Hi Ben,
Thanks for reading, your kind words, and questions. Let me see what I can add.
- I’m not sure what you mean. There’s no requirement to disclose patents to ensure or enhance patent protection. You may be referring to willful infringement. Willful infringement can be considered when assessing damages to increase lost profits / reasonable royalites up to three times. I haven’t looked at the case law in a long time on willful infringement, but as I recall, it typically requires sophisticated party A to know about party B’s patent and infringe anyway. It’s a high bar.
- You’re right.. I’ve spent a lot of time trying to dissect the rationale, however flawed. Here’s what I suspect is happening…
Facebook open sources software as an abstraction exercise. That is, we have this tool that’s coupled to our services. Decouple it through the exercise of open sourcing it and perhaps we’ll get some residual benefits.
Facebook takes this to their in house team. I suspect they don’t want to outsource it to one of their ~50 hired firms because this is basic — it’s just licensing. But their in house team isn’t versed in open source, they’re versed in “closed source” licensing. In typical patent licensing, patent revocation clauses are as common as the date.
Therefore, I suspect the confluence of not actually caring about open source and business as usual gave rise to their licensing strategy. I doubt there’s some master strategy at work behind the scenes. If they really wanted to put the screws to lawsuits, they would have revoked the software/copyright license too. But that would require writing a new license. Sounds like work. Thus, this licensing smells work smells of a “meh” legal team.
(Again, that was all complete speculation. I could be dead wrong)
I’d like to emphasize, though, the moral argument here that I think too many dismiss. Facebook’s position is, simply, “you can use our stuff AND sue us.” Is that so crazy? I agree with it.
