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"The BSD license says nothing about patents, so this project is in some sense safer than a "normal" BSD-licensed project (but not an Apache, EPL or GPLv3-licensed project). "

As I've mentioned in another common, this is both false and a common misunderstanding, because most engineers are not familiar with implied patent licenses.

BSD normally carries one. So you do in fact, get a implied grant. By doing this you don't, you only get the explicit grant. The implied grant is normally not revokable unless the underlying BSD terms are violated, whereas the explicit grant is revokable for other reasons.

The reason people use explicit patent grants is to avoid getting into some unsettled law. Particularly, the sublicensability of implied patent licenses is not clear. The TL;DR of this is "the answer is clear if you get the software directly from person owning the patents. If you get it through someone else, like say, a linux distribution, it's not clear what happens". The related doctrine of "patent exhaustion" that plays into this is also not settled, and currently the subject of a Supreme Court cert petition by Cisco.

FYI my favorite patent ever is from Facebook:

"A social networking system user may associate an emoji representing the user's emotional reaction with a content item presented by the social networking system. The user is presented with one or more emoji maintained by the social networking system and selects an emoji for associating with the content item."

[1] http://www.google.com.ar/patents/US8918339

That's right folks, they patented using the emoji to respond to content.

Actually, if you RTFClaims (which is the first thing you should read), they patented asking for payment for using emoji to respond to content. Which is ridiculous from a business perspective as well.

What is ridiculous about it? LINE is earning millions of dollars from exactly that.

On the other hand, I think the patent is invalid because LINE predates this like a year or so.

Food for thought. For reasons that SixSigma brought up in another comment, both you and your employer have just lost your rights to the patent grant that would let you safely use Facebook's open source contributions.

That's pretty bad.

I think the word 'claim' is used a little ambiguously, but given how it is used in the rest of the patent declaration, I don't think the intent of Facebook is to stop you from saying anything about infringement, rather it is to stop you from filing a claim in court or with the patent office.

Don't worry about intent, worry about what they actually say. They have smart lawyers, and wouldn't say it if they didn't mean it.

They say you lose the license if you make a claim "...that any right in any patent claim of Facebook is invalid or unenforceable." They also helpfully indicate what a claim means, and making an assertion counts.

Now why would they do this? My guess is that they wanted to have a legal tool that they could use to provide a chilling effect on any third parties who might volunteer information that is useful to someone filing a lawsuit against them. Which, if you are a lawyer, might seem like a good response to the demonstrated ability of groups like groklaw to crowdsource legal research. And if they were in such a lawsuit, that comment is exactly what Facebook would not want to see.

But there is no need to speculate. Their patent grant is quite clear, and the comment I pointed at is in violation.

Wow, I did not imagine people would pay for emoji. I stand corrected.

As I understand it, you're better off not looking for relevant patents so that you can claim accidental infringement rather than wilful infringement

Only if your company would survive half-damages and not survive full-damages, or probably a more complex weighted calculation. Doesn't seem too likely, especially if looking can help you do trivial workarounds to avoid infringing at all.

It would be nice to find and share if React infringes any of the patents.

"You could develop a library in-house in a clean room and it could still infringe someone else's patent."

IANAL, but, it is my understanding that if that's the case the patent wouldn't hold up to the novel requirement.

It all depends on how the court sees it.

See "Carmack's Reverse" - where John Carmack independently developed an acceleration for robust stencil shadows, documented his discovery and then had to capitulate to Creative Labs who owned a patent on the algorithm from a few months earlier.

Novelty at the time, perhaps? You might be thinking of "non-obvious" but just because two people invented something doesn't make it obvious. More importantly, though, once the patent is granted it doesn't matter, you're in violation. That it shouldn't have been granted in the first place is a separate issue, and one that almost nobody is going to spend the time and money on to sue for a change.

Patents are granted on who files for the patent first. The invention protected must be non-obvious to the notional skilled practitioner in the relevant arts and should never have been disclosed in public before (novelty).

You're thinking of reverse engineering.

>Anyone could have them, they don't have to declare them, and they're written in deliberately obtuse ways so that you have no way of finding relevant patents before you're sued for infringing them (you don't have to have copied, or even be aware of, any patented thing to violate a patent).

Not "anyone" could have them only people who have their details registered as patentees at the relevant patent office, eg USPTO or WIPO.

Patent claims are written in a legal way as they define the monopoly the patent protects, it's necessary not to use normal language as they must at once be legally precise and also define as broad a field to serve the patentee. Claims are drafted by, or for, the patentee.

The patent description must, in order to comply with the relevant laws, disclose the invention in a way that makes it possible for a skilled worker in the art to repeat the invention. If it does not the application should fail. Patent description must include at least one concrete implementation of the invention but the invention itself can cover many different implementations. The description needs to support the breadth of the claims.

Yes, practically - especially in the USA in the past - so-called submarine patents could surface out of the depths. If you're working in an area of technology you should be using patents both to advance your knowledge of the market and to ensure you're not in breech of other's IPR.

Your parenthetical remarks are entirely correct however.

Patent infringement isn't just a hazard of the software industry it's a part of how all technological industries work in countries that use patents (nearly all countries [may be all established ones?]).