Making sense out of the confusion… After weeks of uncertainty and criticism from and major Open Source players (including and ), Facebook (‘FB’) they will be re-licensing their JavaScript library (and other projects) under the popular . developers Apache WordPress announced React MIT open source license Many developers are breathing a collective sigh of relief. However, . discussions surrounding Facebook’s “BSD+ Patents” license revealed several common misconceptions in the developer community regarding open source licenses and patents While debate regarding the “BSD+ Patents” license may now be academic, (whether using or any open source project): here are a several takeaways developers should keep in mind going forward React : I am a Patent Attorney, I do not represent Facebook, this is just food for thought (not legal advice) (did I forget anything?). Disclaimer 1. The difference between copyrights and patents Software can be associated with two primary types of intellectual property: and . copyright patent If I write some new code, I own the . That means I (legally) control who can/can’t use my . By releasing it via open source (‘OSS’) license, I give others the right to reuse my . In legal terms, I grant others a ‘copyright license’ (a promise not to sue when my is infringed by your use of my ). copyright code code copyright code Unlike copyright, protect new features/functionality. If I develop a new and “non-obvious” feature and receive a patent on it, I can stop others from making, using, or selling products with the same for the ‘life’ of the patent (20 years). patents functionality Consider a scenario where you code an existing function from scratch. Since you haven’t used anyone else’s , you wouldn’t infringe anyone’s . But, if I have a on that function, you can still infringe my patent since your product incorporates my patented ( ). code copyright patent functionality even though your code is 100% original and does not infringe any copyright OSS licenses are attached to source code and are largely effective at addressing issues. However, . copyright since rights can extend beyond the actual code being released, treatment of patent rights by OSS licenses is more complex patent Some OSS licenses, such as and have specific clauses to address patent rights and provide explicit patent licenses. Other OSS licenses — including — don’t mention patents or patent licenses at all. Apache 2.0 GPLv3 MIT 2. The MIT license doesn’t mention patents The brief text of the MIT license doesn’t mention patents anywhere. However, the license does say that the author of the code grants you: “…permission…to deal in the Software without restriction…” Many interpret this to grant a patent license. After all, In this context, . implicitly the author of the code is giving you permission to use the code “without restriction.” it’s reasonable to assume the author won’t use his/her patents against you to stop you from using the code Ultimately, though, this is conjecture. To my knowledge, this issue has never been litigated so no court has identified such an implied license. conclusively 3. MIT’s ‘implied patent license’ may be limited Let’s assume the MIT license does include an ‘implied patent license.’ In the case of React, does this implied license apply to all of FB’s patents? Or only some of them? How far does the license go? Since the MIT license is attached to the “Software” (here, React), I’d also expect any ‘implied patent license’ to be limited to patents on ‘the software.’ So: Patents covering would likely be covered by the implied patent license. functionality provided by the React library itself Patents on functionality provided by React itself would likely be covered by the implied license. not not , let’s assume: To illustrate (a) You use React (under MIT license) to develop a new VR social networking application, and (b) FB has patents on (1) React functionality and (2) social networking, VR, etc. In this scenario, you’re using React so the ‘implied license’ would reasonably protect you from FB’s patents on . However, FB’s patents on (social networking, VR, etc.) would likely be included in such a license. React functionality non-React functionality not This doesn’t necessarily mean FB ever try to enforce these (non-React) patents against you. But it does mean they . would could 4. Understanding ‘defensive’ patents Many companies (big and small) maintain patent portfolios for ‘defensive’ purposes. While a patent owner sue any infringer, patent litigation is expensive. For many companies, the costs of aggressively policing their patents can outweigh the benefits (removing infringers from the market). can However, . These patents can be the basis of a ‘countersuit’. While “two wrongs don’t make a right,” this ‘defensive’ response can be leveraged to settle the original litigation or (ideally) to discourage the lawsuit to begin with. In other words, . if a patent owner such as FB is accused of infringing another party’s patent, FB’s can ‘mine’ its own (large) patent portfolio to identify patent(s) the accuser may infringe many companies hold patents not to sue you but to discourage from suing you them This dynamic should be considered carefully by companies of all sizes. Irrespective of your thoughts re: software patents, . And, when considering whether and how to initiate patent infringement claims, carefully assess your opponent’s patent portfolio before taking action. being in a weak position (patent-wise) can leave you vulnerable to attack by competitors with larger portfolios If you enjoyed this article, please recommend it on Medium (clap for it!), and share it on Twitter, LinkedIn, etc. Feel free to follow me on Twitter and connect with me on LinkedIn .

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