It seemed as if the last straw for Apple was how OpenAI failed to respond to complaints about trade secret theft, but the ChatGPT maker says it did reply and the real problem is a lack of attention to detail by Apple's lawyers.

Apple is suing OpenAI over alleged theft of intellectual property, and initially the firm's response was an empty claim of being unaware of the issue. However, as first spotted by NBC, OpenAI's lawyers are now concentrating on an issue they seem to think derails the whole suit.

Reportedly, despite Apple saying that OpenAI failed to even respond to its allegations of trade secret theft, the company says it did. A source that is unknown but difficult not to guess, has shared OpenAI emails with NBC and they apparently do confirm that the firm responded.

So Apple's suit may be pointing the fingers incorrectly at who's at fault for no response. It doesn't change Apple's accusations, but it does give OpenAI the ability to deny that one specific, and headline-gathering, charge of ignoring the complaint.

It's very unclear what happened or what the sequence of events was as it pertains to legal communications. Apple's outside counsel is said to have mixed up two OpenAI employees, ones with the surnames Chang and Wang.

There is a hinted suggestion that this confusion was racist, but those are not even very similar surnames. Then, too, Chang isn't even a surname in this case.

Instead, a key figure in Apple's case is its ex-employee Chang Liu. Add to this that the confusion may have been over roles rather than names per se.

It's not known whether this Wang has a similar role to Liu. Also not clear is if they were both among the 400 Apple employees poached by OpenAI.

Wrong email or wrong filing

The reporting is specifically that this unnamed counsel confused their email addresses, but Apple would not be emailing ex-Apple employee Liu directly over the trade secret theft complaint. It's possible that this counsel made the mistake in a filing instead of emailing, but if that's the case, it is a startlingly unusual error for Apple's legal teams, that will have little consequence as the case grinds on.

Apple claimed that OpenAI ceased having an email conversation about the situation after this mixup. That suggests that the counsel sent an email to the wrong person, but then that raises a number of questions that will likely only be answered in discovery.

It is also reported that this counsel later apologized for the email mistake. So the error was spotted, and while this is not 100% confirmed, the apology as it is laid out by NBC News appears to have come before Apple filed its lawsuit against OpenAI.

If an email was sent by Apple to the wrong person, it seems implausible that the counsel did this when there was already an existing email thread to the right people. It seems unlikely that counsel would email any single individual about such a serious matter without CCing multiple people on both sides.

It's also extremely unlikely that a random employee in OpenAI would not have forwarded the email to their own internal counsel. In fact, we have been told by a source inside the company that the company's code of conduct requires emails to staffers threatening legal action be forwarded to legal counsel.

Then even assuming that they did this, there's the question of when they noticed, to whom they apologized, and how everyone responded.

What happened next

Apple clearly filed a lawsuit, but it's not known yet whether that was after any further attempts to continue the conversation with OpenAI. The suggestion is that OpenAI ceased communicating with Apple because of this mix up, but that seems unlikely.

It might not be clear precisely what the mix up was, or at what stage either it or Apple's apology happened. But it was not the first contact Apple made, it definitely came later in any exchanges.

So Apple had contacted OpenAI about trade secret theft, and OpenAI had responded. Even if there were wrongly addressed emails after the initial contact, the two companies had begun discussions and it's impossible to believe that OpenAI would think the matter resolved.

This is a case that could have the most enormous impact on OpenAI's whole future. So it just does not ring true that neither side pursued the matter further.

Without the full text of all of these emails, including address headers, it's impossible to determine either what really happened, or over what period it occurred. Presumably Apple waited for a reply that then didn't come, but it's not clear how long they waited.

It's also not clear why they didn't email again after the mistake was spotted.

Since this is such an enormous accusation, it's baffling why Apple's counsel didn't pick up the phone and ring CEO Sam Altman.

Or for that matter, Tim Cook could have done so. He has done so in the past, most notably with Elon Musk.

The whole story may never be told in full, even a decade after the fact. It's been almost that long since Apple vs. Samsung concluded, and very little has escaped the sealed records from that one.

Bad optics

None of this new evidence changes the accusations of trade secret theft. It's more a schoolyard kind of rebuttal of a singular point that isn't crucial to the suit, leaked to the press.

But it does mean that Apple was wrong when it unnecessarily said in its lawsuit that OpenAI failed to respond.

Really the argument and complaint is that OpenAI was involved in systemic theft Apple's trade secrets. The "failed to respond" bit is headline-gathering, but not a legal claim in itself.

This is what the eventual trial, just the latest for OpenAI, will concern. The email mistake wasn't a bad misstep by Apple, and wrongly claiming that OpenAI ignored its complaints is only noise.