Elon Musk on Patents and Intellectual Property

When I was first starting out developing technology, I got lots of patents and thought this was a good thing. And then I sort of discovered that a patent was really like buying a lottery ticket to a lawsuit.

Darned if he doesn’t sound a bit like Peter Kropotkin, who wrote in The Conquest of Bread in 1906,

Patents isolate the inventor. They compel him to keep secret his researches which therefore end in failure; whereas the simplest suggestion, coming from a brain less absorbed in the fundamental idea, sometimes suffices to fertilize the invention and make it practical. Like all State control, patents hamper the progress of industry. Thought being incapable of being patented, patents are a crying injustice in theory, and in practice they result in one of the great obstacles to the rapid development of invention.

Note that, operating in our litigious world, Tesla Motors continues to apply for and receive patents. Google Patents lists 3,909 patents assigned to Tesla, Inc. and 25 assigned to SpaceX, mostly for StarLink-related technologies.


Please correct me if I’m wrong, but the “business advantage” (to quote the interviewer) is to reduce the likelihood that a startup sues Tesla for patent infringement.

Telsa’s perhaps inaccurately named* “open-source” licensing only applies to those who agree to do likewise.

*Is Tesla making the source code for any computer-implemented patented invention available?

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Perspectives on patents cover the full spectrum. Someone wrote a book a while ago (sorry, I forget the title) arguing that the reason the Industrial Revolution happened in England was because English patent law rewarded innovation. On the other hand, there have been serious viewpoints that James Watt’s expansive patent on steam engines delayed technological advances for decades. The only sure thing is that patents generate income for lawyers!

In a world in which China is hoovering up information and reverse engineering when necessary, Musk’s idea of staying in business by innovating faster than any competitor makes business sense. But that requires a continuing large investment in R&D.


I think without the patent system it would be extremely hard to pay for research and development. Thus, I don’t think people would be open about their research. Currently many advancements are held as trade secret. This would be the fall back position.

Maybe I am missing it. Maybe I need to read his book, but with open technology margins will be slim and research cannot be funded.

One of the many absurd things about our patent system is that some of the the most possessive and obsessive patent holders are government and government-funded universities who have been given a privileged position.


I agree that government funded research should not be patented.

I am not a big supporter of government funded research regardless.

My first instinct with regard to government is negative. Thus, my tendency would be to agree that a patent system is probably bad given the government fingerprints. But I lack the imagination to see how open sourced would work. China is a good example of giving away technology. As soon as they access the technology the price erosion is so fast, you cannot afford to try to out innovate them.

I understand Elon’s point that he believes they will. But he has been fortunate to be allowed to burn through capital. Maybe this is due to low interest rates, the ESG craze or because of people’s belief in Elon. I don’t know.

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Interestingly, China is insanely patent-obsessed. There are subsidies for getting patents from almost every level of government.

I will confess to being part of the tinfoil hat brigade which suspects (suspects, not knows) that the Chinese Communist Party has been waging economic war against the West for a couple of decades – our Political Class has simply been too slow to notice.

China has an understandable obsession with their “Century of Humiliation” at English & Japanese hands; their objective is to make sure that no foreign power can ever do that to China again. Part of their economic war involves “Know your enemy” – and the CCP understands us much better than we understand them. Patents are a good way of throwing sand in Western gears.

Well, it is a theory.


Musk’s stock just went up with me.

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One of the major motivations for assembling a large patent portfolio is not generating income from licensing of patents or preventing competitors from using your innovations but purely defensive. Now, I can’t speak for everybody that patents stuff, but this was certainly what motivated us at Autodesk when we began our patenting spree in the mid-1980s. (Autodesk and its subsidiaries now hold 3,564 patents.)

Having been badly burned during our initial public stock offering in 1985 by a patent troll extorting money for a patented “invention” which had been in common use in the industry at least a decade before being patented by the troll, we were advised by patent lawyers (who were not, of course, disinterested in the matter) that the best defence in those early Wild West days of software patents was to amass a large patent portfolio in which you could find something with which to threaten anybody who came after you with their patent and offer a mutual cross-licence of your patents. This was particularly effective against large companies, and could provide you access to their patent storehouse. Conversely, IBM and AT&T were masters of this, and when they wanted access to somebody’s patents, they could almost always find something the assignee was doing that infringed one of their patents and say “Let’s make a deal.”

In this way, the patent system reinforces itself. The threat of claims of infringement motivates the threatened to get their own patents to deter attacks and settle them through cross-licensing. As Ctlaw said in the first comment, what Tesla is doing is not open source in the usual definition, but rather an open-to-all-comers cross-licensing deal where you can gain rights to use all of Tesla’s patents in return for reciprocal licensing of your own to them. This is advantageous to them since it provides access to innovations made by smaller competitors in return for licensing their own work which probably wouldn’t be worth litigating to defend.

In 1993, I proposed a way out of the software patent mess in “Patent Nonsense”. Nothing came of it.


As much as I admire Musk for founding/funding SpaceX, and leading Tesla, when I see his statements above on patents I get the sense he is saying one thing to academic audience, while doing the complete opposite – so I think he is a Trumpian type in that he is a promoter that leaves details to smart people he hires.

Peter Kropotkin was an interesting character, when I was in college in the 80s and derelicts in the dorms spray painted an A with a circle around it in the fire escape stairways (and other places), I wondered the source of the anarchist movement. Now I know one …

(I can trust Wikipedia on political topics ??? ) There is hope with Dr. Larry Sanger’s project https://encyclosphere.org/ .