Fortune Article

A new theory about why Apple decided to take HTC — and indirectly, Google — to court

Two thirds of the way through a 3,000-word essay on This Apple-HTC Patent Thing, Daring Fireball’s John Gruber quotes a tweet by John Siracusa that gets to the heart of the matter:

“To me, the Apple patent suit smells like nothing more than a manifestation of Jobs’s own sense of injustice.”

In the context of Gruber’s essay — a passionate and thoroughly readable diatribe about why the software patent system is broken — the quote rings true.

Apple (AAPL), like most large tech companies, uses the system primarily for defensive purposes. They amass a portfolio of broadly worded patents to be unleashed, like nuclear warheads, on any company that dares take them to court — as Nokia did last October (see here).

What’s different about the suits Apple filed Tuesday, says Gruber, is that they amounted to a first strike — something Apple hasn’t done in patent court, as far as anybody can remember, since Apple vs. Microsoft, the famous court battle over the Macintosh “look and feel” that Apple ultimately lost.

That case, although it was filed in 1988, when Jobs was nowhere near Apple, may be a telling precedent. Like Microsoft’s (MSFT) Windows, the Google (GOOG) Android operating system that runs most of the HTC smartphones in Apple’s complaints is self-evidently built on the shoulders of Cupertino’s designers and software engineers.

Jobs, Gruber suggests, is not so much worried about HTC’s products as offended by them. He quotes Apple’s Tuesday press release:

“We can sit by and watch competitors steal our patented inventions, or we can do something about it. We’ve decided to do something about it,” said Steve Jobs, Apple’s CEO. “We think competition is healthy, but competitors should create their own original technology, not steal ours.”

“That’s not the language of a licensing dispute or the beginning of a polite negotiation,” writes Gruber. “That’s the language of a man aggrieved.”

It’s easy to understand Jobs’ indignation, writes Gruber, especially in light of the damage Windows inflicted on the Mac’s market share — and ultimately on the company Jobs co-founded. But the problem for Jobs is that everybody in the world of modern software — including Apple — “steals” (to use his verb) from everybody else.

Gizmodo on Tuesday dragged out the clip (posted below) from the 1996 PBS documentary “Triumph of the Nerds” in which Jobs quotes Picasso’s “good artists copy, great artists steal” and adds, about Apple: “We have always been shameless about stealing great ideas.”

By launching a nuclear first strike against HTC, says Gruber, Apple seems to be coming very close to the dark side. He quotes an open letter to Jobs posted by Mac developer Will Shipley:

“If Apple becomes a company that uses its might to quash competition instead of using its brains, it’s going to find the brainiest people will slowly stop working there. You know this, you watched it happen at Microsoft.”

“Apple is inching ever closer to evil,” writes Y Combinator’s Paul Graham, using the word in Google’s low-bar don’t-be-evil sense, “and I worry that there’s no one within the company who can stand up to Jobs and tell him so.”

Gruber won’t call Apple “evil,” but concludes by saying he’s right there with Graham in that sentiment.

“And I say this not in any sort of hippy-dippy sense of expecting or even hoping for Apple to behave selflessly, holding them to a separate idealistic standard, or expecting them to fight with one arm tied behind their corporate back. And only a fool would argue that a company should never seek redress through litigation.