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Comment by gnicholas | Hacker News Reader

> If I'm using React and I decide to sue Facebook for infringing some other software patents I hold, I lose the patent grant for any potential patents Facebook might hold concerning React. Which they could go after me with if they do indeed hold such patents. There's nothing proactively forcing me off React.

It seems like you're assuming that there's a decent chance that FB doesn't actually hold any patents on React. This seems unlikely, and is contradicted by what the author wrote (indicating that popular React alternatives may also infringe FB patents). Or am I not understanding your line of thinking?

My view, as a former lawyer, is that if you want to sue FB for patent infringement, you would be very unwise to continue using React. Willful infringement = treble damages.

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> It seems like you're assuming that there's a decent chance that FB doesn't actually hold any patents on React.

That's very likely actually. Patents are public; people have searched around for obvious concepts and phrases involving the virtual dom, synthetic events, etc., and nothing has been found. (There's also nothing novel in what React does, so you'd kind of hope there'd be no patents.)

> This seems unlikely

Why do you think Facebook having patents on React is likely? (Come to that, why is it any more likely than them having patents on the tech behind, say, Angular?)

> and is contradicted by what the author wrote (indicating that popular React alternatives may also infringe FB patents)

IF a patent on, say, the virtual DOM exists, then Preact, Vue, etc., will all violate it. But it seems fairly clear that no such patent exists. So the author is quite right; popular React alternatives almost certainly use just as many of Facebook's patents as React does...it's just the number is probably "zero".

> people have searched around for obvious concepts and phrases involving the virtual dom, synthetic events, etc., and nothing has been found.

Someone shared this one with me recently: https://www.google.com/patents/US20170221242

That said, if you're using React, I don't think you should be suing Facebook for using your patents - after all, you're using theirs. If you do want to do that, then by all means, skip React.

> That said, if you're using React, I don't think you should be suing Facebook for using your patents - after all, you're using theirs. If you do want to do that, then by all means, skip React.

So if they infringe on your patents you shouldn't sue them because they let you use some of their code? Note that this covers any patent (design patents too and not just software patents) and for any reason you sue them. That's not how this is supposed to work, and precisely what's wrong with the license. The grant shouldn't be revoked if Facebook is infringing on your works. It encourages you to not litigate against them if they're in the wrong simply because you're using one of their open source components.

The Apache 2 license is much better worded in this area:

> If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed.

That Apache 2 approach is entirely fair, the grant gets terimnated if you sue for patent infringement, and only that. If that's all that Facebook wanted to protect against, as the author alledges, they could've used the Apache 2 license just fine. They didn't because they're trying to leverage their patents much further.

> So if they infringe on your patents you shouldn't sue them because they let you use some of their code?

No, if it's really just "some code" to you, then you should simply not use it if you're really afraid that Facebook is infringing on your patents and that you will gain harm from that. However, if:

- you're profiting a lot from either React, or other Facebook patents

- you're not afraid that Facebook is infringing on your patents, or

- Facebook infringing on your patents doesn't really harm you, just like you using Facebook's React patents doesn't really harm Facebook

...then you can just use React. And I believe one of the above holds for almost every React user.

And I'm afraid I don't really care how patents are "supposed" to work - we've known for a long time already they don't work like they're supposed to....

Software patents are broken, but other patents are still doing some amount of good. Facebook is leveraging software patents to get a potential advantage in all patent cases.

> - Facebook infringing on your patents doesn't really harm you, just like you using Facebook's React patents doesn't really harm Facebook

Eh, what? There's a very big difference between someone infringing on a patent, which does harm no matter if you care to enforce it or not (because it sends a signal to others that it's fine to infringe on your patents, if you don't care about them make them public domain instead), and an open source project including a patent grant so you don't have to worry about any patents that might govern that code. The two situations are not identical and can't just be compared like that.

> And I'm afraid I don't really care how patents are "supposed" to work - we've known for a long time already they don't work like they're supposed to....

Ah yes of course! The system is broken anyways so lets just not give a fuck about it being further abused. Just do as you please. Sound argument.

We (the Flapjax team) open sourced a vdom for reactive web programming / FRP in 2005-2006, including formal publications in 2007-2009, so precedent will be interesting. We're doing next-next-gen of that stuff at Graphistry (Rx, Falcor, GoAI, ...), so fun times if lawyers come in.

Fun? Hope you guys have a $500,000 or so stashed aside for this fun party. That's likely what you need to prevail even when the facts are on your side.

The EFF could get involved if it made sense

My statement is that React builds on > 10 years of ideas from open web frp frameworks and > 20 years of reactive frameworks in general. Companies wanting to bust patents here would certainly get support from early creators like us. Certain ones like Google have been know to do that sort of thing, and I wouldn't hesitate to help them if they identified anything.

http://www.flapjax-lang.org/ ?

what about this one? It was literally just published: "Automatic overdraw reduction before rendering"

https://www.google.com/patents/US20170221242?dq=facebook+use...

That's an ugly React-related patent application for sure.

I hope this application doesn't go anywhere, as there would seem to be a lot of prior art. For example, the Cocoa API in macOS implements the method of Claim 1 pretty much to the letter:

https://developer.apple.com/documentation/appkit/nsview/1483...

This API was introduced in OS X 10.3, so that would be 14 years ago.

React doesn't do layout so it can't do occlusion.

The patent description explicitly states it's about React:

"Although many embodiments are described herein in the context of React, embodiments are not limited to React or to rendering only updated views as determined by React libraries."

I know that patent claims are typically much more specific than what the abstract suggests, and I only gave the claims a cursory read, but... surely there is prior art for this? I mean, I'm sure many non-web GUI systems avoid overdraw and at the very least, game rendering engines do, right? At least, I was under the illusion that overdraw was a big deal that at least shader-heavy renderers or old-school 80's/90's tile based renderers?

https://www.google.com/patents/US20170221242 - It event mentions React. So maybe we should stop using the word "potentially" when it comes to React patents.

> if you want to sue FB for patent infringement, you would be very unwise to continue using React.

If you want to sue any company for patent infringement, you would be very unwise to continue using their software under most common licenses. The most-touted alternatives to React are plain MIT license with no patent grant at all, creating exactly the same risk. Why does the license that prevents you from being sued first get all the condemnation?

> The most-touted alternatives to React are plain MIT license with no patent grant at all

IANAL, but as far as I understand, MIT license contains implicit patent grant.

If these projects are covered by Facebook patents, it doesn't matter if their license has a patent grant since they don't own rights to the Facebook patents.

Exactly! I have yet to see a solid walkthrough of how my situation is made worse because of an explicit patent grant.

I believe the fear of a grant revocation also revoking the BSD copyright license has been thoroughly settled. If that were the case that would be an issue but FB themselves have put in writing that that is not the case.

That's never been tested in court, and requires some rather large leaps of thought.

IANAL. There's case law in copyright law concerning implicit grants. We can assume that it's at least partially applicable to patents (See here: https://en.wikipedia.org/wiki/Implied_license).

IANAL, but this commenter, whose profile claims he is a lawyer, says BSD carries an implicit grant which is broader in theory than Facebook's explicit one, but still has some untested characteristics: https://news.ycombinator.com/item?id=9113515

It's not just some characteristics that are unsettled. The same people braying about the legal risks of relying on an explicit but revocable patent license should be even more wary of anything implicit or assumed. Any lawyer pretending otherwise in a professional context would be flirting with malpractice.

> My view, as a former lawyer, is that if you want to sue FB for patent infringement, you would be very unwise to continue using React. Willful infringement = treble damages.

It isn't just React. The PATENTS file is in most of their repos.

It seems like it will basically allow Facebook to infringe on patents from many companies once their software has crept into the dependencies of critical parts of the open source ecosystem. (I'm not sure if it would be accurate to call React Free software.)

I'm not assuming they don't have any patents on React but I also have zero intention of wielding software patents so it's not something I'm concerned with.

You're correct though that if one does have aims to sue Facebook they should cease using Facebook led projects.

My main point is that the patent grant is nothing but gravy. Without it you have a plain Jane BSD license. Certainly not a worse situation.

Correct me if I'm wrong, but this risk has nothing to do with the BSD+patent grant. If Facebook held patents on some React mechanisms, and they published React with pure BSD license, they could sue you at will if you use React.

Basically, the grant guarantees that you can't be sued if you don't sue first. No grant means that you can be used in any case.

Not just that, but if Facebook patents covered any similar framework (eg Vue.js) they could still sue you if you use that other framework.

> Correct me if I'm wrong, but this risk has nothing to do with the BSD+patent grant. If Facebook held patents on some React mechanisms, and they published React with pure BSD license, they could sue you at will if you use React.

I have head a theory that the BSD licence has an implicit patent grant. If FB sued you for using a plain BSD licence, you could argue the BSD covers it, if the courts agreed, you'd be fine.

One objection to the BSD+Patents licence is that it sorta removed the ambiguity, and explicilty implies the BSD has no patent aspects.

> have head a theory that the BSD licence has an implicit patent grant

Even the experts admit that it's untested, and every law student knows that anything up to an actual test in an actual court is little better than a guess. Also, beware of "experts" who aren't even talking about copyright law. For example, consider the three cases mentioned in the "US" section here.

http://en.swpat.org/wiki/Implicit_patent_licence

The Hewlett Packard quote is clearly about products, which I know for sure are not legally the same as licenses. The Bottom Line quote's mention of purchases casts a similar shadow. Only the De Forest quote passes even a rudimentary sniff test. The case for this implicit license is weak indeed.

But fine, let's say there is such an implicit license. I have good news for you: it would apply to the Facebook code as well. The same principle used to argue for the existence of an implicit patent-license grant under plain BSD - i.e. that trying to bring a patent action would interfere with the still-operative copyright permission given in the LICENSE file - would still apply. Nothing in the PATENTS file would change that.

Belt and suspenders still beats belt alone, no matter how strong or weak the "implicit license" belt might be.

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