Patent Skirmishes Shed Light on Apple-HTC Suit

If you have to sue the competition, where does that put innovation?

So it turns out that, according to former Sun CEO Jonathan Schwartz, once upon a not-so-distant time, Microsoft came right up to the edge of suing Sun over OpenOffice.org violating Office intellectual property.

In a meeting between Schwartz, then-Sun CEO Scott McNealy, and then-Sun CTO Greg Papadopoulos, then-Microsoft CEO Bill Gates, and current CEO Steve Ballmer, Gates apparently highlighted patent violations from OpenOffice.org, and politely offered to OpenOffice.org get licensed under those patents.

Schwartz and Co. had a feeling this was going to happen, so according to him, Sun riposted with a challenge about how similar .NET was to Java. That seemed enough to end the meeting and any further discussion of the topic.

A similar discussion happened between Schwartz and Apple CEO Steve Jobs, which Schwartz highlighted in the same blog entry. Jobs was more than a little concerned about Project Looking Glass infringing on Apple's IP, and Schwartz was able to parry the potential lawsuit by pointing out the similarities between Apple's Keynote and Sun's Concurrence.

Aside from the fact that both these stories make Schwartz look like the hero--and hey, it's his blog--what gets me is the apparent lack of foresight supposedly smart executives make when they bandy about litigation like schoolyard bullies looking for more lunch money. I mean, seriously, didn't Gates, Ballmer, and Jobs think about what Sun might have in its IP portfolio before trying to shake the company down?

It seems not. Which, if Schwartz's story is accurate, means that either Apple and Microsoft either have some really bad lawyers or their collective executives try to kick off legal fights without consulting said lawyers first. Yeah, that's always a good idea.

Please note, I'm not accusing Schwartz of making stuff up. But, in fairness, we're only getting his side of the story, and the journalist in me feels compelled to call that out.

Personally, it's quite plausible that these events happened along the lines of Schwartz' description. Sometimes we hold execs up to a slightly higher standard because we assume they didn;t get where they were without having some smarts. But smarts are no defense against the truism that everyone makes mistakes.

What's also interesting is how these anecdotes shed new light on the recent lawsuit Apple brought to bear on HTC for 20 alleged patent violations--a move everyone knows is a proxy fight against Google's Android operating system running on HTC's phones. HTC (nor Google) has yet to respond, and I wonder if, when they do, it will be with some countersuits of their own. If that is indeed what happens, then look for a settlement really quick.

Why then, would Apple expose itself to such risk? Part of it is their culture. As seen by the Electronic Frontier Foundation's release of an Apple Developer's agreement this week, Apple is very very concerned about controlling everything about the user experience it delivers to market. Almost maniacally so.

And, I fear, part of it is a lack of confidence in their own business strengths. Apple, which has been a savvy innovator for years, apparently can't be bothered with real competition from Android phones. Instead of innovating forward, they're throwing out as many delaying tactics as they can to try to slow Android down.

Will Apple's strategy work? Ultimately, if this lawsuit is just a delaying tactic, then perhaps. Because if the ultimate goal is delay, then winning or losing the lawsuit doesn't matter. But, if indeed winning is the real goal, then history suggests that opening up with patent salvos is a sure way to bring those same sorts of salvos raining back down on you.

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