The Future of Advanced Air Mobility

Wisk Sues Archer, Alleging Theft and Patent Infringement Over eVTOL Aircraft Design

Wisk Aero today filed a lawsuit against rival eVTOL aircraft developer Archer Aviation for alleged theft of trade secrets and patent infringement. The case (No. 5:21-cv-02450) filed in the U.S. federal court for the Northern District of California seeks an injunction to stop the use of what Wisk says is its intellectual property and “other remedies” against Archer.

In a written statement, a spokesperson for Archer said that the company intends to defend itself vigorously in the case. “It’s regrettable that Wisk would engage in litigation in an attempt to deflect from the business issues that have caused several of its employees to depart,” the spokesperson said. “The plaintiff raised these matters over a year ago, and after looking into them thoroughly, we have no reason to believe any proprietary Wisk technology ever made its way to Archer.”

In the filing, Wisk alleges that it discovered suspicious file downloads by “certain former employees” who left the company to work for Archer. It says that these included thousands of files related to Wisk’s confidential designs for aircraft, components, and systems, as well as manufacturing and test data.

More specifically, Wisk’s lawsuit claims that an aircraft design recently published by Archer appears to be a copy of a design for which Wisk submitted a confidential patent application to the U.S. Patent and Trademark Office in January 2020. This design was published in conjunction with the announcement on February 10 of Archer’s plans for an IPO merger with special purpose acquisition company Atlas Crest Corporation.

This $1.1 billion deal is expected to close in the second quarter of 2021. On the same day that the merger was announced, United Airlines signed a provisional agreement under which it may buy up to 200 of Archer's eVTOL aircraft to carry passengers to and from its hub airports.

Archer was launched by tech entrepreneurs Adam Goldstein and Brett Adcock in late 2019. The company recruited no fewer than 20 former members of Wisk’s engineering team, including Tom Muniz, who is now v-p of engineering and a board member. Muniz joined Archer in December 2019 and between January 8 and 14, 2021, the company recruited another 10 engineers from Wisk. It also hired 14 engineers from Airbus, including chief engineer Geoff Bower.

According to the lawsuit, Archer recruited 10 of Wisk’s engineers in the same month that Wisk submitted its patent application. This prompted Wisk to commission a probe into possible security breaches. According to Wisk’s attorneys, this investigation found that one of the recruited engineers “surreptitiously downloaded thousands of files near midnight, shortly before he announced his resignation and immediately departed to Archer.” These files allegedly contained confidential information about Wisk’s aircraft development plans.

The investigation’s findings also included what Wisk’s legal team says is further evidence of premeditated theft of intellectual property. It includes allegations that one of the recruited engineers downloaded more than 3,400 files on Christmas Eve using a Wisk-issued laptop computer and, separately, USB drives and a private network connection to Wisk’s Drive account.

Archer said it has placed an unnamed employee on paid administrative leave in connection with a “government investigation” and a search warrant issued to the employee that the company said it believes relates to conduct prior to that employee joining Archer. “Archer and three other Archer employees with whom the individual worked also have received subpoenas relating to this investigation, and are all fully cooperating with the authorities,” said the company spokesperson.

The issuing of a search warrant in relation to a government investigation means that a criminal investigation is underway, whereas a subpoena would relate to civil proceedings. "We are aware of Archer's disclosure into this matter and are fully cooperating with the government," said a Wisk spokesman in a written statement

The lawsuit does not name the engineers involved in the alleged theft of intellectual property. However, it does specifically reference several media interviews with Goldstein and Adcock in which they acknowledge their engineering team’s experience at Wisk to be the foundation for their eVTOL design. Referring to the former Wisk engineers’ contribution to the Archer design as “the sixth aircraft that they’re building,” Goldstein reportedly commented that “it’s not a question to us whether the technology works, you can literally just go to the Wisk can see these vehicles work.”

Wisk, a joint venture by Boeing and Kitty Hawk, is working on a two-seat, fully autonomous eVTOL aircraft called Cora. The company provided more background on the lawsuit in a blog post published today that included side-by-side representations of the design included in its January 2020 patent application and the drawings in Archer’s investor deck from February 2021.

Archer's as-yet-unnamed eVTOL aircraft is intended to carry four passengers and a pilot when it enters commercial service from 2024. Wisk has not made any comment as to what its intentions might be for the disputed design, which is clearly for a larger aircraft than the Cora.

Pitchbook mobility analyst Asad Hussain said that the lawsuit is reminiscent of the dispute between Google's Waymo self-driving vehicle business and Anthony Levandowski, the engineer who left the company to form autonomous truck company Otto, which he subsequently sold to Uber. In August 2020, he was sentenced to an 18-month prison sentence for trade secrets theft and is suing Uber for $4.1 billion. "To me, it is an indicator that–similarly to the autonomous driving industry–it may no longer be viable to start from scratch, given where we are in the investment cycle and timeline expectations," Hussain told FutureFlight.

According to a source familiar with the situation, the exodus of engineers from Wisk coincided with a period of uncertainty surrounding Boeing's commitment to the company and financial pressures related to the long-running grounding of its 737 Max airliner. The source told FutureFlight that it is "not uncommon for issues like this to arise" when large numbers of employees move from one company to a rival. In September 2020, Boeing announced its intention to close its Boeing NeXt technology development unit but said that it intended to retain its holding in Wisk.