This is in reply to the Apache Software Foundation decision to list the BSD + Patents license as a Category-X license.
- Facebook gets attacked by meritless patent litigation
- Facebook creates the BSD + Patents license, which has the following effect :
> The patent grant says that if you're going to use the software we've released under it, you lose the patent license from us if you sue us for patent infringement.
- Facebook believe that 'if this license were widely adopted, it could actually reduce meritless litigation for all adopters'
I understand Facebook's position here, surely this will decrease meritless litigation, but what about meritful litigation?
Let's take an example, a small startup has a cool technology but also all their front-end is using React. That cool technology is patented.
Now if 'Facebook or any of its subsidiaries or corporate affiliates' infringe on that patent, that startup won't be able to sue them without first re-writing the entire front-end to not use React.
I don't think software should be patent-able in the first place anyways but it seems the situation above would still be true if that startup sues them for what they believe is a completely legitimate hardware patent.
Also, IANAL, I'm wondering what even is the definition of a 'corporate affiliate' here? Who is a 'corporate affiliate' of FB?
Finally, what 'patent license' are they referring to in this post anyways ?
The react's PATENT clause (https://github.com/facebook/react/blob/b8ba8c83f318b84e42933...) says they're providing the React software License, and they revoke this software license if you sue them.
Facebook and other large software firms have a large arsenal of patents that's sufficient to defend themselves from a patent lawsuit from a large competitor. These patents are broad. So if you're writing web software with any amount of compexity, you probably infringe on Facebook's patents. If you are a small firm that owns a patent Facebook is infringing on and you wish to litigate it, you have basically two options:
1: give up your main business so you no longer infringe on the Facebook patents. IOW, become a troll.
2: get demolished by the Facebook counter suit.
The React license doesn't change those two options one bit, it just makes it much more obvious. Facebook's intent is likely just to prevent the suits from even being considered in the first place.
This is what I find confusing, the blog post mentions a patent license that you are granted, but as you say, nobody is aware of any patent covering React. React's doesn't seem to use any novel technique in the field of CS.
But https://github.com/facebook/react/blob/b8ba8c83f318b84e42933... , the way I read it says they grant you a license to to "make, have made, use, sell, offer to sell, import, and otherwise transfer" the React Software. They don't seem to give you a license to any patent.
Facebook's license means you lose the license to React if you sue Facebook for any patents, not just for patents that are related to React. That's the core problem here.
Exactly. The "BSD + patents" license applies to _all_ of React, not just the parts of React that use Facebook proprietary technology/patents (and they haven't even identified those parts).
I'm never going to use React under this license, but this is still worrying to me because more companies could follow Facebook's lead and start using open-source as a nuclear deterrent against patent legislation.
Does the additional patent grant in the Facebook BSD+Patents license terminate if I create a competing product?
No.
Does the additional patent grant in the Facebook BSD+Patents license terminate if I sue Facebook for something other than patent infringement?
No.
Does the additional patent grant in the Facebook BSD+Patents license terminate if Facebook sues me for patent infringement first, and then I respond with a patent counterclaim against Facebook?
No, unless your patent counterclaim is related to Facebook's software licensed under the Facebook BSD+Patents license.
Does termination of the additional patent grant in the Facebook BSD+Patents license cause the copyright license to also terminate?
Does the additional patent grant in Facebook BSD+Patents license terminate if Facebook infringes upon your legitimate patents and you sue them as is right and proper?
Yes.
Does the additional patent grant in Facebook BSD+Patents license terminate if React infringes upon your legitimate patents and you sue another company using React over this?
Yes.
> Does termination of the additional patent grant in the Facebook BSD+Patents license cause the copyright license to also terminate?
If Facebook has any patents that are related to React, and you lose the grant for those patents, then Facebook can sue you over them if you use React.
If Facebook doesn't have any patents that are related to React, then why do they have a patent grant?
No, they can't sue you for using React any more than, say a maker of a coffee machine can sue you for using it to serve coffee in your restaurant. You still retain the BSD license, which is an irrevocable, worldwide right to redistribute React.
Facebook has thousands of patents. If you sue Facebook for patent infringement, their lawyers are going to comb through their patent portfolio and look for things that you might be infringing on. That's standard, and to be expected, with or without the React patents clause.
They can sue you for using React if they have patents that it infringes. That's kind of the whole point of the patent grant, to allow you license to those patents to cover your usage of React.
A common understanding of the BSD license is that it has an implicit patent grant, but the existence of the explicit patent grant presumably negates the implicit one, meaning if you lose your explicit patent grant (e.g. by suing Facebook when they infringe one of your patents), then you have no protection from Facebook suing you over your usage of React.
Doesn't that only help if we have a react clone to drop in place? That's not necessarily hard to do without patents, but does it exist?
Edit: I think I see what you are saying. It says you lose the patent license, not necessarily the license for the software that doesn't have a patent, so doesn't do anything. Not sure how a judge would decide to interpret it though.
- Facebook gets attacked by meritless patent litigation
- Facebook creates the BSD + Patents license, which has the following effect :
> The patent grant says that if you're going to use the software we've released under it, you lose the patent license from us if you sue us for patent infringement.
- Facebook believe that 'if this license were widely adopted, it could actually reduce meritless litigation for all adopters'
I understand Facebook's position here, surely this will decrease meritless litigation, but what about meritful litigation?
Let's take an example, a small startup has a cool technology but also all their front-end is using React. That cool technology is patented.
Now if 'Facebook or any of its subsidiaries or corporate affiliates' infringe on that patent, that startup won't be able to sue them without first re-writing the entire front-end to not use React.
I don't think software should be patent-able in the first place anyways but it seems the situation above would still be true if that startup sues them for what they believe is a completely legitimate hardware patent.
Also, IANAL, I'm wondering what even is the definition of a 'corporate affiliate' here? Who is a 'corporate affiliate' of FB?
Finally, what 'patent license' are they referring to in this post anyways ? The react's PATENT clause (https://github.com/facebook/react/blob/b8ba8c83f318b84e42933...) says they're providing the React software License, and they revoke this software license if you sue them.