Patents

Why isn't Apple suing Google?

April 14, 2014: 4:11 AM ET

Samsung's argument that Apple attacked the wrong company could resonate with the jury.

From Walter Isaacson's Steve Jobs.

From Walter Isaacson's "Steve Jobs"

FORTUNE -- Watching Apple's (AAPL) patent infringement trial from afar -- today, it's from Prague -- I can't tell if the jury got as clear an explanation of where Apple's so-called "quick link" software came from as the one Daniel Eran Dilger posted Sunday on AppleInsider (How Samsung & Google teamed up to steal Apple Data Detectors for Android).

But reading Dilger's deep dive into the history of the technology I'm reminded of what Steve Jobs told his biographer the day Apple sued HTC, the first of the Android manufactures to feel the litigious wrath of Jobs:

"Our lawsuit is saying, 'Google you f***ing ripped off the iPhone, wholesale ripped us off. Grand theft.

"I will spend my last dying breath... to right this wrong. I'm going to destroy Android, because it's a stolen product. I'm willing to go thermonuclear war on this. They are scared to death, because they know they are guilty."

Well, if Google (GOOG) is the company that copied Apple's technology -- and in the case of Apple's data detectors, it would seem they are -- why is Apple suing Samsung?

Samsung's lawyers raised this question in their opening statement two weeks ago, and it's an argument that could resonate for the jury.

I took a crack at it in August 2012, right after the first Apple v. Samsung trial ended in Apple's favor to the tune of $1 billion.

"In retrospect, [suing Samsung, not Google] was smart move. As Apple laid out its narrative for the jury in its closing arguments, the Samsung story was an easy one to tell. Not only had the Korean manufacturer imitated Apple's designs down to the boxes the devices came in, but it left a paper trail that showed the company scrutinizing every aspect of the iPhone touchscreen for ways Apple's design decisions could improve Samsung's products.

'The mountain of evidence presented during the trial,' Apple CEO Tim Cook told employees after the verdict, 'showed that Samsung's copying went far deeper than we knew.'

"Whether Google left a similar paper trail remains to be seen. Moreover, Google can claim, as it did when it was sued by Oracle, that Android doesn't produce any direct revenue for the company, so there can be zero damages. Android may generate billions of ad dollars, but that's a harder story to sell a jury.

'It's all about tactics,' says FOSS Patents' Florian Mueller. 'There's no reason Apple would have to be afraid of suing Google directly. It's just tactically more convenient to go against other device makers.'"

Mueller, by the way, has so thoroughly changed his tune on Apple's patent litigation strategy that on Sunday, after a brief exchange with Dilger over the AppleInsider piece, Mueller blocked Dilger's Twitter account.

Tempers, it seems, are running high.

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