[My apologies to the ReactOS project, which I named in the first version of this article. The software in question is React.js]
Recently the Apache project banned React.js, a Facebook project, from inclusion in Apache projects. The ban is over a patent license which Facebook issued for React.js. This license should be of concern to companies that could now be using React.js, perhaps without even knowing it.
The current text of the Facebook patent grant is at https://github.com/facebook
Without this grant in explicit text, there would still be a patent grant which is implicit in the BSD license. This arises from an equitable doctrine in law, you can’t grant a license and then “trick” the recipient by suing them for doing exactly what you gave them permission to do.
The problem is that Facebook has replaced the implicit grant with an explicit one with a “strong” retaliation clause. If a company uses React.js, they essentially give Facebook a license to their ENTIRE patent portfolio, no matter how large. Actually, they agree to forego to sue for infringement, but it’s essentially the same thing. Most companies would find this unacceptable. This is called a “strong retaliation clause”.
Facebook has gone to a version 2 of their patent grant text, but there is still the same problem with the breadth of the patent grant. Version 1 implicitly banned counter-suit after Facebook sued you, Verison 2 explicitly permits counter-suit.
What we usually do in the Open Source world, and what we find acceptable in Open Source licenses, is to limit the termination to lawsuits regarding patents exercised in that specific Open Source software. So, if Facebook were to state that if you sue anyone regarding your patent grants that are exercised in the React.js software, your license terminates, that would be OK. Indeed, Apache uses similar text in their own licenses. This is called a “weak retaliation clause.”
Of course, we in the Open Source world would rather that software patents went away entirely. I am joined in this sentiment by many of my industrial customers who have been the target of non-practicing-entities and other software patent abuses.