The Future of Advanced Air Mobility

Archer Says Feds' Decision Not to Prosecute Employee Boosts Its Defense of Wisk Lawsuit

U.S federal prosecutors have decided not to charge an Archer Aviation employee, who rival eVTOL aircraft developer Wisk Aero alleged had stolen proprietary data. Wisk claimed that the data was then given to Archer after it hired him. Lawyers for Archer in an ongoing intellectual property civil lawsuit with Wisk today reported that the U.S. Attorney’s Office said it will not bring charges against Jing Xue, following an investigation by the FBI and the Department of Justice (DoJ) that started in March 2021.

According to Archer, the development will undermine “the foundational element” of Wisk’s trade secrets complaint and will favor its prospects in a trial that is not expected to start until early 2023. On July 22, 2021, the U.S. District Court for the Northern District of California denied Wisk’s motion for a preliminary injunction against Archer, triggering a full trial that will likely be heard before a jury.

Wisk refuted Archer's suggestion that a decision not to prosecute Jing will tip the civil case in the defendant's favor. “The DoJ criminal investigation has always been entirely separate from our civil litigation against Archer," the company said in a written comment on the development. "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.”

Jing was first named in a May 19, 2021, court filing by Wisk, which said that he was the subject of an FBI/DoJ investigation into allegations that he had improperly downloaded almost 5,000 data files onto a personal device that he subsequently gave to Archer after joining the company in January 2020.  On March 30, 2021, his home was searched by federal investigators looking for evidence of alleged efforts to download documents from the company’s database in late December 2020. Wisk said that the data included details of aircraft systems, including propulsion, electrical, power distribution and management, avionics, and flight controls, “as well as information that could be used to manufacture the aircraft.”

The aircraft in question is what Wisk says is its sixth-generation eVTOL design, about which it has so far declined to make public any specifications or performance details. It is working on the two-seat autonomous Cora aircraft, which has flown extensively.

“Wisk’s allegations of ‘brazen theft’ and ‘wholesale’ misappropriation made against this employee were gravely serious, and have serious consequences,” commented Archer’s chief legal counsel, Andy Missan. “At a minimum, such allegations should have been backed up by serious evidence. This outcome serves as further confirmation of what we’ve asserted from the outset of this case: Wisk’s claims lack any factual basis.”

Separately, Archer this week appointed Barbara Pilarski, who is head of business development with automotive group Stellantis, to its board of directors. Stellantis, formed from the merger between carmakers Fiat Chrysler and Peugeot, is partnered with Archer under an agreement to support the production of its planned four-passenger eVTOL vehicle using its high-volume supply chain. Archer said Pilarski will support its “go-to-market strategy” with experience in negotiating and executing strategic partnerships.

In late January, Archer appointed three new members of its technical advisory board: aerospace consultant Steve Dyer, a former senior designer and engineer with Bell Helicopter and Allison Engines; Paul Martin, a former U.S. Air Force and NASA flight test engineer and senior executive with Lockheed Martin Skunk Works and Sikorsky Aircraft; and Mark Moore, CEO of Whisper Aero and a former aviation engineering director with Uber and NASA chief technologist.