Elon Musk Is Not a Perfume From Avon?

Just to clear up that misconception for anyone else who thought so, Elon Musk is the creator of Tesla Motors, and makes the kind of car that I will likely never own. It’s not the price tag or availability, you see, it’s the lack of cup holders. If I don’t have a place to put my Big Gulp, it ain’t happenin’.

He’s been in the press lately because Iron Man 3 is coming out and he was the prototype for the Tony Stark character. Kidding. He’s been in the news because his space transport company, SpaceX, has made the decision not to patent any of the technology associated with it. Here’s one reason he gives:

“Our primary long-term competition is in China—if we published patents, it would be farcical, because the Chinese would just use them as a recipe book.”

This is one section of the patent area where I’ve always been a little fuzzy. In order to patent your idea, you have to describe it in painstaking detail. This by definition gives other people the “recipe” they need to do exactly the same thing.  Of course, the patent gives you the right to prevent them from doing it, one giant flaw being that the onus is on the creator to go out and find the infringers, or, you know, pay someone to do it for them.

Instead of going that route, SpaceX has decided to just put their product out there. In cases where the idea is very complex or the investment capital needed is large, it’s not an unsafe bet. By the time anyone else reverse engineers his rocket technology, Mr. Musk will be (wait for it) light years ahead of the competition. He’ll have captured enough market share that it will be hard(er) for anyone to come in and start taking over, unless they build a better mousetrap. In which case he’d get beat fairly and squarely. No patent required.

Except whoops! We live in a very litigious society. This may come as a surprise, but there are whole companies devoted to sniffing around trying to figure out if anyone is infringing on anything even modestly resembling their spurious patents. So even though you don’t feel the need to patent your stuff, other people can still come after you if they think you stole their stuff.

Further, having not patented anything, you can’t threaten to counter-sue anyone who comes after you. This is what makes the trolls so dangerous: they have far less incentive to settle because they don’t make anything that you can counter sue them for infringing on.  Likewise, if SpaceX has no stable of patents of its own to draw on, you’re exposed. This is why I think Google bought Motorola, or at least part of the reason.

Cheryl Milone of Article One Partners makes this point very eloquently:

“Simply eliminating one area of IP protection is risky because, regardless of whether or not you participate in the patent system, you are subject to its obligation,”

You have to play the game the way it’s currently set up, and work in the background to change the rules if you don’t like them.  But just like when your toddler puts his hands up over his own eyes and says “You can’t see me!!”, he’s only fooling himself.  Just because he can’t see you, doesn’t mean you can’t see him.

My mind is kinda split on this one, because I’m with Elon all the way, even though I’m sort of disappointed I can’t order his bath salts from the Avon World Sales Leader.  I think he’s focusing on just the right thing and if I were in his position I would do exactly what he’s doing.

But the other half of me is in the camp that says just because you want something to be true doesn’t make it so.  My mom used to have this saying when we were little:

Want in one hand, spit in the other and see which one fills up first.

In Elon’s case, I really do hope it’s the “no patents required” hand.

Just sayin’,

IPTT

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One thought on “Elon Musk Is Not a Perfume From Avon?

  1. Pingback: Everyone’s a Patentpreneur Now | IP Troll Tracker

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