Free isn't free once it's become fodder for the IP patent trolls. HTC who is building an Android phone, now has to pay Microsoft for patent rights on that phone. And after Apple's lawsuit against HTC ends up getting resolved, I bet that they'll be making payments to Apple as well. Software patents give Microsoft and Apple the ability to punish Google for its audacity of entering the growing smartphone market. It's ironic that the only people who won't get paid for the HTC Android are the people who wrote the code in the first place.
I remember the first patently stupid patent I heard about was for an xor cursor (#4,197,590), when it was already in such common use everywhere it seemed ridiculous and offensive to patent it. Patents aren't supposed to be covering prior art, nor "obvious" inventions. That is one serious thing wrong with the software patent system. People who do open source development leave all their code out there to be examined and combed through. Combed through by lawyers for similarities to an existing patent arsenal. When a developer is clearly ripping off someone else's work, then a software patent makes sense. But if it's already floating around in the either or its obvious, it shouldn't get patented. Neither of those things is anywhere near possible for the patent office to determine with any amount of rigor. It seems fundamentally unfair that the only people who get to profit from software inventions are the ones with the cash and the time to pursue the patent process: big sharks, not little fish.
I'm not arguing on the validity of Microsoft nor Apple's patents. They could all be great inventions and 100% absolutely legit. And it's not Google that I'm worried about for protection against patent lawsuits. They're plenty big enough to take care of themselves. And I'm sure that HTC can just bump up the cost of their phones by a few bucks to pay for all the patents they're now licensing or will have to license. It's all the other hordes of software developers creating open source software on their spare time using their goodwill. Developers that don't have the time or resources to patent everything they've done. Developers who wouldn't know that what they're creating in the dead of night is accidentally similar to something in someone else's IP portfolio.