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SpaceX founder Elon Musk recently gave Jay Leno a tour of his Starbase spaceport.  During the tour, Mr. Leno raised the topic of patents, to which Mr. Musk apparently replied, “Patents are for the weak.”  Consistent with remarks he has made previously, Mr. Musk offered that he does not care about patents, believes they “are designed to prevent others from innovating,” and that SpaceX does not patent its inventions.  Mr. Musk is a very smart inventor and businessman, but forgive me for finding these remarks a bit out of touch. 

You must consider Mr. Musk’s perspective here.  It is easy to laugh off competitors taking your ideas when you have enough money to flirt with buying a major social media platform.  The average business does not and often must protect its innovation to compete in the marketplace.  Take start-ups, for instance.  Many investors won’t even talk to a start-up unless steps have been taken to protect the ideas upon which the company is based.  Why invest in a new company when anyone else is free to take and use its concept?  A larger corporation could swoop in and drive the start-up out of business without protections like patent rights.  A massive firm like SpaceX, in the rather exclusive field of private space exploration, does not have this problem.  Mr. Musk can afford to share his company’s technology because he is not worried about a bigger fish turning his ideas against him and forcing him to close up shop. 

I also disagree with his assumption that patents stifle, rather than foster, innovation.  Designing a product to avoid infringing another’s patent is an exercise that has, itself, led to discovery.  Products manufactured initially as “design-around” efforts are themselves often patentable and offer surprising improvements.  When you find one path that is blocked, you are forced to examine other paths you may not have otherwise considered.  Existing patents are merely a conduit to further innovation, not a bar.  Forced creativity can sometimes lead to better results. 

Despite the proclamation that SpaceX does not need patents, one of Mr. Musk’s other well-known ventures, Tesla, has a bunch of them and continues to file applications all over the world.  Although Tesla pledges not to initiate a suit for infringing one of its patents, that promise comes with a conspicuous qualifier: “so long as such party is acting in good faith,” along with a bunch of legal disclaimers.  So, even Tesla recognizes that there may be some situations where patent enforcement becomes necessary.  At the very least, patents are useful for dissuading or stopping bad actors from harming your business.

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