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When Technologies Were Stolen From You


Mariia Koval, attorney at Ilyashev & Partners Law Firm

Source: Ekonomichna Pravda

It is extremely difficult to prove the theft of technology by an employee and to assess the damages. Therefore, it is important to prevent such situations by all possible means.

The litigation between Waymo, Google’s autonomous vehicle division, and Uber promises to be one of the enormous legal battles since the dispute between Apple and Samsung.

However, this time the matter is in the former employee misappropriating the information constituting Waymo’s trade secret.

Waymo claims that its former employee, working on an autonomous vehicle project, prior to his resignation downloaded 9.7 GB technical files. After that he left the company, launched his own startup that was later bought by Uber.

The issue was about laser-based LiDAR vision censors being developed for self-driving cars.

As a justification for their claims Waymo states that the former employer installed the special software onto his company-issued laptop in order to obtain the access to the company’s server and downloaded the blueprints and design files. Apparently, the company possesses the overwhelming evidence of such actions if it files such a claim.

Definitely, the fact that Uber bought Otto – the company owned by Waymo’s former executive and possessing the technology, which Waymo has been developing for a number of years – raises a lot of questions. However, Waymo in any case will have to work hard in order to convince the court that the technology was indeed misappropriated by its former employee.

Commercial secret encompasses technical, organizational, commercial and industrial information, which is unknown and not easily accessible to persons who deal with this kind of information.

Therefore, when proving the misappropriation of technologies it is required to prove that the stolen information was not easily accessible and was protected by the regulation on trade secrets within the company.

Initial methods of valuable data protection are access security techniques. This is the storage of encoded valuable information, access denial without the special request-approval, protection from copying, files copying tracking and alert. It is a bit strange that Waymo did not pay enough attention to the protection of its secrets.

There are just a few companies in Ukraine ready to spend significant financial resources on technical information protection systems.

Important methods to prevent the misappropriation of any confidential information are the implementation of non-disclosure regime within the company and signing of non-standard labor agreements with employees.

In order to implement the non-disclosure regime of the company the director is required to approve with its order the regulation on non-disclosure, which should determine what information is confidential, valuable and not subject to disclosure.

In Ukraine and abroad almost all companies sign agreements on the non-disclosure of confidential information with their employees in the course of their employment.

Many companies set forth in such agreements that even after dismissal the employees are not allowed to disclose the information to third parties, especially competitors, which they became aware of during their term of employment.

The labor agreement itself may contain non-disclosure provisions (on trade secret).

In some countries, for example, in the US, France, Germany, the companies sign the so-called non-competition agreement with employees.

This agreement implies that the employee does not have the right in the course of several years to occupy the identical position at competitor’s company and even to organize the business. Naturally, the companies have to pay their employees a separate compensation for this.

In Ukraine, tit is impossible to sign such agreements, since their provisions violate the right to free choice of labor. However, it is possible to oblige the employee not to disclose the company’s trade secret even after the resignation.

Proving the fact of misappropriation of confidential information (trade secret) and its disclosure to third parties is very important in litigations of such kind, but often the proving is not an easy task.

For the purpose of proving the misappropriation of information by an employee, any available methods may be used: fixing of copying and forwarding of the documents, witness testimony, identification of documents or technical media with stored documents and video records during the search.

Of course, in such cases it is preferable to conduct criminal investigation during which it is required to check the telephones of the employees or persons involved into the fraud, to interrogate everyone who may also be involved into the case.

It should be noted that it is extremely difficult to prove the misappropriation of technologies by an employee and even to assess the damages caused by its use by another person. Therefore, it is important to prevent such situations by all possible means.

The issues of trade secret raise a lot of attention lately in Ukraine. The companies sign the corresponding agreements with their employees and try to ensure technical protection of their valuable information.

Also, it will be interesting to follow the development of Waymo-Uber process: how will Waymo be prove (and whether it will be able to prove) the misappropriation of its technologies by former employee. In any case, this will be an interesting world precedent in the proceedings concerning misappropriation and the disclosure of trade secret.


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