But this claim relies entirely on xAI proving that OpenAI deceived its employees to steal its trade secrets. Therefore, for xAI’s lawsuit to move forward, xAI will need to strengthen the evidentiary base for its other claim, that OpenAI violated the federal Defense Trade Secrets Act, Lin said. To succeed on that, xAI would have to prove that OpenAI unlawfully obtained, disclosed or used a trade secret with xAI’s consent.
This will likely be challenging because xAI, at this point, “has not presented any non-conclusive allegations that OpenAI itself acquired, disclosed, or used xAI’s trade secrets,” Lin wrote.
XAI has claimed that OpenAI induced former employees to share secrets, and so far, there is no support for that claim, Lin said. Tishler notes that the court also rejected the XAI theory that “OpenAI should be responsible for what it did before its new employees arrived” for the same reason: Without proof that OpenAI directed the theft or actually used the stolen information, you can’t hold the company liable.
The strongest evidence that XAI has of employee misconduct, which allegedly allowed OpenAI to misuse XAI trade secrets, revolves around the departure of Xuechen Li, one of XAI’s earliest engineers.
That evidence wasn’t enough, Lynn said. XAI alleged that Lee gave a presentation to OpenAI that allegedly contained confidential information. Lee had also “uploaded the entire
XAI hoped that the signal messages would shock the court, hoping that it would read between the lines the same way XAI did. As evidence that OpenAI allegedly got access to xAI’s source code, xAI pointed to a Signal message that an OpenAI recruiter sent Lee “four hours after” downloading the source code, saying, “nw!” XAI alleged that the message “No way!” is short for – suggesting that the OpenAI recruiter was motivated to gain access to XAI’s source code. But in a footnote, Lin said that “OpenAI emphasizes that ‘nw’ means ‘no concerns'” and thus is unconnected to Lee’s decision to upload the source code to a ChatGPT-linked cloud account.
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