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Comment by carussell | Hacker News Reader

> As I understand it: To use React, you give Facebook permission to use any of your software patents throughout your whole company.

That is, on its face, absolutely untrue. Nowhere in the React patent terms does it specify that you grant Facebook rights to use your patents--not even to ones related to React.

That's something that isn't in the React terms, nor does it seem to show up in any legal analyses published online from a lawyer making that claim. (None of the analyses I've seen, at least; if you found some, please post them.) In fact, the only place where this claim does crop up is in off-the-cuff message board comments.

FWIW, I don't use React, I don't want to, I'm not a Facebook employee, and in fact I think the world would be a lot better off with Facebook having less influence than they do today. But that doesn't change how weird it is to keep seeing comments like yours that make claims like the one above.

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It maybe "on its face absolutely untrue" but it is true in practice. If Facebook infringes your patent and you sue them to enforce you lose the rights to use any patents React requires. So while you're not required to grant Facebook rights to use your patents, you are required not to enforce your rights relating to your patents against Facebook.

A company the size of Facebook can't really get away with that scheme even if it were intentional. For one thing, I can sell the patent to a troll and let them do my dirty work. Or a company could buy you solely to get fuel to sue Facebook over.

If Zuckerberg signs a paper with the wrong title, there's a troll lawsuit the next day. So if you make a habit of "in practice" strongarming people, you can easily slip up and have a huge headache on your hands.

> A company the size of Facebook can't really get away with that scheme even if it were intentional.

You maybe be right, but why would I want to take my chances?

What if there was no patent grant, and just the BSD license?

Then you have no patent protection in the first place! You are in the same situation as when the patent grant expired because you sued them. I don't see how this is any better.

You do not give them a license to use any patent. You are right that in practice the non-enforcement means that they can willy-nilly use your patents. But if we are arguing about factual ability vs legal rights - they can probably already to that, due to the fact that they likely have more money and better lawyers then you do.

You are in a better place though - because you're not the only react user. If indeed it turns out there are some submarine react patents facebook owns, with this patent license most other users can continue to work. Without the license, facebook then has the choice to either sue everybody (kind of unlikely) or to create the situation wherein suddenly everyone knows that they're infringing but haven't yet been sued, or to retrospectively grant the license (probably losing trust).

And if you do have the license - then what? It's still a react death-knell should any submarine patent appear; no large company is every going to agree to such an assymetrical deal.

Better to at least be left in the situation where it's likely in facebook's own interest to never surface any (so restrictively licensed) patents in the first place.

> no large company is every going to agree to such an assymetrical deal.

The thing is, if you just use react for something inconsequential, and can live with the fact that you have to cease using it when you sue Facebook, then it is fine.

You shouldn't base your business on Facebook's (potential) patents, and then attack them with your own patents - but that is true with or without the patent grant.

Of course, what would be great would be 1) a finer grained, symmetrical patent grant, or 2) a bilateral agreement between your company and Facebook instead of the patent grant. If you are big enough and have patents, you can probably negotiate something like that.

> You shouldn't base your business on Facebook's (potential) patents, and then attack them with your own patents - but that is true with or without the patent grant. [...] If you are big enough and have patents, you can probably negotiate something like that.

The chilling future effect, which I believe is the primary driver of op worries, is what if you build on React and are the next Facebook? (I.e. you are growing quickly to become "big enough" but are not yet)

Old Facebook now how a lot more leverage on you at several critical moments -- either in terms of making an offer, or in the negotiations around a more reciprocal patent licensing deal, or the aforementioned infringing of your patents, or the mere threat of either if someone else makes an offer.

The entire point of ladder kicking is to build a moat to ensure that others can't grow past you in the same way you did, and this is pretty effective at that (intentionally or unintentionally).

As you said, a more reciprocal, more finely-scoped patent balance would resolve these concerns. (E.g. "if you sue Facebook over a patent involved in React...")

My understanding is that if a company open sources a patent protected code (with one of the standard open source licenses without any additional patent clauses), the company grants anyone the right to use the patented technique without any obligations to the company. Otherwise we would see many cases of code released on liberal licenses, such as MIT, that no one is allowed to use, unless they pay for the patents separately.

That's definitely not the case. Some licenses like Apache-2 explicitly grant you the use of necessary patents. Others do not. And there are projects which are absolutely covered by patents, yet the code is opensource. That was the situation with Gif and MP3 formats for years.

I was involved with an opensource project which got a patent application submitted by the company. Even though I pointed out prior art. And even though I refused to sign the application as one of the authors. That's corporate environment for you.

As far as I know GIF and MP3 decoders were made open source not by the patent holders, if the patent holders open sourced the decoders, would they be able to enforce the patent rights?

The license of an open source implementation is granted by the authors and allows you to make copies and derivative works, while a patent grant comes from the patent holder and allows you to actually use the software. They are two completely independent things.

Yes, you're right that "BSD+patent"+"revoked patent grant because you sued Facebook over another patent" is pretty much the same as just BSD from the start. Licensing software you know you have patents on under BSD only with no patent grant would be pretty awful, of course.

If Facebook wanted to be the good guys here they would license under Apache 2.0 or write their own symmetric patent grant. They already relicensed RocksDB after Apache's move, perhaps they will do the rest of their stuff too.

> "BSD+patent"+"revoked patent grant because you sued Facebook over another patent" is pretty much the same as just BSD from the start.

Not really. If you have BSD with no patent grants you can at least argue that there's an implicit patent grant. If there's an explicit patent grant which you violated/got terminated that defence is clearly not going to fly.

I'm not a lawyer but my understanding is the case for an implicit patent grant with BSD is pretty weak.

Companies shouldn't be dictating what happens if they're sued; it's a government right just like it's a natural right to accuse someone of theft. People shouldn't be sabotaged of their right to sue based on some arbitrary terms meant to block people from suing, their right to accuse someone of theft.

The fact that GPL licenses went for a patent grab (on hardware patents too) with an implicit patent grant paved the way for Facebook. It's just a very bad idea, unless you think all intellectual property should be swept into the dustbin of history, of course.

> Nowhere in the React patent terms does it specify that you grant Facebook rights to use your patents--not even to ones related to React.

I detailed the specifics.

Take this example:

In exchange for doing graphic design on your menu, I stipulate that I can shut down your bakery if you take me to court when I eat from the bakery without paying. Now, sure, I haven't granted you the right to come eat my wares, but I'm going to have to shutdown my shop to keep it from happening.

In this case as long as you change the menu you can go back and enforce it, but with software, it isn't as feasible (say you had a game built on top of Raknet, which has the same PATENTS rider).

It's a de facto one-way "all your patents are available to us" grant, because you can't sue them if they violate any patents you may have, without ceding your l̶i̶c̶e̶n̶s̶e̶ ability to use React.

EDIT: better?

> without ceding your license to use React.

Ceding your license to use any patents Facebook may or may not have on React. There's a difference.

You can't legally use React without a patents license. The difference between the patents grant and the copyright license is mostly in the timeframe they cover (20 years for patents, 100+ years or whatever for copyright).

> You can't legally use React without a patents license.

I'll send you US$50 if you can find ANY evidence this is true in the US, UK, Aus, or Canada. :)

That nobody seems to know whether there are in fact any patents licensed by the patent grant within React is one of the most frustrating things about it.

Agreed. It gives the entire debate a very metaphysical quality. How can I determine the value of a patent grant when I don't know what the patents are, or if they even exist?

A quick search on WIPO:

https://patentscope.wipo.int/search/en/detail.jsf?docId=US90... https://patentscope.wipo.int/search/en/detail.jsf?docId=US19...

Query:

    PA:facebook* AND FP:(Hierarchical user interface) AND CTR:US

I'd call that a "distinction without a difference". Those are generally fallacious, and more often pedantic. Sure, you can still technically use React if, say, you're based somewhere that patents aren't particularly enforced. But if that's the case, why do you have patents in the first place?

In many European countries (all of the EU ?), software patents are not recognized.

You may still have other kinds of patents, which are very much enforceable.

That is plain wrong. Software patents exist and are enforced in the EU and other member states of the European Patent Treaty. The European Patent Office even has a nice FAQ on helping you get your software patents granted at:

https://www.epo.org/law-practice/legal-texts/html/guidelines...

The situation is a bit more subtle than you make out. The EPT has clear language which excludes software from patentability, but that hasn't stopped lawyers from arguing that some software can be patented if it has a physical effect (even a minimal one). Wikipedia actually summarises it decently: https://en.wikipedia.org/wiki/Software_patents_under_the_Eur...

The situation isn't even that subtle. The "physical effect" AKA the German Teaching has eroded into a "further technical effect" in the past decade. And with the UPC looming, things could get even worse. But that's getting off topic.

I must have missed the part where the patent clause in the React license applied only to software patents.

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