In the latest Apple-Samsung battle, Apple’s real target is Google

Apple and Samsung have sued each other so often and in so many countries that you can certainly be pardoned for yawning when the subject comes up. I would too, except that the new case unfolding this week in a federal court in San Jose is actually about a company that’s not officially involved: Google.

Features like the ability to make a call within an app or text message by tapping on a phone number or sliding to unlock a smartphone are so common to so many devices that you’d hardly think they were someone’s patented invention. But Apple asserts that they are, and it is suing Samsung for allegedly pirating them. But if anyone stole those ideas, it was Google, because those are features of its Android operating system.

[ InfoWorld’s Galen Gruman explains what the first epic mobile patent battle was all about in “Apple and Microsoft: Frenemies beat back Android axis in mobile patents.” | Get a digest of the key stories each day in the InfoWorld Daily newsletter. ]

Steve Jobs famously said that he was ready to wage “thermonuclear war” against Android because the product was “stolen” from Apple. Well, put on your radiation suit. Apple wants to have new devices using those (and several other) features banned for sale, as well as have Samsung pay $40 for existing infringing devices sold.

If Apple wins, could a demand for payment from Google be far behind? I couldn’t care less if Samsung and Google have to fork over a bazillion dollars and make Apple even richer, but the other possible result of Apple’s campaign — wiping out key features of Android — would be a huge blow to competition.

Which of course brings up the topic of software patents, a legal notion originally designed to protect innovation but now does the opposite. Coincidentally, the very subject is now being argued in the U.S. Supreme Court, in a case that could — but probably won’t — put an end to this sort of nonsense.

Google’s long known it’s the ultimate target Google has seen this day coming for a good while. So in 2011, it paid $12.5 billion for Motorola Mobility, hoping that its huge store of patents would protect Android. Roughly half of that gargantuan sum, analysts figured, represented the value of those patents, which worked out to about $400,000 to $500,000 per patent.

I was appalled when the deal was announced: Think what kind of real innovation Google could do with $6 billion. Think of the research that would spawn new products, advance innovation, and create who knows how many thousands of good jobs up and down the technology food chain. Instead, that money went to buy patents. Ironically enough, Google dumped Motorola Mobility last year, taking a huge loss, but it apparently held on to key patents it needs to fight Apple and other companies, including Oracle.

Google, which has a lot at stake if Samsung loses, is expected to show up in court next month for that latest Apple-Samsung trial. Executives including Hiroshi Lockheimer, vice president of engineering for Android, will testify. No doubt he will bring slides and drawings of Android prototypes that purportedly include all of the contested features — and then some.

Samsung is countersuing Apple, arguing that Apple infringed on several of its patents: compression technology that allows video transmission via FaceTime, and a feature that allows users to organize videos and photos. Samsung does not claim it invented those technologies; it bought the patents from Hitachi and a group of American inventors.

Apple is arguing that by ripping off its patented features, Samsung stole iPhone sales and therefore needs to be punished. Apple essentially invented the smartphone and the tablet markets, but being the first to market doesn’t guarantee that you’ll stay on top forever. In fact, Apple hasn’t stayed on top because Android devices offer a real alternative to iOS.

Without Android, Samsung would hardly be a player in smartphones and tablets, which is why Google is the real target here.

Dueling memos show how deep the wounds go The first days of the trial featured dueling memos. Apple’s lawyers, as Brian Chen of the New York Times reported, pointed to a 2010 memo from J.K. Shin, the chief of Samsung’s mobile business, to his staff that said the company suffered a “crisis of design,” and a comparison between the iPhone and Samsung phones showed the “difference between heaven and earth.”

Apple views the memo as a smoking gun and says it shows that Samsung was ready to copy the iPhone because it couldn’t make a better product on its own. “Samsung went far beyond the world of competitive intelligence and crossed into the dark side” of copying, said Harold J. McElhinny, an Apple lawyer.

Samsung’s lawyer, John B. Quinn, had an internal Apple memo to show jurors, too. He presented a 2010 email from Jobs, then Apple’s chief executive, where he declared “holy war” on Google and said Apple needed to play catch-up with Google’s cloud services.

This current case is the second mega patent suit that Apple and Samsung have fought in a San Jose courtroom. In 2012, jurors found Samsung guilty of infringing a series of Apple’s mobile patents, and last year another jury recalculated a portion of the damages Samsung had to pay, bringing the total to $930 million.

Federal judge Lucy Koh presided over both the earlier trial and this one, which at least guarantees she’s on top of the issues. As Chen noted in Times piece, Koh has already decided that Samsung infringed on one of Apple’s patents covering a method for automatically correcting incomplete or misspelled words while a person is typing, so Apple has a bit of advantage.

But I’m not going to engage in legal tea-leaf reading. My concern is that fights like this highlight the sad facts that our patent system as a whole is broken, despite some recent reforms, and software patents in particular threaten legitimate competition and innovation.

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This article, “In the latest Apple-Samsung battle, Apple’s real target is Google,” was originally published by InfoWorld.com. Read more of Bill Snyder’s Tech’s Bottom Line blog and follow the latest technology business developments at InfoWorld.com. For the latest business technology news, follow InfoWorld.com on Twitter.