On the face of it, Uber has had a terrible week in its legal brawl with Waymo, Google parent company Alphabet's self-driving car effort. First it suffered the public reveal of a long-awaited report that appeared to confirm Uber knew its former superstar engineer, Anthony Levandowski, took intellectual property from Google, his former employer, before it hired him. Then, over Uber’s protest, the judge pushed the trial date back from this month to December, giving Waymo more time to prepare its case. (Uber wanted the gavel to drop ASAP.)

To quickly sum up the case: Waymo alleges that when former star engineer Levandowski left the company in January 2016, he made off with thousands of documents containing its proprietary information, then used that intellectual property to jumpstart his own company, Otto. Uber acquired Otto for a reported $680 million in August 2016, and Waymo says Levandowski brought this stolen info with him—and that its intellectual property ended up in Uber's self-driving cars.

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Waymo does not have this case squared away just yet. The judge in charge of the case thinks that for all their efforts and revelations, even after spending nearly 4,500 hours reviewing thousands of documents, Waymo's lawyers have not convincingly linked Levandowski's alleged wrongdoing to anything that happened in Uber's workshops.

“If there’s a smoking gun, let me see it right now,” Judge William Alsup told Waymo lawyers on Tuesday.

This is all despite the juicy revelations of a hotly contested report released by the court on Monday evening, one many expected to break the case open for Waymo. In a standard due diligence move, Uber commissioned the firm Stroz Friedburg to compile the 34-page investigation into Levandowski and Otto before acquiring the company and putting the engineer in charge of its self-driving efforts.

Uber tried for months to shield this report from the public view, and it's easy to see why. It shows that Levandowski and Uber execs had informal chats at least six months before the engineer left Waymo, and that Levandowski had possession of Waymo documents at least two months after he departed the company. The report finds that Uber execs, including Kalanick, say they warned him they didn't want any Waymo info, and Levandowski deleted various documents from his personal laptop. He also told Uber's investigators that he destroyed five disks containing Google proprietary information before meeting with them. According to the report, the investigators were unable to verify his account. (Levandowski has asserted his fifth amendment right against self-incrimination, and refused to cooperate with Uber’s lawyers. Uber fired him in May.)

This might look like suspicious behavior, sure, but it’s not proof of Waymo's chief accusation: that Uber acquired Otto and hired Levandowski so it could use its know-how to advance its own nascent self-driving program. At least not in Alsup's opinion. "This is not the home run they were expecting," the judge said in Tuesday's hearing. And he indicated he's less interested in what happened before the Otto acquisition than in how, exactly, Waymo trade secrets might have made it into Uber tech after Levandowski became an employee.

Out of the Park

But you don't always need a home run to win a ball game. It's possible Waymo will never find such killer evidence, and that such evidence doesn't exist. That might be OK.

“Trade secret misappropriation is not just, ‘You absolutely knew about the theft and I have to prove your consciousness of guilt,’ ” says John Marsh, an attorney with the law firm Bailey Cavalieri, who focuses on trade secrets. “Negligence can be enough.”

Even if Uber told Levandowski to keep Waymo intellectual property far away from its operation, it could be found responsible for that sort of negligence. As Alsup wrote in a May order, “Even if Levandowski so agreed, his word under these circumstances would be cold comfort against the danger of trade secret misappropriation for Uber’s benefit.” In other words, maybe Uber didn't do enough to make sure it wouldn't benefit from stolen knowledge. Carelessness with intellectual property, even if it's not premeditated theft, can be enough to win a trade secrets case, Marsh says. Proving such negligence is difficult, and might win Waymo less money in the end, Marsh says, but it's not the only way forward.

Waymo could try to prove that its info helped Uber develop its self-driving cars, even if the final product looks nothing like Waymo’s. “In the research and development community, knowing what path not to follow is as valuable as knowing what path to follow,” says Marsh. Waymo could argue not that Levandowski took a specific piece of Uber tech, but that he used the information to create shortcuts through Uber’s development phase. The jargonistas call this a "negative trade secret".

After all, Waymo had a seven-year jump when Uber founded its self-driving car unit in 2015. The Alphabet company spent years developing its own version of the sensors that sit in the middle of this case: the lidar that Waymo alleges Uber stole. That's not unusual. “We joked that we had to find 2,000 ways to not build a lidar before finding this one way that worked really really well,” Austin Russell, CEO and founder of lidar company Luminar, told WIRED this summer. “The physics hasn't changed for why they work or don't work. It's the same thing when we started five years ago.” Making a robust, capable system takes trial and error, and lots of it. Waymo could argue Uber used stolen intellectual property to skip the 'error' bit.

Still, it’s rare to pull off this kind of negative trade secret case. Waymo’s lawyers would have to string together a compelling narrative packed with circumstantial evidence, coincidences too coincidental to be accidental. “Those trade secrets cases are rare because they’re difficult to establish and difficult to prove,” says Marsh.

Plus, negative trade secrets are controversial in the legal world. "By opening the market of negative information to all, all previous failures would not be replicated and all Sisyphus-type undertakings would be evaded," the Tel Aviv University law professor Amir Khoury wrote in a 2013 paper arguing that intellectual property law should take a different approach to negative trade secrets. "This would ultimately benefit society at large and (especially) entrepreneurs."

Whatever their tactic of choice, Waymo’s lawyers have two months to marshal more evidence and win over the heart of Judge Alsup. Well, both teams of lawyers have their work cut out for them: Alsup spent Tuesday’s hearing taking both legal teams to task for “half-truths.”

“It is true that despite the excellent quality of the lawyers here, I cannot trust what they say,” Alsup said. Good thing for both teams, perhaps, that this will end up in the hands of a jury.