Faced with the growing threat of the Android army of smartphones to its best-selling iPhone, Apple unleashed a litany of litigation to try to stop sales of the phones.  Google is too powerful to attack head on, so instead Apple is trying to pick off the hardware makers, starting with HTC, makers of the Hero, MyTouch, and Nexus One.  There are a lot of questions over whether Apple's barking up the wrong tree, however, given how broad and vague its patents seem.

Jonathan I. Schwartz, former CEO of Sun Microsystems, sounded off in a blog in which he recalls a similar incident in which Apple CEO Steven P. Jobs threatened to sue his company.  

The event occurred back in 2003.  Sun Microsystems had just unveiled "Project Looking Glass", a prototype Linux desktop with a rich 3D graphical desktop environment – Apple wasn't happy about that.

Jobs contact Schwartz, warning that the Linux project was "stepping all over Apple’s IP" and that if they put it out on the market, "I’ll just sue you."

However, Schwartz was wily and knew how to fight back.  He had helped found Lighthouse Design, which made software for the short-lived NeXTSTEP operating system, which was acquired by Apple with the purchase of NeXT in 1996.  A Lighthouse NeXT product, Concurrency (presentation software -- think PowerPoint), looked eerily similar to Apple's recently unveiled Keynote.

So Schwartz fired back at Jobs, "Steve, I was just watching your last presentation, and Keynote looks identical to Concurrence – do you own that IP?  And last I checked, MacOS is now built on Unix. I think Sun has a few OS patents, too."

Jobs was quiet and never threatened Schwartz about the product again.

He notes that Jobs isn't the only litigation bully in the tech industry, though.  He recalls an exchange in a later meeting with former Microsoft CEO Bill Gates and current CEO Steve Ballmer, about OpenOffice, a popular Sun product.  In the meeting Gates threatened, "Microsoft owns the office productivity market, and our patents read all over OpenOffice.  We’re happy to get you under license."

Recalls Schwartz, "That was code for 'We’ll go away if you pay us a royalty for every download' – the digital version of a protection racket.  Royalty bearing free software? Jumbo shrimp. (Oxymoron.)"

Sun countered the threats with comments about the similarity of .NET to patented material in Sun's popular Java platform.  Commented Schwartz, "We’ve looked at .NET, and you’re trampling all over a huge number of Java patents. So what will you pay us for every copy of Windows?"

Again, the threats were dropped.

Schwartz says that big companies trying to bully others with litigation stinks of desperation.  He writes:

I understand the value of patents – offensively and, more importantly, for defensive purposes. Sun had a treasure trove of some of the internet’s most valuable patents – ranging from search to microelectronics – so no one in the technology industry could come after us without fearing an expensive counter assault. And there’s no defense like an obvious offense. 

But for a technology company, going on offense with software patents seems like an act of desperation, relying on the courts instead of the marketplace. See Nokia’s suit against Apple for a parallel example of frivolous litigation – it hasn’t slowed iPhone momentum (I’d argue it accelerated it). So I wonder who will be first to claim Apple’s iPad is stepping on their IP… perhaps those that own the carcass of the tablet computing pioneer Go Corp.? Except that would be AT&T. Hm.

That's some interesting perspective from one of the electronics industry's top players.  It's clear that Apple is bullying HTC; Jobs didn't even give the company so much as a hint before slamming it with a massive lawsuit.  Is Apple's suit against HTC a desperate and misguided measure?  And will Google, who supports HTC, threaten Apple back?  That could get interesting.