Neil Stevens’ Tech at Night post about patents on RedState must have struck a nerve with Tony Stark Elon Musk. His electric car company, Tesla Motors, has converted all their patents to open source. In a Tesla blog post All Our Patent Are Belong To You, Musk wrote:
Technology leadership is not defined by patents, which history has repeatedly shown to be small protection indeed against a determined competitor, but rather by the ability of a company to attract and motivate the world’s most talented engineers. We believe that applying the open source philosophy to our patents will strengthen rather than diminish Tesla’s position in this regard.
From the Tech at Night post:
Across many industries, there are companies that buy up patents, good or bad, for the sole purpose of finding friendly, out-of-the-way venues, spamblasting form letters, and taking honest businesses to court to leech money. It’s a cost on real businesses creating jobs and wealth in this country, and legislation to stop patent trolls is welcome.
Stevens’ idea is to convert the USPTO from a patent fee-funded to a flat-funded budget, with the effect of (hopefully) offering a disincentive for the office to issue lots and lots of rubber-stamp patents. I would agree with Neil if government was rational. The little knot in my gut telling me that the result would be even more rubber-stamp patents won’t go away, even though that’s irrational.
The USPTO can do less diligence with less people and less budget, but issue the same number of (or more) patents, because its culture has become one of production, versus care. This production culture is partly driven by business’ insatiable appetite for patents, and the cottage ivory tower industry of patent lawyering, enforcing and defending that’s grown up around it.
Unfortunately, the solution of cutting the USPTO’s budget would be like enforcing price controls at McDonalds. The same number of people would want to eat there, but the food would be worse and more cheaply made; in the end they’d sell just as many (or more) hamburgers.
The best way to slow down patent bloat is to curb the appetite for them.
Kudos to Musk for his insight and leadership on this. We need more business leaders to take the same steps. Less patent applications mean less patent trolls. Not every business needs patent protection (pharma companies do, and semiconductor producers do), and in fact patents inhibit innovation and growth in many industries.
Gone are the days of the lonely inventor toiling away in his lab, churning out ideas and patents. We can’t ever go back to that, so let’s stop pretending we can.