Originally Posted by Gatorguy
Yes you did.
Here's that post again. I think this new article warrants a reprint of it:
Here's my explanation of why Apple is suing Samsung rather than Google. It has to do with an element of patent law termed Indirect Infringement.
First, let's speak about direct infringement:
Google, when it markets and sells its Nexus line of phones and tablets incorporating Android, can be accused of direct infringement of Apple's patents. Direct infringement is the act of developing and selling a product that infringes another company's patent. If Google never sold a Nexus device, but merely kept Android in a lab somewhere, then there would be no evidence that Google directly infringed Apple's patents; there would truly be no harm done and so no reason for Apple to litigate against Google. But Google does sell Android devices and so could be sued by Apple over parts of Android Apple feels infringes its patents. However, the fact that Google sells relatively few Nexus devices means that the harm done by Google's direct infringement is relatively minor.
Now let's discuss indirect infringement.
If a company develops a technology, in this case Google's development of Android, and then licenses that technology to another company (doesn't matter for what licensing fee or no fee at all) and the licensing company (Samsung, for example) then incorporates that technology into its products, that company can be accused of indirect infringement. Of course, the company would have to be reasonably aware that the licensed technology infringed another company's patents. And it's the responsibility of the licensor to inform its licensees of any potential areas for infringement. But it's reasonable, given the high visibility and awareness of the presence of patents in the consumer electronics industry, that Google knew Android contained technology Apple would claim as its intellectual property and it's reasonable that Samsung would also know this, so there's little argument that could be made Samsung didn't know this. Therefore, Samsung can be accused of indirect infringement, which carries the same burden of damages as does direct infringement. And since Samsung is the company that sells the most product containing technology Apple claims as their intellectual property, it's Samsung, not Google, that represents the most damage to Apple and therefore reasonable that Apple would sue Samsung rather than Google.
Finally, Apple's action against Samsung is also a salvo against Google. When licensing technology for use in an end product, as Samsung licensed Android for use in its phones and tablets, a smart company will insist that the licensing agreement include an indemnity clause, where the licensor (Google) agrees to indemnify the licensee (Samsung) in the event the incorporated technology is found to do harm. If Samsung has such language in the license agreement with Google, then Samsung will be able to go after Google to recover damages it is forced to pay Apple. Then Google and Samsung can fight it out between them with respect to which infringing parts came from Android and which were later added by Samsung on top of Android (slide to unlock, for example, appears to be a Samsung addition). To Apple, it matters not how the subsequent battle between Samsung and Google unfolds; Apple, if successful in its lawsuit against Samsung, will have recovered damages from the entity that was proximate in causing the most damages.
Dilger and other columnists and analysts may be excused for not speaking to the indirect infringement angle as to the reason Apple is going after Samsung; I wouldn't expect these folks to be especially conversant in patent law. However, it does cast some light on Mueller that he hasn't made this point. Given that it's a point in favor of Apple behaving rationally in its actions, one must wonder why such an obvious point about patent law would fail to warrant mention.