Why your cousin Merle can't make his own smartphone

There are over 250,000 patents and 5 million claims at play inside your pocket. Many smart folks think that's a bit nuts.


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Android is, at its core, an open-source software project that anybody can download and tinker with. Your cousin Merle, if he was handy with Java, Eclipse, Git, modern hardware architectures, and software design principles, could create an Android phone all on his own. So what keeps the MerlePhone from impressing us all with its simplified, plain-folk appeal? Patents, that’s what.

The Planet Money team is skillful in explaining the anti-competitive fiasco that is the software patent scene. In particular, their co-produced episode of This American Life, “When Patents Attack”, explains all the brinksmanship, the Vonnegut-evoking insanity, and quiet Texas strip-mall offices that keep smart ideas from making their way to market.

[ How to: Solve your Android problems with this fix-it flowchart ]

Smartphones are the apotheosis of What’s Wrong with Software Patents. They’re tiny devices that can do, as any ad will tell you, hundreds of useful and sometimes unimaginable things. Many of those things used to be their own industries, industries already stocked with patents. And smartphones are also major profit centers and sources of innovation today. That’s why one of every six active U.S. patents relates to smartphones. That’s why there are 250,000 active patents that cover the design and operation of modern smartphones. And each of those patents likely makes around 20 claims to protecting various smartphone designs and operations, adding up to 5 million potential restrictions against the MerlePhone.

Cousin Merle probably doesn’t have his own warehouse full of attorneys and engineers down in Clay County to review 250,000 patents and 5 million claims. Honestly, though? Even Google doesn’t have those resources, and would rather just not look at all and hope for the best. That’s explained in “The Case Against Patents,” a paper written for the Federal Reserve Bank of St. Louis:

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