By Jen Nevans

Managing editor Jen Nevans has more than a decade of editorial experience. She is an award-winning writer and editor, receiving numerous accolades for her published articles. Jen is eager to join the eVTOL.com team and cover this exciting and growing industry.

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Archer: Prosecutors won’t charge engineer accused of stealing trade secrets from Wisk

Archer Aviation said the investigation surrounding its senior engineer accused by Wisk Aero of stealing trade secrets has ended.  

The eVTOL developer announced this morning that federal prosecutors told Archer’s attorney they won’t be charging former Wisk employee Jing Xue, who is at the center of an ongoing legal battle between Archer and Wisk.  

Archer Maker
The ongoing legal battle between rivals Archer Aviation and Wisk Aero is set to go to trial in early 2023. Archer Aviation Image

A spokesperson for Archer said in an email to eVTOL.com that the latest decision “bodes well for Archer” in the ongoing litigation where its rival alleges misappropriation of trade secrets and patent infringement.

The investigation against Xue started in March 2021, after Wisk alleged that Xue downloaded nearly 5,000 files from the eVTOL developer’s secure corporate Google Drive repository before leaving the company to work at Archer in January 2020.

Xue had denied under oath that he provided any confidential, trade secret information to Archer. But the allegations led to a nearly yearlong investigation on Xue during which time he was placed on paid administrative leave by Archer.

“We are pleased with the expeditious and thorough nature of the investigation that was conducted and the decision not to pursue charges against Dr. Xue,” said Andy Missan, Archer’s chief legal officer, in a statement issued by the company. Missan said the decision “strikes at the very heart of Wisk’s trade secret allegations against Archer.”

However, Wisk doesn’t view the latest development as a strike against its case with Archer. In an emailed statement to eVTOL.com, Wisk said the Department of Justice criminal investigation has “always been entirely separate from our civil litigation against Archer. Our case involves multiple claims based on substantial evidence of both trade secret misappropriation and patent infringement. The defendant in our case is Archer, and we remain focused on holding it accountable at trial.”

In April 2021, Wisk began taking legal action against Archer, alleging that the company stole Wisk’s proprietary information, as well as copied a design that Wisk had submitted in a confidential patent application to the U.S. Patent and Trademark Office in January 2020.

Shortly after the patent application, Archer entered the eVTOL race in May 2020, backed by a strong team — many of whom were former employees at Wisk, including Xue.

The eVTOL rivals spent the last 10 months launching legal attacks against one another, including Wisk’s motion for a preliminary injunction which would have halted Archer’s development work on its Maker aircraft. The federal judge overseeing the case dismissed the motion, stating that Wisk’s “evidence of misappropriation is too equivocal to warrant a preliminary injunction.”

But that didn’t mean Archer was cleared of all wrongdoing alleged by Wisk. When Archer filed a motion to dismiss the case, the judge stated that “Wisk’s disclosure and identification of its trade secrets are sufficient and it has plausibly alleged that Archer misappropriated at least some of them.”

Archer fired back with its own counterclaim that alleged Wisk had obtained the eVTOL design from Archer after its founders disclosed that design to Wisk’s chief engineer during a recruiting attempt in December 2019.

Archer said its Maker design was conceived by an independent firm, FlightHouse Engineering, in late 2019, before any former Wisk employees joined Archer and also before Wisk filed its patent application in early 2020.

Archer also filed a counterclaim, seeking more than $1 billion in damages against Wisk for what Missan claims as Wisk’s way of “[misusing] the judicial and criminal justice systems for the sole purpose of stifling innovation.”

The case is scheduled to go to trial early next year.

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