Court denies Wisk’s request for a preliminary injunction against Archer ahead of upcoming lawsuit trial

A fed­er­al judge in San Fran­cis­co has denied Wisk’s request for a pre­lim­i­nary injunc­tion against rival eVTOL OEM Archer.

Wisk filed the motion ear­li­er this year to stop Archer from using its con­fi­den­tial trade secrets ahead of a tri­al. The com­pa­ny began legal action against Archer last month, alleg­ing its busi­ness is ‘built on intel­lec­tu­al prop­er­ty that is not its own’ and brings claims for trade secret mis­ap­pro­pri­a­tion and patent infringe­ment.

But a rul­ing by dis­trict judge William Orrick said Wisk ‘had not shown a like­li­hood of suc­cess on the mer­its that defen­dant Archer Avi­a­tion has mis­ap­pro­pri­at­ed its par­tic­u­lar assert­ed trade secrets.’

It added: “There are some arguable indi­ca­tions of mis­ap­pro­pri­a­tion but, even if the total­i­ty of that evi­dence rais­es ‘seri­ous ques­tions going to the mer­its,’ it is too uncer­tain and equiv­o­cal to sup­port a find­ing of irrepara­ble injury based on mis­ap­pro­pra­tion or that the bal­ance of hard­ships sharply favours Wisk.”

Accord­ing to the fil­ing sent to the fed­er­al court in the North­ern Dis­trict of Cal­i­for­nia in April, the law­suit fol­lows Wisk’s dis­cov­ery of sus­pi­cious file down­loads by for­mer employ­ees who left the com­pa­ny to work for Archer, includ­ing thou­sands of files relat­ed to Wisk’s con­fi­den­tial air­craft, com­po­nent and sys­tems designs, man­u­fac­tur­ing and test data.

Addi­tion­al­ly, Wisk has said Archer’s recent dis­clo­sure of an air­craft design appears to be a copy of a design it devel­oped and sub­mit­ted in a con­fi­den­tial patent appli­ca­tion to the U.S. Patent and Trade­mark Office in Jan­u­ary 2020.

Wisk’s request for an expe­dit­ed sched­ule will be addressed at the Case Man­age­ment Con­fer­ence fol­low­ing the hear­ing on the remain­ing pend­ing motions on August 11th.

Archer’s Deputy Gen­er­al Coun­sel, Eric Lentell said: “The record makes it clear that Wisk has pro­vid­ed no evi­dence — not a sin­gle doc­u­ment, not a sin­gle wit­ness —that Archer ever received or used any Wisk trade secret. Wisk’s charges of mas­sive theft are based entire­ly on con­spir­a­cy the­o­ries and out­right mis­rep­re­sen­ta­tions of the actu­al record.

“Con­trary to the sto­ry Wisk craft­ed, the evi­dence in this case has also made it clear that Archer, with input from its out­side expert design con­sul­tant, eval­u­at­ed and select­ed the 12-tilt‑6 design of its Mak­er demon­stra­tor air­craft inde­pen­dent­ly, and well in advance of any effort by Wisk to devel­op a sim­i­lar eVTOL air­craft.”

Respond­ing to the result of the rul­ing last Thurs­day, a Wisk spokesper­son said: “Today’s deci­sion regard­ing pre­lim­i­nary relief has no bear­ing on the out­come of the case and does not exon­er­ate Archer in the least. We are in the very ear­ly stages of a long legal process, with in-depth evi­dence-gath­er­ing now to begin, and we ful­ly intend to hold Archer account­able at tri­al.

“We brought this law­suit based on strong indi­ca­tions of theft and use of Wisk’s IP, and the ini­tial lim­it­ed evi­dence gath­ered through the court process to date only con­firms our belief that Archer’s mis­ap­pro­pri­a­tion of Wisk’s trade secrets is wide­spread and per­vades Archer’s air­craft devel­op­ment.

“Fol­low­ing today’s rul­ing, Wisk will be allowed to begin col­lect­ing evi­dence in earnest. We will fol­low the evi­dence to where it leads, and stand firm in our years-long com­mit­ment to pur­su­ing eVTOL devel­op­ment the right way — guid­ed by inno­va­tion, integri­ty, and trust.

“We have an oblig­a­tion to pro­tect our tal­ent­ed team’s hard work, and a duty to help ensure the respon­si­ble devel­op­ment of the indus­try we helped to cre­ate. We are con­fi­dent in our posi­tion and the evi­dence uncov­ered thus far and look for­ward to the next stages of the case.”