Is Apple preparing a legal assault on Google over Android?

If you’re as old as I am, you may remember Soviet Premier Nikita Khrushchev making an ass of himself claiming that the Russians invented television. Now Apple is making an ass of itself, claiming that the seeds of the Android were planted at Apple in the early 1990s.

How could that be? According to Apple (in a legal filing related to its patent fight with HTC), Google’s Android czar Andy Rubin came across the idea when he was a junior engineer at Apple some 20 years ago, long before the iPhone, the iPad, or even the iPod existed.

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Although there may be a relevant patent in question here, Apple’s implication that Rubin’s invention of Android was somehow inspired by the work of his senior colleagues seems bizarre. But when you step back from the oddity of the legal maneuver, there may be a very significant message hidden inside the legal verbiage.

Apple could well be preparing to sue Google, which means going nuclear in the ugly mobile patent war that’s roiling and distracting the industry. “In legal terms, since Rubin never worked for HTC, this doesn’t have nearly as much weight in the ITC investigation of HTC’s Android-based products as it would have if Apple ever decided to sue Google itself,” patent and software analyst Florian Mueller wrote in a recent blog post.

(The ITC is the International Trade Commission, which is investigating Apple’s infringement complaint against device maker HTC. At the same time, HTC is suing Apple, using patents it bought from Google as part of its claimed evidence. Read Mueller’s blog for the gory details on who is suing whom; I don’t have the patience or the space.)

An action targeting Google would be a bombshell. Apple is already trying to block sales of various Android products on the basis of patent infringement. But those actions have been aimed at specific devices and their manufacturers, including HTC and Samsung. Suing Google would signal a much broader attack on the Android platform itself.

What did Rubin know and when did he know it? Among the barrage of documents flying around the ITC is this gem, recently filed by Apple: “Android and Mr. Rubin’s relevant background does not start, as HTC would like the Commission to believe, with his work at General Magic or Danger in the mid-1990s. In reality … Mr. Rubin began his career at Apple in the early 1990s and worked as a low-level engineer specifically reporting to the inventors of the ‘263 patent at the exact time their invention was being conceived and developed.”

As Mueller put it: “Look at the first two sentences again: ‘Android […] does not start […] at General Magic or Danger.’ According to this filing, it all started at Apple!”

Apple isn’t saying Rubin stole anything, but the implication is clear. As Mueller points out, because Rubin never worked at HTC, his relationship to its work is tangential. But that’s obviously not the case at Google, where he is a vice president in charge of Android development.

How strong is Apple’s claim about Rubin? It depends on what Apple really wants to accomplish, says patent attorney Brad Pedersen of Patterson Thuente IP. If Apple merely wants to keep him from testifying as an expert witness on behalf of HTC, it may have succeeded in reducing his credibility. But proving he derived the ideas that led to Android from his time at Apple would be difficult. “They would have to show that it communicated each and every feature of the invention to him,” Pedersen tells me.

Maybe Apple is merely engaging in a fairly standard courtroom maneuver: Make the other guy’s witness look bad. Or maybe Apple is simply floating a trial balloon to see what evidence its claim pushes to the surface, says Pedersen.

But there’s a psychological element here that could raise the stakes even higher.

A chilling effect Everyone in the technology industry is worried about being sued by someone, be it a troll or a reputable patent holder that feels aggrieved. I don’t want to get paranoid about Apple’s motivations. After all, it has a right to protect its valuable intellectual property, and patent lawsuits are a brutal game indeed. 

But given the nervousness in the industry, I wonder if the Rubin ploy will send a chilling message to the industry: Somebody could come after you, if one of your employees used to work for a competitor.

Joe Wilcox over at BetaNews makes an interesting point: If Apple can claim that Rubin’s employment somehow contributed to an alleged infringement by HTC (where he never worked), what about someone like Jon Rubinstein? Rubinstein played a key role at Apple in the development of the iPod and left to become to join Palm, where he developed WebOS and eventually become CEO.

Now he’s an executive at Hewlett-Packard and a member of Amazon.com’s board of directors. Picture this: HP is still holding on to WebOS although it won’t make any more WebOS hardware. And Amazon.com is coming out with an Android-based Kindle tablet that may compete with the iPad. Does Rubinstein’s status as an ex-Apple executive open the door to patent troubles for his new employers? I don’t know, but the possibility is troubling.

As Pedersen points out, most patent lawsuits end up with settlements. And it’s not hard to imagine Google and device makers negotiating a settlement that would involve royalty payments to Apple. That, of course, would raise the price of Android devices, making them that much less competitive against Apple’s iOS products.

That’s pretty crazy, but not as crazy as the $12.5 billion Google paid to buy Motorola Mobility and scoop up its huge patent portfolio. As I wrote a few weeks ago, it amounted to paying $400,000 for each of the company’s patents. It’s also not as crazy as Apple and Microsoft leading a consortium of technology companies in a $4.5 billion purchase of roughly 6,000 patents from Nortel Networks, for an even richer price of about $750,000 each.

All of that money that could have gone to hire new people and create new products has been wasted because everyone is afraid someone else will drop a patent bomb.

I welcome your comments, tips, and suggestions. Post them here (Add a comment) so that all our readers can share them, or reach me at bill.snyder@sbcglobal.net. Follow me on Twitter at BSnyderSF.

This article, “Is Apple preparing a legal assault on Google over Android?,” 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.