The problem, as usual, are software patents. Any other discussion is just a by-product of that.
At this point, thanks to peer pressure ("hey, if everyone pays up, then maybe we should, too") no company seems to dare to even negotiate these contracts anymore, let alone sue Microsoft over it. It's a tragedy.
Peer pressure is how Microsoft managed to get everyone to pay them up. They started with small "wins" against small and lesser known manufacturers, building up that extortion list that they could show to others as some kind of sick "social proof". Then they moved to small, but known OEMs, like HTC, and eventually, they took down the giant, Samsung as well, with the "everyone is already paying up" strategy. And once they got Samsung, it was over - whoever was left, or newcomers, "had" to pay Microsoft, too, and wouldn't dare question the royalties anymore.
Supreme court decisions in the US really bother me because of how far reaching they can be. They can only be overturned by a constitutional amendment or another supreme court decision.
Marriage equality in the US is great, but it also came down to a supreme court decision. If it had gone the other direction, getting an amendment added in today's climate would be extremely difficult.
We've seen lower courts rule code as speech (in the create encryption/ITAR wars of the 90s):
http://www.cs.princeton.edu/courses/archive/spr96/cs291/encr...
..but if a higher court, or the Supreme court, ruled to enforce software patents, it would create a huge block to development and innovation -- and there would be big questions about open source projects which are free as in speech. Would individual users be required to pay patent fees to use oss tools?
In some extremely shortsighted view the cost to settle might be lower than the cost to fight it. Surely the cost to settle them all is more expensive than the cost to fight now.
This is the exact same logic as a "don't negotiate with kidnappers/terrorists" stance. Once you negotiate with one you give validity to those tactics and others will try.
Giving in to either kind of blackmail makes it impossible to profit in the long run. This is exactly why Newegg fought and crush patent trolls and why HTC and Samsung should do the same.
We tried this. It led to the current insanity with software patents and software trolls. I also don't see any indication that innovation would stop if patents didn't exist (see: everything done in the Linux kernel). The trade-off is clear: patents do more harm than good. Get rid of them.
Independent inventors rarely seek patents and their best bet to contest the patent is to sell it to a patent troll, companies tell their employees to never read patent filings to not be willfully infringing and truly novel patented ideas are simply avoided until the patent expires or alternative methods are found (eg ECC crypto).
I'm sure you can find some cases where patents have served as a social good, but I expect them to be outweighed by all their negative outcomes.
It is used, because it is the only one widely compatible, especially with Windows.
If Windows supported F2FS for example, everyone would be happier.
But what would be a motivation for Microsoft to support a good, free filesystem? One, that it cannot ask a fees for?
Not to defend software patents, I still think they're a stupid idea, but for patents prior art applies to the exact workings of something, not the general idea and concept.