With Apollo on the way, I’m thinking more and more about the risk of the Facebook patent clause. I’ve read it’s a “restrictive license” and that some companies flat allow deny the usage of Facebook fools. I’ve also read that companies seeking to get acquired by Google/Microsoft avoid the tools.
Now - there is some discussion on this subject online with lots of assurances, but it’s coming from bro-lawyers. Can someone with a legal background clarify what offensive and defensive capabilities it provides to the parties involved?
I’m a patent attorney turned developer. Attorneys are scared to answer these hypotheticals because our textbooks are full of malpractice suits for off the cuff answers.
I may be in that camp. But we need to get more specific before I run for the hills.
Are you specifically worried about the graphql IP used in Apollo not being protectable?
Well, if there is something to feel “responsible” for then there could be an issue. Since MDG is planning to sell to enterprise markets, I wonder what their take on the situation is.
Nothing in specific - I am just curious what situation it creates between Facebook and the company using their tools.
I’m reading some things about it being a “restrictive license” with a “patent rider” which may put a company using their tools in a vulnerable position should Facebook chose to do so. So I’m just trying to figure that out.
LinkedIn used react and Microsoft didn’t seem too concerned as they handed over 26B
I’m not an attorney, and this isn’t legal advice, but I think it would be very difficult for Facebook to actually litigate somebody.
For one, having a patent and having a good patent are two very different things.
Additionally, software patents are probably the easiest type of patent to get (patent office isn’t specialized enough to deny most software applications) and software patents are probably the hardest to protect…
this is why you normally see cases against physical stuff like touch screen functionality, solar cells, and devices… and not Facebook vs. Google in the court room arguing about their patent on how to call a function parameter or their next-level hover affect on the login button… it is a hard case to make and the case law is against you.
arguably the only thing truly novel about react is maybe the shadow DOM and the diff algorithm? And in many cases that isn’t gong to be very easy to defend.
This is an outdated thread but has some good info if you are interested:
Note, I think things have gotten even worse for software patents since then (read: harder to defend)
If Facebook isn’t making trouble for LinkedIn and Microsoft— when Facebook could arguably want to get into LinkedIn’s market of a businessy social network, than it is highly unlikely they are going to bother somebody else. I would say don’t worry about this.
The only thing I would consider if maybe putting a clause in your contracts (if you are a contractor building software for other people) that says you use react and take no responsibility for the repercussions.
ALL OF THAT SAID
It would be nice if Facebook clarified why they decided against an MIT license.
+1 on the point of mentioning license in freelance contracts. I wonder if using React can actually lead you to breaching a contract since you guarantee you generally guarantee unconditional ownership
I suppose Facebook’s blog post on the subject can also be used for the precedents… still… the question remains unanswered
It’s hard to answer a legal question that’s “given licenses, patent law, and the world in general, what’s the liability for anything I do with X?”
Let me speak generally.
Most people don’t know that patents grant a right to exclude. For instance, say that Company X patented a pencil. And then Company Y patents the eraser for a pencil. Company X’s patent excludes Company Y from making a pencil, never mind with the eraser. But Company Y’s patent stops Company X from making a pencil with an eraser.
Company Y’s patent is known as a “blocking patent.” Company Y cannot make their claimed invention because of company X’s patent, but they block company X from the improvement.
The Internet is in an uninformed uproar over Facebook’s patent retaliation clause. Generally, there are two types of retaliation clauses – strong and weak. Weak clauses say if a licensee asserts a patent claim against the licensor, your original license terminates. That’s what Facebook uses.
Put it in terms of the pencil. Company X licenses a pencil as an open source technology. Company Y patents an eraser. Company X then makes a pencil with an eraser. Company Y sues X. Company Y loses their license to the underlying pencil.
Essentially, these soft retaliation clauses prevent others from making blocking patents. Facebook doesn’t want you using their software, improving it, protecting it with a patent, and then asserting a patent claim with their IP as the underlying technology.
Most people are familiar with copyright law where the copyright holder retains derivative rights to the underlying work. (I can’t make a movie called “The Secret Life of Pets 2”) But with patents, I simply need to claim an extra element to someone else’s work to get a valid and enforceable patent.
It’s really a limited defense. Remember, all that happens is you lose the license when you sue. That’s bad if you’ve developed your technology stack on weak patent retaliatory licensed software.
But that doesn’t invalidate your patent. It doesn’t stop the lawsuit. Odds are good that a successful patent suit against Facebook is worth more than your code. And if you’re smart, you’ll spin the patent off to a holding company (now Patent Trolls don’t look so bad eh?).
There isn’t much dark side in this. The dark side is in the strong patent retaliation clauses (see Apple). Strong patent retaliation means that you lose your license to all software from the parent for any patent lawsuit. You can see the danger and why companies like Google complained about Facebook’s original license. If Facebook used a strong retaliation clause, then they can, essentially, infringe all of Google’s patents with diminished fear of a lawsuit.
Let me ask you this. Are you trying to get lots of eyes on your project?
I can tell you how it feels to get a cease and desist order perkins coie (one of facebook legal IP counsel, I am sure they have others however). My CnD was not from facebook it was from another major brand, however they use perkins coie also.
Feels really bad. Spending 6 figures out of my own pocket developing that IP feels real bad. Staff downsizing, bad.
Did I have a case to make? Yes. Did that matter? No. Fighting a mega firm and brand is not something any team can afford. Just remember it all starts with the CnD. I would hate for anyone else to feel like I felt.
TunnelBear is a good, free(ish) VPN with no logging.