In the above scenario, Apple is infringing the rights of another company, who uses Apple's open source code. That company is then in a hard place. They have t

In the above scenario, Apple is infringing the rights of another company, who uses Apple's open source code. That company is then in a hard place. They have to allow the infringement by Apple, or stop using the open source software. Since Apple is the infringer in this scenario, they would not be inclined to 'first commence and action for patent infringement against You'