I think that the open source product model is inherently brittle. You're hoping that the additional market uptake, from it being open, will offset the risk of someone forking your code and competing against you. Typically, people don't, since you're the established name, and probably understand the code better, and can add new functionality faster than anyone else who's come later to the game. But it's still a risk.
In this particular case, Java and the JVM have existed long enough, that outsiders have gained sufficient expertise, that they can compete against the originating company. And that's been exasperated by the code being more open and more available. Along comes Google, who doesn't actually have to compete with Sun, in that they don't have to directly sell their Java derived product, instead they can give it away, as they plan on making money from the apps and the advertising. So now, we've established that the open source model isn't so much threatened by direct competition, as it is from orthogonal businesses, who will take it and dissolve your market as they make money in some other, indirect way.
So while I'm generally against software patents (especially the patent troll scenario of the patent holder not having implemented anything, which is not the case here), I first and foremost want my field to be a place where people can actually make a living, and not have everything stolen out from underneath them.
Everyone here seems to revel in their little lawyer ability to talk about copyright and patents. That's great, I'm glad we're all educated about that. But it seems to be getting in the way of comprehending the simple situation of someone absconding with other's work, and collapsing their revenue stream, and how that could drastically affect future investment and development for the entire industry.
But yes, let's continue on the discussion of the specifics. Google (via Harmony) copied the java libraries. That's alright, because it's open source. And it's even more alright, because they did it clean-room reverse engineered. But, don't tell me for a second that the source being open didn't help those clean room efforts. There are tonnes of APIs that are just not sufficiently javadoc'd to get the exact same behaviour. The untainted reverse engineers can still ask questions which tainted people can answer, because the tainted people have a better understanding of the libraries, from having seen the code. And the people who've made the Java -> dex conversion, and the people who've worked on Dalvik have definitely read some of the source, and benefited from it. So, clearly, openning the source could only be done, with a hope of continuing to maintain the IP, by relying on the software patents. Without them, Sun would have been idiots to open anything up at all ala GPL.
With your WINE example, it's actually completely different, in how it actually affects Windows. Windows is a near monopoly that has resisted a lot of direct competition. WINE will never collapse their market. And WINE doesn't somehow corrupt and fork Windows, it actually tries to be as compatible as possible. Google is taking the Java community of developers, and guiding them to make apps that will not work in a JVM. They are taking and removing from the Java community. WINE reinforces the Windows community. It actually makes people less likely to develop for Linux, and instead target Windows, and tell people to run WINE. So while Microsoft might lose some box sales of Windows because of it, their developer community and market as a whole, are reinforced by it.
