Earlier this month, we reported that Apple was seeking sanctions against Samsung after word emerged that Samsung executives were improperly given access to confidential details from Apple and Nokia's confidential 2011 licensing agreement.
According to a court order penned by Magistrate Judge Paul Grewal a few weeks ago, it appears that a damages report put together by a Samsung damages expert was not marked "Highly Confidential -- Attorney Eyes' Only" as it should have been. The report included "key terms" from Apple and Nokia's licensing agreement and was erroneously posted to a Samsung FTP site that was available to a number of Samsung employees.
As the story goes, when Samsung was holding its own licensing negotiations with Nokia in June 2013, Samsung executive Dr. Seungho Ahn told Nokia's Paul Melin that he was aware of the specific terms from Nokia's licensing deal with Apple.
The court order reads in part:
Specifically, according to Mr. Melin, Dr. Ahn stated that Apple had produced the Apple-Nokia license in its litigation with Samsung, and that Samsung's outside counsel had provided his team with the terms of the Apple-Nokia license. Mr. Melin recounts that to prove to Nokia that he knew the confidential terms of the Apple-Nokia license, Dr. Ahn recited the terms of the license, and even went so far as to tell Nokia that "all information leaks." Mr. Melin also reports that Dr. Ahn and Samsung then proceeded to use his knowledge of the terms of the Apple-Nokia license to gain an unfair advantage in their negotiations with Nokia, by asserting that the Apple-Nokia terms should dictate terms of a Samsung-Nokia license.
As we noted at the time, this merely represents a version of events according to Melin.
With a hearing on the matter scheduled to take place today, a number of filings from Apple, Nokia and Samsung have been made with the court. Florian Mueller has a complete run down on those filings over here.
Of particular interest is that Ahn categorically refutes Nokia's version of events.
22. I am certain that I did not tell Mr. Melin at the June 4, 2013 meeting that I received Apple/Nokia licensing terms from my outside counsel in the Apple/Samsung case, because it is not true, and because it would be a very foolish thing to say. I hold a J.D. from an American law school, Santa Clara University, and until I moved to Korea approximately ten years ago I was a member of the California Bar. I am well aware of the importance of protective orders in United States litigation. I have been responsible directly or indirectly for the supervision of hundreds of patent litigations. In most, if not all of them, a protective order is entered. These invariably cover license terms which I know from experience are highly confidential and sensitive information. The confidentiality of this type of license information is as important to Samsung as it is to any other technology company. It would be incredibly reckless for me to have made such a comment to Nokia. It would amount to my admitting to an adversary that our outside counsel and Samsung had violated a protective order protecting the adversary's information and that I was attempting to use the information gained by such a violation to negotiate license terms. The idea that I would violate a protective order is simply wrong, and the idea that I would tell my adversary that I and my outside counsel had violated it and furthermore were violating it in that very instance by trying to profit from its use is preposterous. [REDACTED]
23. I may have used the word 'leak' at the June 4th, 2013 meeting with Nokia, or some other word to reference the idea that all information gets out, though I don't recall the precise phrase I used. I do believe that there may have been some sort of leak due to the contemporaneous media reports outlining the terms of the Apple-Nokia license. But I cannot be certain of this. It has in fact been my own experience that information gets out. I know this from my own experience and I recounted to Mr. Melin a situation a few years ago where Samsung had entered into a confidential settlement with another company and very shortly thereafter everyone in the industry seemed to know it.
Well, both of them can't be telling the truth.
Again, Samsung denies that its actions warrant any punishment because any wrongdoing on their part was completely inadvertent. Apple, meanwhile, wants more discovery on the issue while Samsung, of course, thinks the whole issue is overblown.