Apple to ITC: Google's Android Infringes on Our API Patent

Apple (NAS: AAPL) is alleging that archrival Google's (NAS: GOOG) Android mobile operating system began taking shape almost two decades ago, while Google senior vice president and Android chief Andy Rubin was employed within the Apple ranks, a charge that could have significant legal implications for future Apple suits against Google and could also impact Google's proposed $12.5 billion acquisition of device maker Motorola Mobility (NYS: MMI) .

In a reply to the International Trade Commission's ongoing investigation into Apple's complaint against Android device manufacturer HTC, Apple states "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, as the evidence revealed at the hearing, 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 [realtime API] patent at the exact time their invention was being conceived and developed." (The patent in question, U.S. No. 6,343, 263, details a "real-time signal processing system for serially transmitted data.")

"It is thus no wonder that the infringing Android platform used the claimed subsystem approach of the '263 patent that allows for flexibility of design and enables the platform to be 'highly customizable and expandable' as HTC touts," Apple continues. "While Mr. Rubin's inspiration for the Android framework may not be directly relevant to the pending petitions for review, that HTC felt compelled to distort this history is illustrative of the liberties it takes in attacking the ALJ's [initial determination] and the substantial evidence supporting the ALJ's findings."

On his FOSS Patents blog, intellectual property activist Florian Mueller states that because Rubin never worked at HTC, Apple's charges should not significantly impact the ITC's current investigation into the handset maker. "Should Apple at some point sue Google directly over this patent, this background could, however, have serious ramifications," Mueller writes. "Google (or a Google subsidiary like [Motorola Mobility]) would almost certainly be found to infringe the relevant patent intentionally, and willful infringement would greatly increase Apple's chances of obtaining an injunction as well as triple damages."

Mueller adds that Oracle's ongoing patent and copyright infringement suit against Google, which alleges Android "directly copied" elements of the Java programming language (acquired by Oracle in April 2009 when it purchased rival Sun Microsystems for about $7.4 billion), also charges Rubin with willful patent infringement. A July 22, 2011 order written by William Alsup, the federal judge presiding over the Oracle/Google case in the Northern District of California, states "Google may have simply been brazen, preferring to roll the dice on possible litigation rather than to pay a fair price" [for a Java license].

Alsup's order also quotes from an October 2005 email written by Rubin, which reads "If Sun doesn't want to work with us, we have two options: 1) Abandon our work and adopt MSFT CLR VM and C# language or 2) Do Java anyway and defend our decision, perhaps making enemies along the way."

Google did not respond to FierceMobileContent's request for comment.

Forty percent of all U.S. smartphones run Android, followed by Apple's iOS at 28 percent to data published last week by Nielsen. Among consumers who say they are likely to purchase a new smartphone within the next year, 40 percent of so-called "innovators" -- defined by Nielsen as the earliest of early adopters and representing 10 percent of respondents -- say they plan to purchase an Android device, followed by iOS at 32 percent.

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