Apple Wants Courts to Hold Samsung Accountable for ‘Unclean Hands’

| Analysis

Apple wants the court to make sure there are repercussions for Samsung wrongdoings in the ongoing court battles between the two companies. Apple has asked the court to declare that Samsung has "unclean hands," and to bar certain Samsung executives from engaging in licensing negotiations because they improperly obtained confidential information.

There ain't enough soap, brother....

Dirty Hands

According to FOSS Patents, Apple filed the motions with Magistrate Judge Paul S. Grewal as part one of several patent infringement cases Apple and Samsung are fighting. The move comes in reaction to outside law firm Quinn Emanuel having shared highly sensitive and confidential Apple and Nokia licensing terms with Samsung in direct violation of the process set up by the court.

While Quinn Emmanuel's attorneys were given access to the licensing terms in question, they were supposed to keep them secret. Instead, the firm posted them to a Samsung FTP server where they were accessible by scores of Samsung employees, including executives like Dr. Seungho Ahn, a licensing negotiator for the South Korean electronics giant.

Back in October, Judge Grewal expressed dismay at this behavior and opened up the possibility that Samsung could suffer sanctions because of it. He asked Apple to explain why he should impose sanctions, while Samsung was given the opportunity to explain why he shouldn't. Tuesday's filings from Apple were in response to that request.

While Samsung has so far painted the incident as a minor oops—Dr. Ahn blithely dismissed it by saying, "all information leaks"—Apple wants Samsung to have consequences for its behavior. These include:

Unclean Hands

Apple wants the court to declare that Samsung has 'unclean hands,' a legal term meaning that Samsung hasn't behaved equitably,and as such is not entitled to injunctive relief should Apple be found to infringe on Samsung patents. Tim Worstall at Forbes does a good of of explaining this in layman's terms.

The short version, however, is that if Samsung has dirty hands, it won't be able to ask for injunctive relief—as in a sales and import ban—if Apple were to be found guilty of infringing on Samsung's patents. Injunctive relief is a form of equity protection, and an entity that has behaved inequitably is not entitled to equitable remedy.

Public Shaming

Apple's attorneys also asked the court to order Samsung and its attorneys to publicly acknowledge their misbehavior, including informing all parties involved in other cases as to their misconduct. This is somewhat like a UK judge's order earlier this year forcing Apple to advertise in a newspaper that Samsung had not copied its design patents (because Samsung's devices "weren't cool enough" to be a copy).

It would be rad for Samsung and its attorneys to have to do that, but be sure that if even if Judge Grewal doesn't grant Apple's request, everyone playing in this arena will know of Samsung's misconduct because the case is so closely watched.


Apple wants the individual Samsung executives held accountable, too, with a court order excluding them from negotiating mobile-related licenses for the next two years.

According to FOSS Patents, Apple asked the court to "prohibit [Samsung chief licensing executive] Dr. Ahn and other Samsung executives (including those responsible for licensing and/or managing Samsung's litigation with Apple) who improperly obtained Apple's and other companies' confidential business information from negotiating any mobile-device licenses for Samsung for the next two years."

That would be an interesting sanction, and it would directly effect the executives who were given access to and shared this confidential information, but it's frankly hard to believe that said information wouldn't be shared with any other potential negotiators, too. Call this my cynical side.

Nokia, Too

Apple isn't alone in wanting some accountability. Nokia—which is now owned by Microsoft—is asking that Samsung be prohibited from using the information it obtained in its own negotiations with Nokia.

More biting is the request that Quinn Emmanuel be barred from representing Samsung in any action where Nokia is on the other side of the table. The company argued that it can't trust that Quinn Emmanuel will treat confidential material in an appropriate manner.

Mr. Mueller characterized that as "a bit over the top" and unnecessary. For what it's worth, I agree with that assessment, and I'd be surprised if it was granted.


Samsung's filing iterated the company's position that the sharing was inadvertent, and that nothing naughty was done with it anyway—this, despite the fact that it was Dr. Ahn who told Nokia during his negotiations with that company that he already knew the terms that Nokia had reached with Apple.

Image courtesy of Shutterstock.



Many rulings from US judges have surprised me as being unfair, or the judge is just being naive. But the thought occurs that perhaps these judges were appalled at Apple’s “price-fixing” in ebooks, and they are biased against Apple due to that (while casting a blind eye to Amazon’s monopoly power).


Amazon isn’t a monopoly, they don’t even have the most popular e-reader on the market.

Bryan Chaffin

daemon, a reasonable reading of ibuck’s comment says he was referring to Amazon’s monopoly power in ebooks before Apple came in with iBooks.

Not tablets.



Before Apple came in with iBooks, there were several competitors to Amazon: Google, Sony, Barnes and Noble, the major book publishers. Granted the most hyped and talked about ereader was the Kindle, but we don’t even know if it was the most bought because Amazon never released sales numbers for Kindle, so we have no way of knowing if it actually out sold Sony’s e-reader, or the iRex reader, or any other reader…

So to suggest Amazon held a monopoly on ebooks prior to the launch of iBooks is a claim without proof.

Bryan Chaffin

daemon, you’re mixing up ereaders with ebooks. Amazon didn’t release Kindle sales, but Kindle book sales numbers are public knowledge through the publishers.

Amazon had 90% share of ebooks, brought about in part because of it dumped best sellers below cost. That’s not conjecture.


“daemon, you’re mixing up ereaders with ebooks”

I’m not mixing them up Bryan, perhaps I’m not clear enough.

Google, Barnes and Noble, and the major book publishers themselves all sold ebooks before Apple introduced iBooks. Google’s ebooks were available before Kindle books, I bought ebooks from publishers such as Simon and Schuster since 2004.

I then pointed out that the ebook reader hardware numbers for Kindle were never released, so we have no idea how many people actually had them, just that it was heavily hyped at that point.

As for the kindle book sales numbers being public knowledge, I have never seen any report from any publisher stating it’s sales for Kindle ebook versions, if you have links, or sources I’d love to read about it.

Bryan Chaffin

I was conflating some reports I’ve read on publisher’s digital sales with reports on market share. It appears that ebook market share has been compiled by studies, rather than released numbers.

There are untold numbers of articles citing various studies and research that pegged Amazon’s ebook share at 90% in late 2009 when Apple wanted to enter the market. Here’s one from BusinessInsider citing sources in publishing, but there are gobs out there. Certainly the 90% share was accepted as evidence during Apple’s antitrust trial.

My apologies for misunderstanding your point about Amazon not releasing Kindle numbers. That said, I don’t think the number of Kindles sold is necessarily relevant when discussing how Kindle ebook market share.

in any event, while Amazon doesn’t have monopoly power today, it did before iBooks was launched. 90 percent share is hard to argue with.


Bryan, I’m not trying to nitpick you, but I think it would be unfair to not point out that BusinessInsider article is a report of unsubstantiated claims by an unknown number of publishers and distributors for an unknown region.

Seriously, the guy could have been talking to Reiman Publishing in Greendale, WI.

It’s an interesting piece, but lacks sources on the record, specific sales numbers that would quantify the information, or any information that would back up his claims.

I agree, Amazon Kindle book sales were heavily hyped in 2009, many opined that they were the primary source of eBook sales. Yet no one provided any hard numbers to back any of those claims up.

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