No he couldn't, unless you think ActM will be using different chips for their mine than what they will ship to customers.
Ken hasn't had the chips back yet. End of story.
You don't really know what he has and what he doesn't, whether he got an initial batch of sample chips or not. In early November, he stated he was going to be adding about 3 TH or more over the following weeks. That could have been from sample chips.