Surprises

by Mike Masnick


Filed Under:
lidar, self-driving cars, william alsup

Companies:
google, uber, waymo



Judge Alsup Wants Uber & Waymo To Teach Him How To LiDAR Prior To Self-Driving Car Case

from the will-judge-alsup-design-his-own-lidar? dept

Judge William Alsup certainly continues to make himself known for how he handles technology-intensive cases. In techie circles, he's mostly known for presiding over the Oracle/Google Java API copyright case, and the fact that he claimed to have learned to program in Java to better understand the issues in the case (in which he originally ruled, correctly, that APIs were not subject to copyright protection, only to be overturned by an appeals court that simply couldn't understand the difference between an API and functional code). He's also been on key cases around the no fly list and is handling some Malibu Media copyright trolling cases as well.

And, last month, he was handed another big high-profile case regarding copying and Google: the big self-driving car dispute between Google's (or "Alphabet's") Waymo self-driving car company and Uber. In case you weren't following it, Waymo accused a former top employee of downloading a bunch of technical information on the LiDAR system it designed, only to then start his own self-driving car company, Otto, which was then bought up by Uber in a matter of months. Most of the lawsuit is focused on trade secrets, with a few patent claims thrown in as well.

Either way, Judge Alsup appears to want to be educated on LiDAR before the case begins. In two orders last week, Judge Alsup first asked lawyers for each side to present a basic tutorial on the basics of self-driving car technology:

For a tutorial for the judge, counsel shall please make presentations to set forth the basic technology in the public domain and prior art bearing on the trade secrets and patents at issue on the motion for provisional relief. Please do not refer to the actual systems or subsystems used by either party. (Those will be presumably covered in the motion papers.) For the tutorial, please refer only to what is in the public domain or prior art, regardless of whether or not one side or the other actually practices it. That is, in the tutorial, please do not say what the parties actually practice but if the item is in the public domain, you may reference the public domain part, even if one side or the other practices it. Make sure that all points in the tutorial reside in books, treatises, articles, public interviews, public videos, blogs, websites, seminars, presentations, Form 10-Ks, or other publicly verifiable sources. Please exchange approximate scripts beforehand so that each side may vet the other. Each side will have forty minutes on APRIL 12 AT 10:00 A.M. The public may attend the entire presentation. The judge is interested in learning the basic technology and learning publicly known art.

I'm kinda disappointed that I've got something else that I can't get out of that day so that I can't attend. Oh, and Judge Alsup also got some press attention for then asking that each side might want to send "young lawyers" for the tutorial:

This would be a good opportunity for a young lawyer to present in court.

Of course, Judge Alsup actually has a bit of a history of doing similar things. If I remember correctly, he made a similar suggestion in the Oracle/Google case as well, and people have noted he's done it before as well. The idea is that he wants to encourage firms to enable younger, less experienced lawyers to get more courtroom experience and find areas where you don't necessarily need the veteran partner, even in a high-profile clash among mutli-billion dollar behemoths.

Still, it was another request that came a few days later that has gotten more attention (first spotted by Julia Carrie Wong), in which Judge Alsup also asked each side to recommend a book for him to read about LiDAR. But not just any book. You see, Judge Alsup wants you to know that he's not a total noob when it comes to light and optics, so don't feel the need to send him "LiDAR for Dummies" or whatever:

The judge requests each side to name one (and only one) book, treatise, article or other reference publicly available that will inform him about LiDAR, and particularly its application to self-driving vehicles.

Please keep in mind that the judge is already familiar with basic light and optics principles involving lens, such as focal lengths, the non-linear nature of focal points as a function of distance of an object from the lens, where objects get focused to on a screen behind the lens, and the use of a lens to project as well as to focus. So, most useful would be literature on adapting LiDAR to self-driving vehicles, including various strategies for positioning light-emitting diodes behind the lens for best overall effect, as well as use of a single lens to project outgoing light as well as to focus incoming reflections (other than, of course, the patents in suit). The judge wishes to learn the prior art and public domain art bearing on the patents in suit and trade secrets in suit.

Now I'm just waiting to find out that Judge Alsup, tinkering alone in his garage (or, better yet, at the Courthouse), will build his own damn LiDAR system, just to better understand the technology at play.

I don't always agree with Judge Alsup on stuff (I don't always agree with anyone), but I respect his desire to go deep in trying to understand the core technologies when he's reviewing cases on those subjects. That's (unfortunately) quite different than many other judges. Hopefully more judges adopt Judge Alsup's practices on cases like these.


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  • icon
    Mark Atwood (profile), 29 Mar 2017 @ 3:09pm

    Neat trick, making both sides commit to what is not a trade secret

    There is a neat trick here, too.

    Once both sides have done this, neither one and nobody else gets to claim anything in these presentations as one of the "trade secrets".

    reply to this | link to this | view in chronology ]

  • icon
    TechDescartes (profile), 29 Mar 2017 @ 3:20pm

    With all due respect, Your Honor

    The last time you educated yourself on the technology and nailed both the facts and the law, you got overturned. Feel free to make analogies to bridges and muffins, but whatever you do, don't get educated on the tech. The more right you are, the worse it gets.

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 29 Mar 2017 @ 6:31pm

      Re: With all due respect, Your Honor

      Ignorant people hate being reminded of their ignorance. Arrogant people cover up their ignorance with bluster.

      Judges are more susceptible to both than most, since it's literally their job to decide what reality is -- and the facts don't necessarily have anything to do with laws.

      So when a lower court judge educates himself and renders a decision that due to a higher judge's ignorance makes no sense to that higher judge, then the judge can either exercise humility and decide that the lower judge knows the subject better -- or exercise arrogance and decide that the lower judge doesn't have a clue because his ruling makes no sense to the willfully ignorant and overturn it.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Mar 2017 @ 10:36pm

      Re: With all due respect, Your Honor

      Well that sounds rather hopeless for such a well spoken fellow like you. Are you being sarcastic? You seem to appreciate that he "nailed" it last time. Is your point that the legal system is hopeless? I don't think you believe that. What are you trying to say, I think I missed it.

      reply to this | link to this | view in chronology ]

      • icon
        TechDescartes (profile), 30 Mar 2017 @ 7:12am

        Re: Re: With all due respect, Your Honor

        The point is that Judge Alsup learned to program in Java for the Oracle v. Google case so that he better could understand the concept of APIs. He reached the correct result, finding that Google couldn't have infringed because the Java APIs are not copyrightable.

        Of course, Oracle appealed and the Federal Circuit said that APIs are copyrightable. It is clear from their opinion that they wholly lack any understanding of the nature of APIs and how they might differ from copyrightable source code. The case went back to Judge Alsup to try the case over whether Google's use of the Java APIs was a "fair use" under the Copyright Act. While the result is "correct"—Google is not liable for infringement—the Court never should have had to decide the "fair use" question at all. As Mike noted at the time,

        [F]air use was the wrong vehicle. The APIs never should have been considered copyright-eligible in the first place, just as the judge in the original trial explained in his very detailed opinion. It's only because an excessively confused federal circuit appeals court mucked things up, that the case had to go back down and be redone over fair use.

        As for the phrase "bridges or muffins," that is a reference to Senator Ron Johnson's bizarre analogy about the internet being a bridge for a dozen people but used by the public. An AC responded with the following analogy:

        The internet is like a muffin with a series of pulleys attached to its gooey center. And at the end of these pulleys are antarctic monkeys eating your Cheetos. These Cheetos determine who gets what and where with the monkeys, and data makes laps around the muffin, but only two times, so it doesn't get bunched up, because there's only one muffin to do laps around. There's also a crocodile somewhere.

        Putting it all together: Judge Alsup learned the tech and ruled correctly, only to be overturned in a ruling setting precedent that APIs are copyrightable. So, maybe he shouldn't learn the tech this time and go with "bridges or muffins" to avoid any more bad precedent.

        As for whether my comment was intended seriously, it contained the phrase "bridges or muffins". Enough said.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 30 Mar 2017 @ 7:35pm

          Re: Re: Re: With all due respect, Your Honor

          OK, I think I get your point. I am familiar with other cases as well, one that really stood out in my mind was the appeals court not understanding the concept "relative voltages". The case had a strong electrical engineering component, focused on a patent for high speed communications. Having worked in the area for some time, the idea that "there is no ground, only a reference voltage" became deeply ingrained in my psyche. The appeals court, with no understanding whatsoever, tossed it out based on their belief of the existence of an absolute ground reference, which does not exist at all. IMHO, this kind of thing happens sometimes, but it is not a reason to give up on the system. There is no better system, anywhere else. That does not mean this one is perfect, it makes mistakes all the time. In my personal opinion, it does not help to despair, even at muffins, or apple pie (another one of my favorites). Warts and all, that's our system, and most of the time it does pretty well. It's really darned hard to devise a better one, in the absence of all seeing all knowing omnipotent judges, which are hard to find.

          reply to this | link to this | view in chronology ]

  • icon
    Vidiot (profile), 29 Mar 2017 @ 3:31pm

    Sounds familiar

    He's taking a page from the idea of the Markman hearing, used in patent cases, which is used to educate the judge as to the technology in question. (One hopes.) Markman hearings can also degenerate into two-sided sales pitches, in which both parties want the judge to believe their own unique slant on the fine points... to wit, the ones that will let them prevail.

    Or, of course, he might just be exercising common sense by learning about something before opening his mouth. Wish we all could do that more often.

    reply to this | link to this | view in chronology ]

    • identicon
      Christenson, 29 Mar 2017 @ 4:17pm

      Re: Sounds familiar -- love that Alsup is doing this!

      It *is* a sort of Markman hearing...the judge wants to know enough to be able to figure out what might or might not be a trade secret.

      I seem to remember a local company simply throwing additional PCs at the problem when short of processing horsepower for the original DARPA grand challenge.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Mar 2017 @ 4:19pm

      Re: Sounds familiar

      Alsup seems to be exceeding his judicial authority by "commanding" litigants to educate him on a technical subject.
      His specific formal language is not a "request", it is a judicial order as phrased.

      Judges are expected to be experts in law, not computer technology, or biology, or urban planning, or any of a thousand other professional disciplines. Judges can not issue warrants (court orders) for personal education.

      In our adversarial justice system it is solely up to the litigants to develop and present their case in court.

      reply to this | link to this | view in chronology ]

      • icon
        TechDescartes (profile), 29 Mar 2017 @ 4:43pm

        Re: Re: Sounds familiar

        Alsup seems to be exceeding his judicial authority by "commanding" litigants to educate him on a technical subject.

        He isn't. Federal Rule of Evidence 201(b) permits the Court to take notice of adjudicative facts:

        (b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

        Rule 201(c) permits the Court to do this on its own initiative. Rule 201(d) requires a hearing. Rule 201(f) then allows the Court to instruct the jury that these facts are established.

        Excellent move by the judge.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 30 Mar 2017 @ 5:57am

          Sounds familiar

          that makes no sense

          If a judge may "notice" an undisputed fact that is already "generally known" and "readily determined" --- what the he|| has that got to do with a judge commanding special education procedures for himself on any topic?

          reply to this | link to this | view in chronology ]

          • icon
            TechDescartes (profile), 30 Mar 2017 @ 7:23am

            Re: Sounds familiar

            This is not a "special education procedure." It is a hearing, which is required by Federal Rule of Evidence 201(e) before the Court can take judicial notice (I errantly cited Rule 201(d) above):

            Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.

            If you were a party to the case, wouldn't you want an opportunity to tell the judge why he should or shouldn't take judicial notice of a particular fact? If there is a "reasonable dispute", the Court has to decline to take judicial notice.

            reply to this | link to this | view in chronology ]

      • icon
        orbitalinsertion (profile), 29 Mar 2017 @ 6:07pm

        Re: Re: Sounds familiar

        In that case, we can simply dispense with litigating over highly technical things at all. In order to avoid ruling by being fooled better by one side.

        reply to this | link to this | view in chronology ]

        • icon
          TechDescartes (profile), 29 Mar 2017 @ 7:03pm

          Re: Re: Re: Sounds familiar

          No, you're overlooking that the court may judicially notice only facts that are "not subject to reasonable dispute." If there is a reasonable dispute, only the factfinder can decide that fact (usually a jury, if one has been demanded, or the court, if it is a bench trial).

          However, as Mark Atwood noted above, the court will be able to point to everything in this hearing as general industry knowledge and thus not an issue to fight over. It's a good strategy.

          One correction to my comment above: Rule 201(e) requires a hearing. Rule 201(d) states that the Court can take judicial notice "at any stage of the proceeding." There is no requirement that this wait for trial.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 30 Mar 2017 @ 6:19am

          Re: Sounds familiar

          Litigation is optional.

          Plaintiff must individually decide if his case is valid, if he will be able to convince a judge/jury of that, and if it is worth the time/money to litigate that case at all.

          Also, initial assumptions can be wrong about which specific laws apply to a specific litigation... and how such laws might be interpreted in a specific case.

          Also possible/probable that technically ignorant legislators enacted stupid laws that can not be reasonably understood and applied by judges/juries. Judges or juries decide if the law itself is valid.

          reply to this | link to this | view in chronology ]

      • icon
        Not an Electronic Rodent (profile), 30 Mar 2017 @ 12:51am

        Re: Re: Sounds familiar

        Judges are expected to be experts in law, not computer technology, or biology, or urban planning, or any of a thousand other professional disciplines

        ...But if he were ruling on a case of theft, you'd want him to have a knowledge of the concept of property ownership first, right?

        "As you can see, judge, we clearly have the receipts for the car and the video footage of plaintiff breaking into the garage and driving away with the vehicle"

        "Yeah, but you weren't using it at the time, right? What did you need it for? Case dismissed!"

        reply to this | link to this | view in chronology ]

      • identicon
        Annonymouse, 30 Mar 2017 @ 9:19am

        Re: Re: Sounds familiar

        So what does the color 9 smell like to you?

        reply to this | link to this | view in chronology ]

  • identicon
    Châu, 29 Mar 2017 @ 4:32pm

    Awesome judge

    I wish judges here follow Judge Alsup. Better trials and better decisions.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Mar 2017 @ 6:25pm

    Firstly, maybe Allsop should say "novice lawyers" or similar to avoid accusations of age discrimination?

    Secondly, does it matter in the long run? Whoever loses will appeal. The court hearing the appeal will base their verdict on a coin flip.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Mar 2017 @ 6:45pm

    Best possible outcome

    The best possible outcome is that Judge Alsup invents a better LIDAR system during the trial and both sides end up using his.

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 30 Mar 2017 @ 6:08am

      Re: Best possible outcome

      In that movie Judge Alsup would be interpreted by Stallone.

      reply to this | link to this | view in chronology ]

    • icon
      RonKaminsky (profile), 30 Mar 2017 @ 11:32am

      Re: Best possible outcome

      From what we've heard about him on the podcasts, the legal journalists who cover his cases should convince a patent troll to sue on a noise cancellation patent, so he'll end up inventing something which would prevent noises from the gallery from disturbing him.

      reply to this | link to this | view in chronology ]

    • icon
      Oblate (profile), 31 Mar 2017 @ 7:21am

      Re: Best possible outcome

      More likely:

      Judge Alsup invents a better LIDAR system during the trial and both sides end up...

      suing him.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Mar 2017 @ 10:30pm

    Good article about an interesting judge. I have also heard from many that the appeals court carries it's own bias, but that should not dissuade judges (or others) from doing their best to make informed opinions. We should all be so studious.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 30 Mar 2017 @ 6:07am

    I'm going to pick up something slightly off topic here:

    "For the tutorial, please refer only to what is in the *********public domain********* or prior art, regardless of whether or not one side or the other actually practices it." (emphasis mine)

    Basic optics has been around since ancient Egypt so it's ok but Lidar related stuff? Diodes? That's life plus eternity. No public domain for thee!

    (I'm grossly simplifying matters, my intention is just to bring some focus on the pillage of public domain that intellectual property is)

    reply to this | link to this | view in chronology ]

  • icon
    John85851 (profile), 30 Mar 2017 @ 9:53am

    Why bother learning?

    Like a lot of posters have said, why bother learning all this stuff to make a ruling when the appeals court may overturn it?
    It would be better if the judge *was* the appeals court so no technology-ignorant court could over-rule him.

    reply to this | link to this | view in chronology ]

  • identicon
    Random Dude, 6 Apr 2017 @ 1:30am

    Google's patents are worthless for 3 reasons.

    1. All 3 patents were filed in 2013.

    LIDAR for self driving cars was around a long time before Google started work on anything. The DARPA self driving car challenges, which used LIDAR among other sensors, were going on much earlier than the 2009 Google started doing car stuff. Specifically look at the DARPA 2007 Challenge.

    Google started out using Velodyne's LIDAR and they didn't want to pay the $75,000 it cost for the high-end unit so they developed their own. They didn't really come up with anything novel. One thing they did was use a single lens instead of the 2 lenses (or more depending on the model) that Velodyne specifically used (in the models at the time) but that's not really much of an invention and doesn't give them much of anything. Their other "inventions" are pretty generic, they just wanted more patents under their name.

    They say they got the cost down to 10% of the old cost. Read their claim carefully. Now look at the cost of modern LIDAR, it is 10% of what it was before. They really aren't saving much using their own at this point.

    2. Because their patents can't and don't cover LIDAR overall and because they came out well after SICK and Velodyne were making self-driving car LIDAR, it is trivial to work around them. Their "single lens patent"? Ok, use 2 lenses with a different transmit and return path. That's how other LIDARs work. No problem with it. Now you don't fall under the patent. Same with the others. LIDAR existed way before Google started on it and they didn't invent anything magic. Easy to not use their patents.

    I don't even know if Otto uses a single lens or any of the other "Google patent" stuff. If you look at their self driving cars, the LIDAR is only one component. They have a ton of cameras on the cars.

    3. The future isn't spinning lasers around with lenses. The future is solid state lidar. And none of Google's patents have anything to do with that. 3 years down the road, the patents will be as valuable as a patent on buggy whips with a single tassel.


    This patent lawsuit is about making sure Google employees know they will get their asses sued if they leave the company for a competitor. Their claims of trade secret theft are all about documents people downloaded while they were working for the company.

    How are you supposed to do your job at a company if you don't look at trade secrets while you are working at the company. And they didn't just go after one employee on it, like someone had some beef with one specific person, they went after multiple ex-employees.

    The lesson to be learned? If you work for Google, don't look at anything proprietary if you are ever going to take a job somewhere else they don't like.

    Good luck with that.

    reply to this | link to this | view in chronology ]

  • identicon
    Matt, 20 Apr 2017 @ 10:36pm

    Does anyone know if the aforementioned tutorial was published or can be found online?

    reply to this | link to this | view in chronology ]


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