Samsung's Request to Delay Investigation of Apple-Nokia Patent License Leaks Denied

[BvizioN]

So you better not use any apple products because they do contain parts made by Samsung..

For the millionth of time!! Apple products are not Samsung products just because they contain few Samsung components. They are Apple branded one. When you buy an Apple iPhone you are not supporting Samsung on the same way as you do when you buy their big **** phones.

My last Samsung product was Galaxy S3 and can't see myself buyng any other products from them for a long long time.

 

[ArtOfWarfare]

Our justice system needs to impose harsher punishments so that this kind of strategy won't fly. You shouldn't be able to violate patents and think it's okay by litigating about it for years knowing full well you'll lose in the end, because you'll end up making more during the time you are allowed to sell the product than you'll lose in court.

Rather than simply penalizing based on damages, they should be penalized based on how much they've made by violating the patent, not based on how much Apple has lost because of it. Or maybe just take the greater of the two and use that as the penalty amount. That'll give patents real teeth - you'll lose every dime you make from violating them, in the end, meaning it's a terrible long term strategy to violate them.

They should look at Samsung's Galaxy S2 profits, say, hey, this product shouldn't have ever existed because you violated these patents, hand over every dollar of it.

 

[clibinarius]

This is very different. Samsung's lawyers were given the information about Nokia by the judge, to assist them with their case. Apple understandably did not want the information to be shared, and the judge therefore made it clear that it was for the lawyers only: it was shared with the explicit condition that this information could not be shared with Samsung itself, only their lawyers. Not only did the lawyers flout this, but Samsung then, rather than going back to the judge immediately and saying "oops, our lawyers screwed up here" instead used the information, and also subsequently in a meeting with Nokia taunted them with the fact that they had information they knew they shouldn't have. Not very clever behaviour when you're still in the middle of the law suit.

I'm still not sure why Samsung should be in trouble here though. They're obviously an interested party. It is the responsibility of the lawfirm to deny any requests to show this information. If the lawyers reveal it, why should Samsung be responsible for that? It isn't like Samsung in this case stole something tangible, but they had intangibles thrown in their laps, and I could see a meeting held thereafter to actually examine the documents posted by the lawyers to see if the documents gave them what they requested, were authentic, etc.; and even if the documents violated the judges orders, you'd have the problem of whether or not managers at Samsung were qualified to know that, or the implications: I know ignorance of the law is no excuse, but I've never heard really of outside parties getting in trouble for reading leaked information, that's the responsibility of the parties in possession of the information. I'm not convinced that it is Samsung's responsibility to uphold the confidentiality of other people's information.

Even if Samsung explicitly requested the information, again, it is not their obligation to deny access to themselves here, and I think this is a very slippery slope. By this logic, anyone who reads a news article on leaked information could be held responsible for the information, not just the leaker, who in reality is the party that broke obligation. The only way I could see it being an issue at all is if there is any evidence of Samsung pressuring for the information in a manner that is intimidating, but again, the lawyers still aren't supposed to give in but to report Samsung, and then Samsung gets slapped with an injunction and probably a fine to pay the lawfirm for lost wages as a result of losing their business for not giving in to blackmail.

Based on the articles, I'm having a very tough time seeing what Samsung actually did wrong. It appears to be a giant lawfirm mess-up.

For the millionth of time!! Apple products are not Samsung products just because they contain few Samsung components. They are Apple branded one. When you buy an Apple iPhone you are not supporting Samsung on the same way as you do when you buy their big **** phones.

My last Samsung product was Galaxy S3 and can't see myself buyng any other products from them for a long long time.

Absolutely. I have problems with Foxconn, but because the iPhone doesn't have a Fox and picture of Connecticut on it, I can rest assured that Foxconn isn't actually making any money on the phone, and buy it and pretend that it doesn't matter.

And...I hate Coca-Cola. But Sprite is branded Sprite, not Coca-Cola. Therefore, I can drink Sprite.

See how that works?

 

[Plutonius]

Based on the articles, I'm having a very tough time seeing what Samsung actually did wrong. It appears to be a giant lawfirm mess-up.

You can't see anything wrong ??? Samsung knowingly used confidential information from a trial to force Nokia contract terms. It wasn't a law firm mess-up. Both the law firm and Samsung engaged in illegal behavior and the courts agree.

 

[za9ra22]

They're all making progress. What progress are the lawyers making? The engineers and retain and management and assembly line workers are all improving the quality of life for those that can afford the products that are produced... or at least you can argue that they're doing so. Who's lives are improved because of the existence of these lawyers (besides their families that they support?)

Society only exists in a coherent and functioning form due to the system of laws which hold it together and define how it behaves and how we all behave as individuals. In any system of laws, there needs to be advocates who's function is to litigate disputes. Absent those advocates, the law would simply not function other than perhaps as a vehicle for those who control power, and society as a whole would disintegrate or be oppressed.

The lives of us all are improved by the existence of lawyers.

 

[bbeagle]

Based on the articles, I'm having a very tough time seeing what Samsung actually did wrong. It appears to be a giant lawfirm mess-up.

You're trying very, very hard defending Samsung.

Samsung executives knew of the lawsuit against Apple. They knew that they weren't supposed to look at the Apple documents, and they did anyways. And to Samsung's gain on contract negotiation with a 3rd party, Nokia.

 

[za9ra22]

I'm still not sure why Samsung should be in trouble here though. They're obviously an interested party. It is the responsibility of the lawfirm to deny any requests to show this information. .......

This is very simple. It is known that the law firm shared the information. What is not (yet) known is why and in what circumstances. What is also known is that the court ordered that this information be made available for the eyes of the law firm only, and that Samsung knew this. If Samsung requested this information from the lawyers, they are in trouble because they knew they weren't entitled to have the information. If they didn't request the information they are still in trouble because once in possession of the information they knew they were specifically excluded by the court from having access to, they failed to notify the court and instead used that information for the precise purpose the court had excluded them from having it for.

Samsung was not, and is not an interested party. They were an involved party to the lawsuit from which this information derived. As an involved party they are responsible to the court for their actions relating to the court and the case.

 

[gnasher729]

I'm still not sure why Samsung should be in trouble here though. They're obviously an interested party. It is the responsibility of the lawfirm to deny any requests to show this information. If the lawyers reveal it, why should Samsung be responsible for that?

Ahem...

They are Samsung's lawyers. They were hired by Samsung to receive and review documents from Apple that Samsung wasn't allowed to see.

If I received stuff like that in my email, I would have the choice of dropping what I'm doing, and asking my manager what to do, or dropping what I'm doing and calling someone in our legal department for advice what to do. That's what anybody working in a company that tries to behave legally and ethically correct is trained and expected to do. Even if the stuff didn't come from lawyers that my company hired, which just made things ten times worse.

This is business, not the school yard.

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So you better not use any apple products because they do contain parts made by Samsung..

Do you actually believe that?

 

[kdarling]

This is very simple. It is known that the law firm shared the information. What is not (yet) known is why and in what circumstances. What is also known is that the court ordered that this information be made available for the eyes of the law firm only, and that Samsung knew this.

We know that a hired expert sent a report without the license terms redacted as they should've been. So one question is, was that accidental, or did he intend to take the chance of court sanctions and to never be used as an expert again? I'd bet on accidental.

The second question is, should the people reading this report have known that those parts should've been redacted? If they read these kinds of reports a lot, I'd say yes. Although not sure what they could've done once the cat was out of the bag, except delete the report.

The real screw-up to me, is the exec who told Nokia he knew the terms. That was just unprofessional.

--

Aside from all of this, it's interesting that Nokia claims Samsung was greatly helped by knowing the Nokia-Apple rate structure.

Obviously Nokia was originally trying to charge Samsung more than they charged Apple.

So my big question is, was this over FRAND related patents, or other ones?
.

 

[giantfan1224]

We know that a hired expert sent a report without the license terms redacted as they should've been. So one question is, was that accidental, or did he intend to take the chance of court sanctions and to never be used as an expert again? I'd bet on accidental.

The second question is, should the people reading this report have known that those parts should've been redacted? If they read these kinds of reports a lot, I'd say yes. Although not sure what they could've done once the cat was out of the bag, except delete the report.

The real screw-up to me, is the exec who told Nokia he knew the terms. That was just unprofessional.

Not only was the confidential information made available to Samsung executives, it was supposedly shared and re-shared throughout Samsung. That, and the fact that the exec told Nokia he knew the terms, makes it very difficult to defend Samsung in their obvious flouting of the law.

Also, I hadn't heard that the confidential terms of the agreement were supposed to be redacted. My understanding is that the entire documents in questions were marked confidential, for Samsung's lawyers only, not for Samsung. That is the crux of this case: Apple was vehemently opposed to supplying this information to Samsung so the confidential terms of the documents is the compromise the judge explicitly set forth.

 

[Solomani]

Samsung is plainly a criminal enterprise , flaunting laws around the world. They have built a business on copying their competitors, bribing officials, paying shills , analysts and ” journalists” and delaying and/or ignoring legal findings .

Hopefully, the weight of their crimes has become so heavy they will sink.

http://www.globalpost.com/dispatch/news/regions/asia-pacific/south-korea/121217/south-korean-election-seoul-samsung-chaebol

Samsung is a South Korean chaebol.... a family-owned business conglomerate. And yes, it runs just like any other family-owned Mafia-like business empire. Read up on SK news and you realize that South Korea's parliament (the assembly) has frequent scandals involving a corrupt politician being on the Samsung payroll. In the past, they've gotten away "legally" in Asia, because Samsung has more political clout and economic muscle there. But now that their legal tussles have taken them to US and European courts, the Sammy execs must be completely baffled as to why the US/Euro courts are not bending over to accommodate Samsung.

 

[kdarling]

Responding to you in reverse order:

Also, I hadn't heard that the confidential terms of the agreement were supposed to be redacted. My understanding is that the entire documents in questions were marked confidential, for Samsung's lawyers only, not for Samsung.

The documents were indeed marked for lawyer use only, and never sent to Samsung.

What happened was that Samsung's law firm hired an expert witness, David J. Teece, to write a report comparing what Samsung had asked of Apple with other deals that Apple had made.

So far, so good.

Unfortunately, Mr. Teece forwarded his report without the Apple-Nokia terms redacted, as they should've been.

Not only was the confidential information made available to Samsung executives, it was supposedly shared and re-shared throughout Samsung. That, and the fact that the exec told Nokia he knew the terms, makes it very difficult to defend Samsung in their obvious flouting of the law.

Real corporate life is not that dramatic.

It's pretty common for companies to have private FTP sites where large files are uploaded by third parties. This is also more secure than using email.

Mr. Teece uploaded his unredacted file to such a Samsung site.

As noted, about fifty people supposedly had access to that site. Of course, in real life, that doesn't mean anywhere near that many looked at the file. People, in general, are not prone to looking for extra work or reading, unless required to.

So what most likely happened was that one or two readers noticed the mistake and sent a link to his boss and so forth, until the executive in question saw it.

This does not absolve the executive from responsibility, of course. As the guy who talked to Nokia during negotiations, he should've well known that it was information that should not have been left in the clear.

 

[clibinarius]

Ahem...

They are Samsung's lawyers. They were hired by Samsung to receive and review documents from Apple that Samsung wasn't allowed to see.

If I received stuff like that in my email, I would have the choice of dropping what I'm doing, and asking my manager what to do, or dropping what I'm doing and calling someone in our legal department for advice what to do. That's what anybody working in a company that tries to behave legally and ethically correct is trained and expected to do. Even if the stuff didn't come from lawyers that my company hired, which just made things ten times worse.

This is business, not the school yard.

So...let me get this straight. You believe lawfirms have no duty in upholding the law? Samsung could ask for it all they want. The lawfirm should still say no. It is like me hiring an accountant to do my work. If I want the accountant to do something illegal, and they do it, they're in trouble, too.

In this case, Samsung wasn't stealing money from itself and reporting it incorrectly. Nor were they stealing directly from anyone-no internal stockholder was hurt or anything. The leak came from the lawfirm and the lawfirm should have serious consequences against it.

For instance, you hire me to do a job, and then you ask me to do something illegal. It is my duty to say no.

You're trying very, very hard defending Samsung.

Samsung executives knew of the lawsuit against Apple. They knew that they weren't supposed to look at the Apple documents, and they did anyways. And to Samsung's gain on contract negotiation with a 3rd party, Nokia.

How is Samsung to actually know what they were seeing until after they saw it? A normal business works this way.

Oh, look, a document.

Oh wait, I'm not sure what I just read. Meeting to review.

OK, we just looked at something that wasn't supposed to be shared with us. But...we didn't actually share it with us.

I'm still having problems figuring out why this is a problem for Samsung ethically. If it was a problem for Nokia that Samsung was trying to match terms with Apple, then Nokia should sue the leaker of information, ie: The lawfirm.

It isn't that I'm trying very hard to defend Samsung. What they did...seems rather normal to me in normal business. People get information, they use information. I've worked with confidential information. If I had leaked it, my head is on the line, not the receiver, unless they use it to do something illegal. Getting a better deal by citing deals isn't illegal.

This is very simple. It is known that the law firm shared the information. What is not (yet) known is why and in what circumstances. What is also known is that the court ordered that this information be made available for the eyes of the law firm only, and that Samsung knew this. If Samsung requested this information from the lawyers, they are in trouble because they knew they weren't entitled to have the information. If they didn't request the information they are still in trouble because once in possession of the information they knew they were specifically excluded by the court from having access to, they failed to notify the court and instead used that information for the precise purpose the court had excluded them from having it for.

Samsung was not, and is not an interested party. They were an involved party to the lawsuit from which this information derived. As an involved party they are responsible to the court for their actions relating to the court and the case.

So far as the case is concerned, they're not an interested party. For business, you bet they're interested in seeing what deals they can get.

I again must reissue: Without legal advise, how would Samsung know what information they were and weren't allowed to see? "Everything leaks"-I want to see a transcript with that, because that might be "Everything gets reported"-in the sense that, the executives had known about deals.

Remember, Samsung WAS entitled to certain, but not all knowledge. That was what the lawfirm was supposed to share with them. If Samsung got the entire deal, again, perhaps their interpretation was it was shared because the entire deal was sharable.

I think all responsibility is with the firm...I don't see much basis to go after Samsung here. Even if they hired a firm known for this type of behavior-the firm shouldn't have existed before this incident due to such behavior.

Maybe Samsung did something illegal, but so far as I can see, it is much ado about nothing and rooting for a football team...the "DEATH TO SAMSUNG APPLE TO VICTORY" type thing.

 

[za9ra22]

Not only was the confidential information made available to Samsung executives, it was supposedly shared and re-shared throughout Samsung. That, and the fact that the exec told Nokia he knew the terms, makes it very difficult to defend Samsung in their obvious flouting of the law.

Also, I hadn't heard that the confidential terms of the agreement were supposed to be redacted. My understanding is that the entire documents in questions were marked confidential, for Samsung's lawyers only, not for Samsung. That is the crux of this case: Apple was vehemently opposed to supplying this information to Samsung so the confidential terms of the documents is the compromise the judge explicitly set forth.

The problem here is that there are allegations about what happened to the documents and how, and to whom, they were shared, but since Samsung have been uncooperative, there are few solidly known facts. One could surmise (and likely the court will if Samsung remain uncooperative) that Samsung were complicit in obtaining the documents and then in sharing them widely within the organisation, but right now there are no real facts to back that up. All we have is knowledge that in negotiations with a third party (Nokia) it was made known that Samsung knew the contents of at least one document they were not supposed to have, and would use those contents in the negotiations.

We need to be careful in interpreting actions in this case because however shameful one could conclude Samsung's behaviour has been in this matter, they did not necessarily 'flout the law' or break it. Clearly two US judges believe there is evidence to believe that Samsung ignored the explicit order of a court relating to these documents, but if those documents in non-redacted form were accidentally provided to Samsung, however unethical it may be it would not be illegal for Samsung to then use the contents to their advantage. At most, on the facts as currently known, Samsung could be guilty of contempt for not refusing the non-redacted documents and/or failing to report their presence within Samsung to the court. Yet even contempt could be difficult to establish without the facts - which may well be why Samsung are proving reluctant to make the facts known.

As to the redactions, there would have been little to no point at all in supplying non-redacted documents to the lawyers only, because the documents in themselves would not have been of use to the lawyers arguing the case. The whole idea was that Samsung's outside counsel would review the non-redacted documents and provide redacted details to their clients, omitting detail their client shouldn't have had access to. Whether accidental or otherwise, instead of the redacted material, a non-redacted version was supplied to Samsung by outside counsel.

----------

We know that a hired expert sent a report without the license terms redacted as they should've been. So one question is, was that accidental, or did he intend to take the chance of court sanctions and to never be used as an expert again? I'd bet on accidental.

The second question is, should the people reading this report have known that those parts should've been redacted? If they read these kinds of reports a lot, I'd say yes. Although not sure what they could've done once the cat was out of the bag, except delete the report.

The real screw-up to me, is the exec who told Nokia he knew the terms. That was just unprofessional.

My understanding is that the expert was hired to examine the original non-redacted documents from Apple and supply a redacted report back to Samsung's outside counsel, not to Samsung. If not, and the report was to be provided to Samsung, there isn't a case of any kind to answer because outside counsel didn't do anything wrong, the expert made a mistake because it can't be evidenced otherwise, and Samsung aren't guilty of anything just for having access to detail they weren't supposed to have

 

[kdarling]

The documents were indeed marked for lawyer use only, and never sent to Samsung.

What happened was that Samsung's law firm hired an expert witness, David J. Teece, to write a report comparing what Samsung had asked of Apple with other deals that Apple had made.

So far, so good.

Unfortunately, Mr. Teece forwarded his report without the Apple-Nokia terms redacted, as they should've been.

Looking back at the court document, I'm incorrect at the end here.

It was not Mr. Teece who forwarded the report to Samsung without redaction, but the Samsung law firm.

So one question is, who did that? A lawyer? A law intern? A secretary? And why wasn't it caught? Did anyone bother to check the version being sent?

My understanding is that the expert was hired to examine the original non-redacted documents from Apple and supply a redacted report back to Samsung's outside counsel, not to Samsung.

You're correct. I caught my mistake a little while afterwards. See above.

It still feels accidental. If you're going to sneak data, you sneak it. You don't send to a bunch of people who might report it.

 

[za9ra22]

I'm still having problems figuring out why this is a problem for Samsung ethically. If it was a problem for Nokia that Samsung was trying to match terms with Apple, then Nokia should sue the leaker of information, ie: The lawfirm.

It isn't that I'm trying very hard to defend Samsung. What they did...seems rather normal to me in normal business. People get information, they use information. I've worked with confidential information. If I had leaked it, my head is on the line, not the receiver, unless they use it to do something illegal. Getting a better deal by citing deals isn't illegal.

It is ethically problematic for Samsung because as a party to the case from which the documents derived, they were told what information they could have and what they could not. They subsequently were given information they knew (because they were party to the case) they should not have, yet they did nothing to report to the court or to refuse to accept, that information.

I again must reissue: Without legal advise, how would Samsung know what information they were and weren't allowed to see? "Everything leaks"-I want to see a transcript with that, because that might be "Everything gets reported"-in the sense that, the executives had known about deals.

Remember, Samsung WAS entitled to certain, but not all knowledge. That was what the lawfirm was supposed to share with them. If Samsung got the entire deal, again, perhaps their interpretation was it was shared because the entire deal was sharable.

In essence, Samsung were in the courtroom when the judge told them what they could and could not have. It's not an option for Samsung to interpret that to mean anything more or less than what the judge actually stipulated.

I think all responsibility is with the firm...I don't see much basis to go after Samsung here. Even if they hired a firm known for this type of behavior-the firm shouldn't have existed before this incident due to such behavior.

You can't know who is responsible for what until at least some basic facts are know. Much that needs to be known in order to draw conclusions is not yet known, which is why two judges seem to be getting a bit annoyed with Samsung's behaviour before, during and after this incident.

----------

Looking back at the court document, I'm incorrect at the end here.

It was not Mr. Teece who forwarded the report to Samsung without redaction, but the Samsung law firm.

So one question is, who did that? A lawyer? A law intern? A secretary? And why wasn't it caught? Did anyone bother to check the version being sent?



You're correct. I caught my mistake a little while afterwards. See above.

It still feels accidental. If you're going to sneak data, you sneak it. You don't send to a bunch of people who might report it.

As I said in a post in the original thread relating to this a week or so back, I'd be prepared to bet that the law firm will want to tell us that an intern or a legal assistant was supposed to ensure that the redacted copy got passed on and that he or she simply made a mistake and handed off the non-redacted version. Given that it then becomes a mixup of two documents, it might be considered a serious error in the context of the law firm, but not a legal issue.

Either way though, Samsung knew they should not have access to the information, so it was very dumb for them to make it known they did have access. That not only signals an ethics issue, but also put themselves squarely in the court's headlights. Keeping quiet would have been wise. Perhaps corporate culture required them to brag about it, but common sense says they would have been wise to say nothing.

----------

... but so far as I can see, it is much ado about nothing....

Quite the contrary, this is a crucial and very important issue because at the root of it is the possibility that a large corporation sought to use the court to obtain information from another party that would put themselves at a competitive advantage, and then ignored the specific instructions of that court in denying them access to the detail they wanted, instead flagrantly breaching instructions provided by a judge. This is, potentially, an issue of how the legal system contends with an entity which believes itself to be above the law.

 

[kdarling]

Either way though, Samsung knew they should not have access to the information, so it was very dumb for them to make it known they did have access. That not only signals an ethics issue, but also put themselves squarely in the court's headlights. Keeping quiet would have been wise. Perhaps corporate culture required them to brag about it, but common sense says they would have been wise to say nothing.

Totally agree.

Although, I'd replace the faceless word "Samsung", with the specific executive who caused the ruckus, "Dr. Seungho Ahn".

I believe he is a VP in charge of IP issues. Of all people, he should've known better, and he bears a lot of responsibility for the way he handled things.

 

[clibinarius]

It is ethically problematic for Samsung because as a party to the case from which the documents derived, they were told what information they could have and what they could not. They subsequently were given information they knew (because they were party to the case) they should not have, yet they did nothing to report to the court or to refuse to accept, that information.

The problem here is how do you know what information you shouldn't have until after you've read it, and if you've read it, what difference does it make reporting it? You already know it.

Furthermore, I don't see how it gave them a competitive advantage. Samsung stated a position, which is probably "Match Apple or pound sand"-it would seem in such an event that

1. Nokia wanted to give Samsung a worse deal than Apple
2. Apple gets lower prices than its competition and not necessarily on volume

It does put Nokia at a disadvantage if they rely solely on negotiation and lowers Nokia's advantage.

I still am not convinced, however, that there's any real problem with Samsung's behavior. Further issues include whether or not that the executives involved were even aware that there was a segregation, and again, the ability of the executives to know exactly wasn't permissible and what was relevant. Yes, the judge defined certain things, but that's up to legal, and legal did not do its duty.

It is annoying, however, I'd imagine for a judge to have its decision overturned essentially on a clerical error, but that's effectively what happened. I see no reason to believe the problem isn't with the lawfirm.

I can think of two people who went to jail, for instance, for Enron. Jeffrey Skilling and the CFO (Ken Lay died). However, was Authur Anderson not found liable? And weren't the Enron execs problematic because they actively committed all sorts of fraud?

This is in a completely different class. Yet, as Authur Anderson caused problems via the enron case, I see the lawfirm being mostly liable for what's occurred here, not the parent company as again, there's little evidence of fraud reported, just possession of information that the court stated did not have to be given to Samsung.

I'd further not that I do not believe that the possession of restricted information is a crime. Even if the court says you don't deserve that doesn't mean you can't acquire it; for instance, you could buy the information, you can do experiments and replicate information (depending on the type of information), etc.; so long as you didn't steal it or obtain it illegally, I don't see the problem.

Asking for information you're not entitled to have isn't a crime, again. You're supposed to be rebuffed.

 

[gnasher729]

The problem here is how do you know what information you shouldn't have until after you've read it, and if you've read it, what difference does it make reporting it? You already know it.

If the first person had reported it, the other 49 wouldn't have received it.

And even if you know it, you are not allowed to act on it. So if the person negotiating with Nokia had received this info by accident (instead of it being forwarded by another Samsung employee who thought it might be useful), he should have reported it, because that's what he had to do anyway, and then he should have removed himself from any negotiatons with Samsung.

 

[Makosuke]

I'd further not that I do not believe that the possession of restricted information is a crime. Even if the court says you don't deserve that doesn't mean you can't acquire it; for instance, you could buy the information, you can do experiments and replicate information (depending on the type of information), etc.; so long as you didn't steal it or obtain it illegally, I don't see the problem.

The possession of restricted information isn't a crime, but its use/abuse very easily can be.

To use an example from a somewhat different but related field, you can clean-room engineer a system identical to a patented one (rather than, say, stealing their trade secrets, which is illegal gain of knowledge), which then gives you the knowledge of how your competitors patented product works. But that does not magically give you the legal standing to use that knowledge to build your own product--it has been patented already, and you are prohibited from actually using that knowledge, regardless of how legally you obtained it. Samsung has plenty of experience with that sort of thing on both sides of the sword.

I'm not a lawyer, so I have no idea what the situation in this case is, but I can certainly imagine how privileged business communications could fall into a similar category. If the information was provided to your company with the legal prohibition of your using it, and you then use it in a business negotiation (which is exactly what they did), it does not matter whether you obtained it accidentally due to your legal department's clerical error or not. You got ahold of information that you had been explicitly informed you were not supposed to have, and you then used it in a business negotiation.

Also, from the sound of the judges' comments, it sounds very much like Samsung has been uncooperative, or even obstructive, in the investigation of what happened, which doesn't exactly speak well to their innocence in the matter. When something bad happens and the court tells you to figure out why, and you don't, that's a serious legal problem.

It's honestly a little shocking to me that anybody would be defending Samsung's actions in this case as ethical. It's possible there's a legal loophole through which they fall--although from the sound of what both judges are saying, who know the law better than anybody here, it does not sound like there is--but even if so, the behavior was flagrantly unethical at best unless Nokia was outright lying and Samsung did nothing at all to defend itself after the fact despite being innocent.

[...] But now that their legal tussles have taken them to US and European courts, the Sammy execs must be completely baffled as to why the US/Euro courts are not bending over to accommodate Samsung.

I want to say that this is an exaggeration, but given how flagrant this abuse was, and how blatant some of their other sketchy (or outright illegal) behavior has been, this honestly seems like the real explanation. That the executive culture has gotten so used to getting away with anything--again, I note that the chairman of the company is a convicted criminal who would be in jail right now if the South Korean government hadn't let him off with a slap on the wrist--that they aren't even able to tell when they need to stay within the lines anymore. But I suppose when a fifth of your economy relies on a single company it's not too surprising that they get cut a lot of slack.

Of course, come to think of it, Microsoft repeatedly flouted antitrust law during their heyday and the US government let them off pretty much scott-free, too.

 

[clibinarius]

I'm not a lawyer, so I have no idea what the situation in this case is, but I can certainly imagine how privileged business communications could fall into a similar category. If the information was provided to your company with the legal prohibition of your using it, and you then use it in a business negotiation (which is exactly what they did), it does not matter whether you obtained it accidentally due to your legal department's clerical error or not. You got ahold of information that you had been explicitly informed you were not supposed to have, and you then used it in a business negotiation.

It wasn't Samsung's legal, but rather a third party hired by Samsung.

And again, there is a duty here to make sure whether or not the information could be used. If it didn't pass through Samsung legal, then I see no actual case against Samsung, even if used in such a manner. Nokia could've reported it and probably did, but to no avail-how can Samsung un-know what they already know about Nokia sales?

If the first person had reported it, the other 49 wouldn't have received it.

And even if you know it, you are not allowed to act on it. So if the person negotiating with Nokia had received this info by accident (instead of it being forwarded by another Samsung employee who thought it might be useful), he should have reported it, because that's what he had to do anyway, and then he should have removed himself from any negotiatons with Samsung.

This assumes that the person who first read about it knows what was there before asking others to review it. When you're dealing with so much confidentiality and legal stuff, and it appears on the server, it might easily go to 50 different managers for opinion before someone decides "Hey, this stuff might violate a clause"-by the time the information is stopped, it is too late. And I don't know of any company that is going to "turn itself in" in this situation.

Even if it had, there's still another problem:

It assumes that Samsung wasn't giving their negotiators targets based on the very real amounts being paid through Nokia. Again, if Samsung says "Apple pays X, Nokia pays Y, we won't accept worse conditions" then as a matter of principle Samsung could scuttle talks. I certainly know that if I were getting a worse rate than others, I'd simply boycott until I got the better rate, no matter how I found out.

Imagine going to a pizzeria and being told a slice was $3, and other people were paying $2 because the actual price was confidential. Would you eat there? Possibly. But I'd be mad and hold out for the better deal and not go there anymore.

I see this happening at Samsung-Nokia.

 

[za9ra22]

The problem here is how do you know what information you shouldn't have until after you've read it, and if you've read it, what difference does it make reporting it? You already know it.

Oh dear. This is very simple: Because they knew what documents they were asking for and they knew what those documents contained - that was why they were asking for them. Apple opposed disclosure of the documents and in view of that, the judge gave very specific instructions about what, from those documents, Samsung was allowed to see and what it wasn't.

Furthermore, I don't see how it gave them a competitive advantage.....

Heavens above, this is even more simple: Because it gave Samsung detailed information on the financial arrangements of a competitor. Since the deal between Apple and Nokia were not related to FRAND patents where the basic principle is that the deal you have with one party has to be much the same as the deal with any other, both Apple and Nokia were free to agree whatever terms they wanted and felt appropriate to their corporate needs.

Samsung's access to those terms meant they weren't negotiating with Nokia, they were holding a gun to their heads.

I still am not convinced, however, that there's any real problem with Samsung's behavior. Further issues include whether or not that the executives involved were even aware that there was a segregation, and again, the ability of the executives to know exactly wasn't permissible and what was relevant. Yes, the judge defined certain things, but that's up to legal, and legal did not do its duty.

Thankfully it is not you who needs to be convinced but a judge who is in possession of a clear understanding of the law and has access to all the facts as they are known. These facts include who knew what and when they knew it, the circumstances in which the non-redacted document was made available to Samsung, and how that document was then propagated around Samsung's executives and staff. These are details which are crucial to whether there is a case for Samsung and/or their outside counsel - or indeed any other party to the issue - to answer.

It is annoying, however, I'd imagine for a judge to have its decision overturned essentially on a clerical error, but that's effectively what happened. I see no reason to believe the problem isn't with the lawfirm.

I'd have a problem with anyone not familiar with the facts prejudging the outcome - particularly in such a radical form as this. I also suspect the judge is more than annoyed. MUCH more. Ignoring a judicial order is one of the most fundamental and egregious ways in which the entire legal system is undermined. It is no small matter, and not to be taken so lightly.

 

[tongxinshe]

Industrial Espionage is nothing new. But I'm not quite sure what Samsung itself did wrong, and Samsung has contended that Apple refuses to give reasonable licenses for what it deems obvious software patents used in many different applications historically, though only in a smartphone recently...I'll give an example of Costco, which infamously received an invoice meant to go to Walmart one day, realizes Walmart got a better deal than them, and used this information to stop carrying them as a supplier. And should a journalist who leaks details of, say, government plans go to jail? So why didn't Woodward and Bernstein go to jail?

Read the story if you don't understand, it's not a long one, taking you less than 10 minutes. What Samsung did here is a "contempt of court", a direct violation of court order, and more irritating -- bragging about it loudly.

 

[Makosuke]

If it didn't pass through Samsung legal, then I see no actual case against Samsung, even if used in such a manner. Nokia could've reported it and probably did, but to no avail-how can Samsung un-know what they already know about Nokia sales?

Well, if you read through the document, according to the things quoted by judge Koh, you have "All Protected Material shall be used solely for this case or any related appellate proceeding, and not for any other purpose whatsoever, including without limitation any other litigation, patent prosecution or acquisition, patent reexamination or reissue proceedings..."

So she seems to think that, yes, it doesn't really matter how you got your hands on it, if you did, you're under obligation not to use it. I'm neither a lawyer nor a judge. She, however, is, so I'm inclined to think she knows what she's talking about.

If you get a trade secret document you know you are not supposed to have, you have two choices: You can read it or not read it. After reading it, you can then either try to act as if you have not read it (whether honestly or not), or disclose the fact that you have that knowledge as a bargaining chip.

If the law firm you hired--who is representing your company in the court system, and therefore for all practical purposes is your company in the court system--leaks a document, through whatever route, and you get your hands on it, you end up with the above choices. It's entirely possible that even if the document is published in the NYT you have the same choices--I don't know.

But the important thing is that only Samsung got the information. Their competitors did not get access to the same leaked information, as they would have if it had been published in the NYT. If, to use another example, you have access to information like that and use it to buy stock, it's called insider trading, and is a crime, regardless of how you got access to the information.

The Samsung executive in question had the choice of reading the documents he got his hands on or not reading them and reporting the leak to the court. He then also had the choice of pretending he had never seen them or using the fact that he had knowledge of them in subsequent business dealings. Not using the knowledge gained from them, but the fact that he knew it--he was saying to the Nokia exec in the negotiations that he knew what the agreements were as a means of leverage, not just secretly changing his tactics in response to what he knew, in which case there could be plausible deniability that he was not abusing the privileged knowledge he had.

It wasn't Samsung's legal, but rather a third party hired by Samsung.

It doesn't matter that Quinn Emanuel--the law firm that obtained and then leaked the documents--isn't Samsung subsidiary. They were hired to represent Samsung legally, which makes Samsung liable for whatever they do in their name, and certainly liable if they give privileged information to their client. That's how it works when you hire a law firm to represent your company.

 

[maelstromr]

I'm simply musing about how all this litigation benefits no one other than the lawyers, who are all probably quite happy with the way things are unravelling.

Just a passing comment.

Of course, it looks like the gravy train might be about to end for SOME lawyers over at Quinn Emmanuel...