In another massive twist in the mobile patent wars Apple is now claiming that it invented Android, Google’s popular mobile OS for smartphones and tablets.

In Apple's case against HTC – where an International Trade Commission (ITC) judge has upheld that HTC has infringed two of ten Apple patents asserted in investigation no. 337-TA-710 – Apple lawyers are alleging that Google’s Senior Vice President of Mobile Andy Rubin has taken Apple inventions started while he worked at Apple in the early 1990s and used them in the development of Android.

Rubin was a manufacturing engineer at Apple between 1989 and 1992.

In his blog Florian Mueller, a patent litigation and intellectual property expert, quotes the Apple allegation:

“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.

“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.

“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.”

Mueller believes this statement has major implications for not just this particular case against HTC but for the very survival of Android: “Apple now asserts - in a filing with the ITC, which means Apple has a legal obligation to make truthful representations of fact - that Rubin's superiors at Apple were the inventors of that realtime API patent and he worked for them at the very time they made that invention. He worked as a low-level engineer while the inventors were senior people. It's possible that he then contributed to the implementation of the claimed invention.”

“In legal terms, since Rubin never worked for HTC, this doesn't have nearly as much weight in the ITC investigation of HTC's Android-based products as it would have if Apple ever decided to sue Google itself.”

“Google 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.”

Apple is waging a patent infringement war on several makers of Google Android devices, including most publicly Apple vs Samsung.