A mere tic of the patent clock ago during Apple‘s January 2009 earnings call, Tim Cook fielded questions about how Apple plans to stay competitive amidst challengers like Google and Palm.  I expected to hear Tim lean on the stock technology leadership and innovation response.  Tim took a different tact and ended with “if others rip off our intellectual property, we will go after them”.  I remember thinking that it seemed a bit fiery, even slightly mistimed and awkward.  I doubt Tim  suddenly remembered Apple’s multimillion dollar patent portfolio and got all fired up, but rather it felt like an attorney coached non-answer.  Or could it be the Palm Pre was Apple’s first real competitor and the device just happens to be co-developed by a former Apple employee, Jon Rubinstein?  I doubt it.

Major wars always have numerous key events that lead up to the first shot, so this plot thickens.  Remember Steve Jobs 2007 Macworld keynote where he introduced the multitouch on the iPhone including a slide reading “Patented!”.  Steve was referring to the now famous patent #7,479,949 which is routinely referred to as the iPhone patent.  Apple immediately orchestrated numerous media releases about being awarded the multitouch patent.  It is a common practice for large technology companies to build a patent portfolio that they’ll routinely revise and loop in features to target competitors in an attempt to cut them off.  Yet, I don’t think Apple is the big bad wolf and Palm, for example, has a pretty hefty patent portfolio of its own.  If you read some of Palm’s patents, it is very easy to think that Apple’s got some ‘splainin to do.  For example, Palm’s patent #7,007,239, almost exactly describes how the iPhone uses buttons for dialing, call history, contacts and speed dial that stays on-screen as you toggle between them.  In addition, it covers pulling up contacts by just typing in initials – exactly how the iPhone has implemented it.

Meanwhile, Google’s Android Tsunami is picking up momentum and support is swelling.  While certainly not a sneak attack, perhaps the Nexus One invasion was the aggressive trigger point that motivated Apple’s patent office to abandon diplomacy and fire the first shot.  Yesterday, Apple has announced that it has sued HTC for, in Steve Jobs’ words, stealing Apple’s patented technology.

Make no mistake, this is no angry, hot-headed, knee jerk reaction – this is a war, that Apple has prepared to fight and they’re going after Google now!   This doesn’t appear to be a full frontal attack either but rather some type of island hopping strategy that starts with the Asian Android alliance, then onto Motorola and keep whittling away at the alliance.  Apple has organized a very careful first shot in this battle.  They’ve split their suit and filed in two different courts.  On one front, the suit includes 10 patent infringements covering user interaction with a touchscreen, filed in U.S. District Court in Delaware.  The more telling suit includes 10 operating system level patents, some dating back to NeXT, filed with the U.S. International Trade Commission in Washington.

It should be very interesting to see how HTC handles this suit and whether or not Google is going to get involved now.  Eric Schmidt, another former Apple executive, and Google released a statement: “We are not a party to this lawsuit.  However, we stand behind our Android operating system and the partners who have helped us to develop it.”  Of course, it is never too late or difficult to draw others into wars.  As with all patent battles, HTC and probably Google’s patent lawyers will likely find “prior art” to demonstrate that Apple’s innovations were not new.  In this case, this task won’t be any D-Day sized task as Palm sold touch-based mobile phones for years before the iPhone.  Also, a quick look at Synaptics’ patent portfolio will show plenty of intellectual property around touch screens.

I doubt this war will be won with patent battles, they rarely ever turn out that way.  But clearly Apple is trying to buy some time in order to get to higher ground as the Android tide has made landfall.  Creative innovation will win the war and the consumer should enjoy the rewards.