3 ms·

What would their case be? "Yes, we gave away the software and documented it and paid designers to design it all pretty and spent marketing effort promoting it b

What would their case be? "Yes, we gave away the software and documented it and paid designers to design it all pretty and spent marketing effort promoting it but nobody is allowed to use it because it's patented technology"? Has any court ever ruled that a permissive license like BSD does not include a patent grant when it says "use in source and binary forms, with or without modification, are permitted"? Because that seems flat-out silly.

abritinthebay 9y ago
You're asking the wrong question. There is almost no case law that supports implicit patent grants and what little there is requires the patents be ones... "that dominate the product or any uses of the product to which the parties might reasonably contemplate the product will be put" -- HP vs O-Type Stencil (1997) So, again, very limited. Very dangerous. Very very open to being sued and crushed economically. This is exactly why FB's patent grant provides you more rights that you get without it. There is no ambiguity, no fussing over what patents may or may not apply and be covered by the case law. It's explicit and better for you. Long story short: in many ways it's less safe to rely on implicit grants.
- kbutler 9y ago
  But isn't it the case that any patents that would affect the use of react/prepack would "dominate the product or any uses of the product..."? Yes, the grant is better than nothing, but also, the risk if the grant is removed seems minimal.
  - abritinthebay 9y ago
    Any patents? Not at all. It's of course possible that they have (or will have) some that would be covered by an implicit grant - though you'd need to go to court to confirm that. But it's quite possible that they could have many patents that cover non-substancial parts. Guess what? You're now in violation of those if you haven't already licensed them. So, again, even in the best case the implicit grant still requires you to go to court to maybe get clear of some liability. Explicit ones have you covered from the start. More rights for you, broader coverage for you.
    - kbutler 9y ago
      It seems very unlikely to find a way to use these products in an unintended way that would violate some tangentially related patent, but a) it's all hypothetical and b) one should never underestimate the ability and willingness of IP lawyers to allege an infringement. "You have stored the software on electronic media and used that media as a doorstop, violating our access control patents by keeping the door open." Hmm. Has that been filed yet?
derefr 9y ago
Patents doesn't mean "nobody is allowed to use it"; patents mean "you are required to license the patent from the patent-holder, which usually requires paying royalties." I could totally see the point of a FOSS software project that implements a patented algorithm, where people work together to improve the thing but everyone who uses it still has to get a license from the patent-holder. (For a recently-top-of-mind example, Fraunhofer's MP3 decoding patent.) Thus, it's not obvious that a FOSS license automatically implies patent release. Fraunhofer could have open-sourced some reference MP3 encoder themselves, without releasing the MP3 patents.
- djur 9y ago
  I think the situation you mention has a significant distinction: Fraunhofer (or whoever) would presumably advertise that they expect you to get a patent license to use the code in a product. Either they'd explicitly state that up front, or their lawyers would say it with the first politely worded letter to someone who starts using the "open source" code. Software distributed under those terms would no longer adhere to OSI's definition of open source (I think it violates points 1, 3, and 6) nor the FSF's Free Software Definition (points 2 and 3). It might not stand up in court, but I do think it's obviously unethical to release patent-encumbered "FOSS" without mentioning your patents and then demand users obtain a license after the fact.
  - andreyf 9y ago
    > It might not stand up in court, but I do think it's obviously unethical to release patent-encumbered "FOSS" without mentioning your patents and then demand users obtain a license after the fact. I would be amazed if something like this does not stand up in court. Read the BSD license — it's really relatively simple english.

abritinthebay 9y ago

You're asking the wrong question. There is almost no case law that supports implicit patent grants and what little there is requires the patents be ones... "that dominate the product or any uses of the product to which the parties might reasonably contemplate the product will be put" -- HP vs O-Type Stencil (1997) So, again, very limited. Very dangerous. Very very open to being sued and crushed economically. This is exactly why FB's patent grant provides you more rights that you get without it. There is no ambiguity, no fussing over what patents may or may not apply and be covered by the case law. It's explicit and better for you. Long story short: in many ways it's less safe to rely on implicit grants.

kbutler 9y ago
But isn't it the case that any patents that would affect the use of react/prepack would "dominate the product or any uses of the product..."? Yes, the grant is better than nothing, but also, the risk if the grant is removed seems minimal.
- abritinthebay 9y ago
  Any patents? Not at all. It's of course possible that they have (or will have) some that would be covered by an implicit grant - though you'd need to go to court to confirm that. But it's quite possible that they could have many patents that cover non-substancial parts. Guess what? You're now in violation of those if you haven't already licensed them. So, again, even in the best case the implicit grant still requires you to go to court to maybe get clear of some liability. Explicit ones have you covered from the start. More rights for you, broader coverage for you.
  - kbutler 9y ago
    It seems very unlikely to find a way to use these products in an unintended way that would violate some tangentially related patent, but a) it's all hypothetical and b) one should never underestimate the ability and willingness of IP lawyers to allege an infringement. "You have stored the software on electronic media and used that media as a doorstop, violating our access control patents by keeping the door open." Hmm. Has that been filed yet?

derefr 9y ago

Patents doesn't mean "nobody is allowed to use it"; patents mean "you are required to license the patent from the patent-holder, which usually requires paying royalties." I could totally see the point of a FOSS software project that implements a patented algorithm, where people work together to improve the thing but everyone who uses it still has to get a license from the patent-holder. (For a recently-top-of-mind example, Fraunhofer's MP3 decoding patent.) Thus, it's not obvious that a FOSS license automatically implies patent release. Fraunhofer could have open-sourced some reference MP3 encoder themselves, without releasing the MP3 patents.

djur 9y ago
I think the situation you mention has a significant distinction: Fraunhofer (or whoever) would presumably advertise that they expect you to get a patent license to use the code in a product. Either they'd explicitly state that up front, or their lawyers would say it with the first politely worded letter to someone who starts using the "open source" code. Software distributed under those terms would no longer adhere to OSI's definition of open source (I think it violates points 1, 3, and 6) nor the FSF's Free Software Definition (points 2 and 3). It might not stand up in court, but I do think it's obviously unethical to release patent-encumbered "FOSS" without mentioning your patents and then demand users obtain a license after the fact.
- andreyf 9y ago
  > It might not stand up in court, but I do think it's obviously unethical to release patent-encumbered "FOSS" without mentioning your patents and then demand users obtain a license after the fact. I would be amazed if something like this does not stand up in court. Read the BSD license — it's really relatively simple english.