Apple has been engaged in heated legal battles around the world claiming that Android smartphones and tablets infringe on its patents. Android loyalists see the legal attacks as a desperate, oppressive move by Apple to stifle competition, but perhaps the success of Android is a function of the ways it "borrows" Apple intellectual property.

According to leaked excerpts from the Steve Jobs biography which will be officially released tomorrow, Jobs is quoted saying, "I'm going to destroy Android, because it's a stolen product. I'm willing to go thermonuclear war on this."

Jobs is also credited with stating, "I will spend my last dying breath if I need to, and I will spend every penny of Apple's $40 billion in the bank, to right this wrong."

Sleeping With the Enemy

It doesn't take too much imagination to understand how Android could be a knock-off of iOS. Apple and Google were buddies--allies against Microsoft in that "the enemy of my enemy is my friend" sort of way. Google's CEO--now Chairman--Eric Schmidt was a personal friend of Steve Jobs and sat on the Apple board of directors.

Seeing Google and Schmidt as partners against Microsoft--more importantly partners that didn't compete directly in key areas like mobile devices and operating systems--Apple and Jobs would have felt comfortable sharing details of iOS. Schmidt was in a position to get confidential information on the strategy and vision for the future of the iPhone and possibly even the embryonic concepts of the iPad.

I am not suggesting Schmidt set out to infiltrate Apple in an act of corporate espionage. It is possible, however, that Schmidt saw the genius of the Apple roadmap, but disagreed on certain aspects of implementation--like the "walled garden" approach of Apple--and decided to build a more open version of the same thing with Android.

Perhaps Schmidt "stole" from iOS without even being conscious of it.

An Inside Job

When it comes to Samsung, things get even stickier. Not only is Samsung using Android as the operating system in its flagship smartphones and tablets, and now portable music players, but Samsung devices are identical in form and design as well. The Samsung smartphones and tablets are virtually identical hardware to Apple mobile devices, running an operating system that seems to "borrow heavily" from Apple software concepts.

Like Schmidt with the iOS software, Samsung was in a somewhat unique position to know intimate details of the Apple hardware and architecture. Samsung is a key supplier of chips and displays for Apple smartphones and tablets, and may have had inside knowledge that it employed in developing its own competing devices.

Maybe the reason that Samsung is the number two maker of smartphones behind Apple, and the reason that the Samsung Galaxy Tabs seem to be the only Android tablet enjoying some sense of success in the market is because they so closely mirror the Apple iPhone and iPad.

No Surrender

There is some additional evidence to support the quotes from the Steve Jobs biography. Intellectual property and patent analyst Florian Mueller recently uncovered information from legal filings in the case between Apple and Samsung in Australia that demonstrate that Apple is not interested in collecting a licensing fee. It wants the infringing products banned, and its intellectual property protected, and it has no intention of selling it to Samsung, HTC, or anyone else for a few dollars per unit.

A blog post from Mueller outlines in detail some of the passages from testimony that show Apple's commitment to defending its patents. Mueller sums up with, "Apple is prepared to give Android device makers a license to "some lower level patents" but it wants to reserve various design elements and functionalities exclusively for iOS."

What If?

I am not a lawyer, nor am I a patent attorney. I am admittedly speculating.

In general, I agree that patent litigation is getting out of hand. It has become a standard operating procedure and part of the normal business model for hardware and software makers.

I don't agree with patent trolling, or using patent litigation as a strategic weapon to stifle competition. However, I do support the defense of patents and intellectual property that are legitimately being infringed upon. What if the Android OS and the devices it runs on actually infringe on patents held by Apple?

There is no denying that Android has been a tremendous success in smartphones. It has stumbled (repeatedly) out of the starting gate in tablets, but I imagine it will eventually make up ground and one day surpass Apple's iOS in that arena as well. But, it is possible that Android owes its success to concepts and technologies it does not have a legal right to make use of.

If a company came out with a new cola beverage that tasted just like Coca Cola, and its sales surpassed those of the iconic beverage giant we might put that company on a pedestal as a shining example of American ingenuity and commitment to excellence. But, if we later found out that the new cola only exists because its founders served on the board of Coca Cola and literally stole the secret formula for Coke, our opinion of that beverage and the success of that company would change dramatically.

The fact that Android is successful should not have any weight on determining whether it achieved that success by violating Apple patents. The impact an injunction against Android devices might have on the smartphone market should not be sufficient to excuse profiting from the theft of intellectual property.

It's easy to paint Apple as the bad guy and jump to the conclusion that its patent suits are just a sign of sour grapes over the success of Android. It seems apparent, though, that Steve Jobs was absolutely positive that Android is stolen and he had no intention of backing down or compromising with licensing agreements.

What if Steve Jobs was right?