That's the key question here and the answer is, probably no one.
Android was a Linux, backed by Google. Their problems weren't with the operating system. In theory a mobile Internet client should be no different than a desktop Linux. But every aspect of the design for any “smart phone” – from how it takes calls, to the user interface, to the way apps interact – is covered by literally hundreds of patents.
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Some are held by giant companies which use them to pry open markets.
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Some are held by “development companies” like Interdigital, who research, invent and patent things for a living. (Interdigital invented one of the first digital encoding schemes, TDMA, back in the day.)
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Others are held by trolls like Lodsys, law firms that pick up minor claims at the patent office, expand them into grand conspiracies, then hold up every company in the mobile ecosystem for big gobs of cash.
You can't invent a way around these patents. If the present patent-and-copyright regime were in place at the dawn of the PC age, I'm sure we'd all still be driving IBMs with twin floppies.
Software patents are bad law for two main reasons.
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They give lawyers an excuse to file their own private taxes on any innovator, slowing innovation, eventually slowing it to a crawl. Meanwhile nations without such court-created regimes, like China, are free to innovate all they want and run rings around us.
- You can't invent your way around these patents, unlike drug patents, which specify compounds, or device patents, which are published so rivals can improve them. Patents granted on concepts don't have to show an actual invention. They don't have to publish the code. Which means you can't do the same thing, or something similar, in some other way. You can't patent a new mousetrap if someone has already patented the trapping of mice. You have an absolute monopoly on an entire industry that last for 20 years or more.
America is shooting itself in the ass with this software patent regime. Software can be well-protected by copyright. It's done in the open source world routinely. You can audit code to find protected segments, then write around them if you don't want to license them. You have a choice.
Not true with these patents. Conservatives are right in that court-created law is often bad law. They use that argument constantly against decisions that go against them. But this State Street case seems to have gone their way, so they're quiet on that front.
Just as they're quiet on the Southern Pacific case of 1886, which granted “personhood” to corporations – immortal persons that can't be put in jail and thus can act beyond the government's control, becoming (in our time) the real government.
Our Galtian overlords are screwing us, and maybe when they tear that Android from your hand you'll get mad enough to do something about it.
Meanwhile, no one is going to make a Mozilla phone. Open source is no protection against the patent trolls.
They got us surrounded, pardner.
