightHouse Engineering, a company that works on eVTOL designs. FlightHouse informed Archer that its aircraft was not capable of meeting “mission objectives.”

Archer says the decision to create a new eVTOL design with 12 rotors did not come from Wisk but from FlightHouse. Archer hired FlightHouse in September 2019, months before it hired the former Wisk employees. Archer further counterclaims that it disclosed its confidential design for Maker to Geoff Long, a senior engineer at Wisk, during a recruitment meeting Long had with Archer’s CEOs in December 2019. Court documents allege that Long subsequently told Wisk’s CEO and chief technology officer about Archer’s plans for a 12-rotor tilting design. Weeks later, on January 31, 2020, Wisk filed its provisional patent application, which contained the 12-tilt-6 design, the court document states. 

Archer submitted this slide, pictured below, in a court document, which includes a reference to FlightHouse at the bottom, circled in red by Archer. 

Wisk has rejected this defense in court documents. “Archer’s claim to have ‘independently developed’ its aircraft is a fairy tale,” Wisk attorneys write. 

Wisk has chosen to include Maker’s wing design in its extremely detailed complaint. According to Wisk’s complaint, its patent specifies “a port side wing coupled to the fuselage” and “a starboard side wing coupled to the fuselage.”

“The Maker aircraft comprises ‘a custom-designed, high-aspect ratio wing that generates lift in cruise,’” Wisk contends. “The wing is comprised of two portions that are coupled to the fuselage and extend outward from each of the ‘port’ and ‘starboard’ sides of the aircraft.”

Wisk’s complaint also points out that both designs include air inlets on each of the six booms. “Airflow generated by the rotor is directed through the air inlet.”

The designs for both eVTOLs also include V-shaped tails—a configuration that is not unique in the aviation world. 

As fans of the iconic Beech Bonanza know, the V-tailed Model 35 dates back to 1947. More recently, the Cirrus SF50 Vision Jet also features a V-tail. That type received FAA certification in 2016. 

The V-tail on Archer’s design is part of “the same overall aircraft configuration that is disclosed in Wisk’s January 2020 patent application, which has not been publicly disclosed,” Wisk states in court documents.

Archer’s defense: Maker’s V-tail was first suggested by its contracted industrial designer Stephenson, who was asked to “work on the overall look and feel of the Maker aircraft aesthetically.” The designer chose the V-tail “to make the overall aircraft look more appealing,” Archer’s attorneys say. 

Wisk also accuses Archer of misappropriating a design for a system to manage electricity created by eVTOL batteries. Archer denies that. To defend itself, Archer filed court documents from a third party that say it created the battery system management architecture—not Wisk.

In court documents, Archer denies any wrongdoing regarding any Wisk patents or alleged trade secrets in the case. 

Proving trade-secret theft isn’t the same as proving patent infringement. In a patent case, if Company A has a patent that specifically defines steps 1, 2, and 3, and Company B uses those same steps, it doesn’t matter whether Company B came up with the same steps independently. Company A’s patent blocks Company B from using those steps.

In a trade secret case, if Company A independently comes up with the same idea as Company B—without stealing it from Company B or misappropriating it—that’s perfectly fine. Trade secret protection doesn’t protect a company from someone else coming up with the same idea.

Many details surrounding the alleged trade secrets have been blacked out from the court documents because the nature of trade secrets is that they remain confidential—not just hidden from the public, but also from the opposing side in the case. Experts say Wisk is likely being very careful and strategic about what trade secret details it is revealing to Archer.  

Experienced patent attorneys say trade secrets often are fiercely litigated because each side desperately wants to protect its information. Hard-fought, back-and-forth battles about which side must show their cards first is a large part of this kind of litigation. In a case like this, that dynamic can add complicated elements to every legal move.

The fact that Wisk v. Archer is taking place against a background of disrupted technology could be an important factor in how the case plays out. 

Sometimes history creates unique moments as an industry matures to a critical point. Suddenly, several people will randomly and coincidentally hit upon the same idea at about the same time. 

Someone who solves a problem after working on it for years will be very suspicious when their competitor seems to solve it out of the blue. In the early 1900s, for example, Orville and Wilbur Wright had several competitors. 

Patent attorneys say this kind of thing happens every so often and it turns out that no wrongdoing was involved. 

Experts say it’s unlikely a trade secret case will reveal a so-called “smoking gun.” 

Attorneys who have tried similar cases say that scenario is rare. More typically, a plaintiff suspects something isn’t right and files a lawsuit. 

But figuring out the truth is usually challenging. And the people tasked with deciding the case are members of a jury.

Obviously, the U.S. system of litigation relies on each side of a case to present their arguments. Lawyers for Archer and Wisk will have to convince the judge—and ultimately the jury—that patents wereinfringed or trade secrets were misappropriated.Arguably the heaviest burden rests on the jury. Despite the likelihood that the jury in this case will not be experts in aviation, aeronautical engineering, or patent law, it will be their responsibility to figure out the verdict. 

Experienced patent attorneys acknowledge that if their argument surrounds a claim that’s highly technical, such as aeronautical engineering, reaching a verdict is often very difficult for a jury. They won’t necessarily know anything about the details, or even the generalities of the subject matter they’re being asked to decide.

With billions of dollars in investments on the line and potential revenue hinging on Wisk v. Archer, that’s a sobering thought. Obviously, jury selection in a patent or trade secrets case can make all the difference. 

Orrick comes to the case with a respectable amount of experience overseeing a wide variety of lawsuits. Serving his current role since 2013, Orrick earned his bachelor’s degree at Yale and his law degree at Boston College Law School. He held leadership roles in the Georgia Legal Services Program in Savannah, Georgia, before working in private practice in San Francisco. Prior to his confirmation as a federal judge, Orrick served as deputy assistant attorney general in the U.S. Department of Justice. 

Orrick has developed a reputation for managing his trials well and mitigating any grandstanding or fireworks that traditionally create distractions in high-profile cases. Patent attorneys, who have tried cases overseen by Orrick, describe the judge as smart and “gentlemanly.”

“It seems very clear to me that Archer is on notice of what Wisk is claiming in this case,” Orrick said at the end of a hearing in August, according to Law.com. “The question is, is this a plausible complaint? Based on the facts as I read them in the complaint, as they are alleged, I think they’re plausible.”

Orrick has reminded attorneys on both sides to maintain some perspective because the court may have to consider a huge amount of evidence.

“I can’t imagine trying six patents and 52 trade secrets,” Orrick says, “so you all ought to be thinking about what it is that really matters.”

In addition to attorney fees, Wisk is demanding “monetary damages in an amount to be proven at trial,” as well as “exemplary damages in an amount equal to two times the amount of its compensatory damages...because Archer’s misappropriation was willful and malicious,” according to Wisk’s complaint.

Both companies express optimism about their chances of winning. “We’re very happy with the court’s recent rulings with the preliminary injunction and we think the outcome for Archer will be very favorable,” says Archer’s co-CEO Goldstein, in an interview with FLYING.

“We are in the very early stages of a long legal process…and we fully intend to hold Archer accountable at trial,” Wisk said in a July statement.

A jury trial has been set for January 30, 2023—more than a year away. Between now and then, virtually anything could happen.