Comment by interlocutor | Hacker News Reader

Comment by interlocutor | Hacker News Reader

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I noticed you italicized the word grant. In reality the "grant" isn't granting; it is taking away. Let me explain:

If React didn't have an explicit "grant" there would be an implicit grant. Is the explicit grant better than an implicit grant? It isn't because the explicit grant has what is known as a strong retaliation clause.

More info on weak vs strong retaliation clauses: http://www.rosenlaw.com/lj9.htm

React's patent "grant" gives you a license to React's patents. This sounds like a good thing, however, the "grant" has a "strong retaliation clause" which says that if you make any sort of patent claim against Facebook this patent grant automatically terminates.

Which means Facebook can now sue you for patent infringement for using React. You may think this is no worse than not having a patent grant at all. But that's not the case. If React didn't have an explicit patent grant then there would be an implicit grant which does not have any retaliation clauses, and cannot be revoked.

If you work for a software company and your company has patents then keep in mind that by using React you are giving Facebook a free license to your entire patent portfolio.

> If React didn't have an explicit "grant" there would be an implicit grant.

Please provide a citation to any court decision so holding, or to the text of any law that clearly implies this.

The reality is that a couple of lawyers have come up with the speculative theory that maybe, some day, a court will read the plain text of the BSD license as granting an implicit patent license because some of the words its uses are kind of similar to the words used in a seemingly unrelated law.

This theory is...tenuous at best. More to the point, it's just a theory about what a hypothetical court might rule one day in a hypothetical case. (Plus, I mean, hypothetically the court might rule that an explicit grant can't limit the rights granted by an implicit grant in this case. Since we're just speculating about what new rules a future court might hypothetically make.)

> If React didn't have an explicit patent grant then there would be an implicit grant which does not have any retaliation clauses, and cannot be revoked.

I'm not a lawyer. My understanding is that this is hypothetically possible but stands on shaky legal ground and has no legal precedent. Whether or not an implicit grant exists seems to depend on who you ask. This is apparently why GPLv3 includes an explicit grant.

It could also be that there aren't any patents that cover React. I don't personally know of any that do.

If React doesn't have any patents then Facebook could solve this issue by removing the "grant" or by removing the strong retaliation clause from the "grant".

I am not a lawyer either, but I think the idea of implicit grant is compatible with common sense.

The link you gave doesn't use the word implicit and actually says:

> Wherever possible, make sure you have an explicit license to any necessary patents held by the licensor.

Then it goes on to distinguish between weak and strong grants.

I think you mean weak, not implicit. AFAICT, there isn't an implicit grant with patent law, because the default is that you're infringing without an explicit grant.

The link in the original post was about strong vs weak retaliation clauses in an explicit license, but the parent is also talking about implicit patent licenses, which do have some case law and opinions surrounding them in the United States [1].

The theory behind implicit patent licenses is that the licensee (often the buyer) will have some idea about which rights they have to the thing they are licensing, absent any other agreement. For a software license like the 3-clause BSD, this means that if they are licensing the software from the holder of the patent, they can reasonably expect to not subsequently be sued for infringing on the patent while following the terms of the license.

Omitting any kind of patent mention from your product's license, and later claiming infringement for reasonably expected use, would look subversive and generally be unconvincing.

[1] http://en.swpat.org/wiki/Implicit_patent_licence#USA

If there was such a thing as an "implicit" grant, then there would never be patent infringement cases.

>It could also be that there aren't any patents that cover React.

If that is the case, why have this controversial patent clause at all?

I haven't read them all, but Facebook seems to have a number of patents which at first glance are so broad they could apply to react:

https://patents.google.com/patent/US20160092096A1/en "a method performed by one or more computing devices including defining a hierarchical structure for a user interface (UI) that includes defining one or more layers of the hierarchical structure, adding one or more objects at each layer, and specifying one or more relationships among particular objects"

https://patents.google.com/patent/US20160091953A1/en "Adjusting mobile device state based on user intentions and/or identity"

https://patents.google.com/patent/US20150277691A1/en "In one embodiment, as a user is scrolling through a first series of content items and reaches the nth content items from the first series of content items, display a visual indication that there are additional content items from the first series of content items existing after the nth content item."

https://patents.google.com/patent/US20150113066A1/en "A communications system including one or more alert gates and an alert controller. Each alert gate is configured to detect a different type of alert feed corresponding to a particular kind of alert. The alert controller is connected to the alert gates and operable to receive detected alerts from the alert gates and to deliver the detected alerts to a user of the communications system."

https://patents.google.com/patent/US20160086219A1/en "methods and systems that allows for improved user navigation within a group of content items."

I actually had no idea Facebook's patent portfolio was so broad. There are countless more: https://patents.google.com/?q=G06F3%2f048&assignee=Facebook+...

I think that rather strengthens the argument that Facebook's patent grant isn't a good reason to avoid React, given that almost any possible webapp written with any framework is likely infringing. :)

That list of patents reads like an Onion article. Is there a joke I'm missing here?

> Is there a joke I'm missing here?

other than the unmitigated absurdity that is the patent system these days?

Did you also read the patent's text, or just their title and high-level description?

Even the text of some are pretty much as expected. It seems that they have a patent on single page applications (SPAs) to-a-T [1], elaborating that an application may use mechanisms like XHR and append an identifier to the fragment portion of the URL to keep history.

Even if I subscribed to the idea that this was without prior art on the web in 2009, equivalent functionality already existed in desktop applications. To claim that it is a novel invention because it now works on a web page is disheartening. It's exactly this kind of behavior--claiming new ownership based on each abstraction--that leads to restrictions in some countries on patents which can only exist in software.

[1] https://www.google.com/patents/US20110055314

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