Red Hat and IBM have done extensive work and spent millions of dollars clearing a lot of open source code of patent worries, using a combination of lawyer review and patent pooling. If, after all that, they advise against using something -- I am going to listen.
They don't sell licenses for openssl, they just avoid it, based on multiple independent legal advisors.
We should take the hint...
When they actually start winning some courts cases (last I checked years ago, they lost), then I'll put more thought into the issue.