If it's licensed MIT, the Engineers just say "it's MIT license like half of the libraries we already use" and it's a legal non-issue.
If the license is not one of the standard ones already in use, and it mentions patents, suddenly legal gets involved and it's a disaster. They're very risk-adverse and no one's really sure what will happen when it gets to court. It doesn't have to make sense - after all, most software patents don't make sense, and most software patent lawsuits don't make sense.
Copyright makes some sense - some entity wrote the code and has (or has not) given explicit permission for others to use it, and under common open-source licenses those terms are reasonably well understood. But patents can come out of left-field and be unrelated to the user or the producer of the code. Being aware of patents (which should not cover what you're doing or should not exist) makes punitive damages worse. Again, best to just put your head in the sand and hope the patents don't notice you. Any language about patents adds complications which no one wants to figure out.
This is the first time I've seen "put your head in the sand" as an actual recommendation, instead of being characterized as something not to do. And as far as recommendations go, it's more than a little bit nutty.
Not at all. Willful infringement is grounds for triple damages. So "never, ever, ever look at patents unless an attorney asks you to" was the company policy at Microsoft and Apple when I was there, and at several other major tech companies whose policies I happen to have heard of. If you were to mention to a company attorney that you've looked at another entity's patent, there would be a loud screeching noise from the attorney and you'd be scheduled for an immediate refresher course on patent policy.
It's actually a common policy when it comes to patents. If you are found to infringe on a patent and it can be shown that you knew about it, the penalties are much harsher. This is one of the many reasons people consider the patent system to be badly broken.
There is not. If you know the patent exists, you get higher (I think triple?) damages. If you don't, you don't. And you have no obligation to check.
Example: There is a patent in the US on ordering food from a menu online. It's held by a NPE (aka, a patent troll), and they charge a fairly high license fee. Some people who offer online ordering to restaurants pay the license fee; others don't. If you don't pay, then you can afford to charge lower prices than your competitors. If you do pay, then it's in your interests to tell everyone you meet about the patent, because every person you tell is someone who now faces triple damages if they opt to use on your your non-paying competitors.
Let me say that again, because it's so crazy: Some companies actually advertise their high prices, because a potential customer just reading their pricing page can thereafter no longer opt for a lower priced competitor without being subject to increased damages.
Neither novelity nor lack of prior art are requirements for getting a patent, it seems. If a patent has prior art, or is incredibly obvious, that might help your case in court if you're getting sued, but if you're an individual or small company getting sued for patent infringement by a company with an army of lawyers, you've already lost.
AFAIK, no. I don't know of any case law that says the reason you were unaware of the patent is relevant; just whether the infringement was "willful" — one component of which being knowledge of the patent.
And at small to medium-sized businesses, they don't have in-house IP attorneys and their in-house counsels (or outside lawyers on retainer) will likely punt such questions to an outside firm or IP specialist. And that will come with an unattractive price.
So, in other words, what you're effectively saying is that everyone's reaction to this is irrational, but understandable. People understand the MIT license (or even just the regular BSD license), but as soon as something brings patents into the mix, even if the clause actually gives you more rights and legal cover, people get scared and don't want to deal with it?
That's... sad.
> Being aware of patents ... makes punitive damages worse.
Sure, but that doesn't have anything to do with a BSD+Patents license. The license doesn't say "you also must do extensive patent research when using our software". You have to actually be aware of the patents that you're infringing to be held liable for extra damages.
An argument I've read is that MIT and BSD are widely understood to give an implicit patent grant, and Facebook's explicit grant overrides the implicit one, and Facebook's is more restrictive than the implicit one because you lose that patent grant if you ever try to sue Facebook.
If the license is not one of the standard ones already in use, and it mentions patents, suddenly legal gets involved and it's a disaster. They're very risk-adverse and no one's really sure what will happen when it gets to court. It doesn't have to make sense - after all, most software patents don't make sense, and most software patent lawsuits don't make sense.
Copyright makes some sense - some entity wrote the code and has (or has not) given explicit permission for others to use it, and under common open-source licenses those terms are reasonably well understood. But patents can come out of left-field and be unrelated to the user or the producer of the code. Being aware of patents (which should not cover what you're doing or should not exist) makes punitive damages worse. Again, best to just put your head in the sand and hope the patents don't notice you. Any language about patents adds complications which no one wants to figure out.