Elon Musk Clarifies That Tesla's Patents Really Are Free; Investor Absolutely Freaks Out

from the silly-investors dept

We’ve written a few times about Elon Musk and Tesla’s decision to open up all of Tesla’s patents, with a promise not to sue anyone for using them. We also found it funny when some reacted to it by complaining that it wasn’t done for “altruistic” reasons, but to help Tesla, because of course: that’s the whole point. Musk recognized that patents frequently hold back and limit innovation, especially around core infrastructure. Since then, Musk has said that, in fact, rivals are making use of his patents, even as GM insists it’s not.

However, as some may recall, when Musk made the original announcement, the terms of freeing up the patents were at least a little vague. It said that Tesla “will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology.” That “in good faith” claim had a few scratching their heads, and pointing out that still gave Tesla an out. We were a little disappointed that the company didn’t make the terms entirely clear, believing that the “in good faith” line would likely scare away some companies from actually using the patents. However, recently, at the Detroit Auto Show, when questioned about this, Musk clarified that he really meant to make them completely free for anyone to use, no questions asked, no licensing discussions needed:

Around the three-minute mark someone asks how many automakers have taken Tesla up on the offer to use its patents, and Musk notes:

Musk: We actually don’t require any formal discussions. So they can just go ahead and use them.

Reporter: Is there a licensing process?

Musk: No. You just use them. Which I think is better because then we don’t need to get into any kind of discussions or whatever. So we don’t know. I think you’ll see it in the cars that come out, should they choose to use them.

In other words, Musk is saying what most of us assumed all along was the point. Hoarding the patents and blocking others doesn’t help him at all. Letting others expand the market does. And licensing discussions are unnecessary friction and a waste of time.

All good, right?

Well, no. It appears that clueless Wall Street types are absolutely flipping out over this (possible registration wall). Some outfit called “Technology Equity Strategies,” which doesn’t seem to understand the first thing about how innovation actually works, posted an insanely long and ridiculously misguided note on how this is horrifying for anyone invested in Tesla. The descriptions are hilarious, where you can almost hear these Wall Street types pulling out their hair over this idea of *gasp* actually letting others use Tesla’s patents. First, it notes that Musk called them “open source” patents, and spends way too much time detailing the “official” definition of open source, and then says that the patents are now “public domain” (apparently not recognizing that public domain and open source are not the same thing — though in this case it might not matter). Technology Equity Strategies is very upset about this.

The restrictions in the June 12 blog of “good faith” and “we will not initiate” are over with. They are finished. These patents are either in the public domain, or they have at minimum been rendered unenforceable against all users, “good faith” or not.

Why? Because in their non-innovation minds, all they care about is how do you best value the stock, and giving up patents is giving up an asset. The note first (mistakenly) argues that many areas of the tech industry rely on patents as barriers to entry and that’s where their advantage comes in (rather than execution, which is the truth). And so, it thinks now some other company will just come in and eat Tesla’s lunch:

Is it possible that the massive capital and labor needed to attain leadership might not be eroded in by imitators in Asia, by large companies with resources to buy market share, by companies whose strengths are manufacturing process, global footprint and scale?

If so, the embedded option on a leader in a new niche in the auto industry and on a shift in the competitive dynamics in the auto industry might indeed be a valuable option.

But Mr. Musk was not interested in that. He is happy to give away the advantages that actually provide great profitability in some sectors of technology. He wants to compete as an auto company, in the brutal and capital intensive way that auto companies compete. More fundamentally, he is willing to eliminate the possibility in the future of competing as a technology company, which depend on the IP protections of patents, copyright, and trade secrets.

Of course, the reality is that Musk recognizes what many in this sector recognize: that sharing the ideas helps speed along innovation, creating greater and greater opportunities, which you can realize by executing well. Musk is confident in Tesla’s ability to execute and (as we noted earlier) recognizes that sharing the patents actually helps Tesla by getting more electric vehicles on the market, meaning more overall infrastructure that makes Tesla cars more valuable.

This is the ridiculousness of Wall Street: sometimes it simply can’t understand the nature of a non-zero sum game. Giving up any “advantage” is seen as helping others, without recognizing that helping others can also help you out tremendously. Instead, these investor types believe in the myth of intellectual property, that it’s patents that make a company valuable:

Intellectual property is an important foundation for valuation technology companies. Funds that own Tesla may not be the same institutions who own GM or Ford, but many will be familiar with Qualcomm and ARM.

IP goes a long way in explaining why Qualcomm has a market cap of $110 billion, and ARM has a valuation of 23 billion (18x trailing revenues) while Nokia and Dell were sold for less than two times revenues. Nokia and Dell did fine work for a while as manufacturers and product companies. There was a time when they too looked like winners based on product execution. But they didn’t own core IP, and so when product cycles shifted, they were left with little value.

Yes, ARM and Qualcomm are both patent-focused companies (that dip their toes into trolling all too often). And, yes, companies that don’t execute well can lose out in the end, but cherry picking a few companies that have flopped on execution, while pointing to a few trollish companies as success stories, doesn’t make a very strong argument. It’s basically saying “yes, invest in the companies that don’t believe in their own ability to execute, who have a fallback as a patent troll.” That’s not exactly a strong endorsement. Tesla believes in its own ability to innovate — and these Wall Street guys think that’s a bad thing.

And then there’s the rewriting of history:

Let’s look at Apple. Apple and Steve Jobs learned the hard way. Some of us will recall that an early Apple (believing that IP wasn’t important) opened up its IP to the basic Mac interface with a royalty free license to Microsoft.

This resulted in Microsoft Windows taking nearly the entire PC market from Apple, and nearly bankrupting Apple. In his second chance, Steve Jobs learned about the importance of IP. This is a lesson that Mr. Musk failed to absorb.

Except, that’s totally incorrect. While Apple had licensed a few aspects of its UI, that licensing agreement became meaningless by the time of Windows 2.0. Then Apple sued Microsoft and lost, because it was trying to use copyright law to claim things that could not be covered by copyright law. And that’s not why the PC took over the market. So this isn’t a lesson that Musk failed to absorb, because it never happened.

The Grand Gesture shows the worrisome sincerity in Musk’s repeated statements that he is primarily on a mission to get other companies to sell a lot of electric vehicles, not to make money.

A worrisome sincerity? No, it’s showing that Musk recognizes that if the market for electric vehicles does not grow massively, then he won’t make money. He very much wants to make money, and a good way to do that is to build out the overall market for EVs, allowing Tesla to thrive. And these Wall Street folks first mock the idea that Musk might first invest to grow the market, by then… claiming that Asian makers might do the same thing:

No doubt Mr. Musk believes that if the industry embraces EVs, then Tesla will succeed as part of it. But is this plausible, that everything will just work out for the best. Is it plausible that Musk can succeed as a manufacturer in the U.S. competing against manufacturers in Asia who may take zero margins to grow a business, using Musk’s proven designs? U.S. companies have learned over and over that IP is necessary to get a sustained profitable return on their innovations.

Actually, no. Plenty of tech companies don’t think that IP is “necessary” to get sustained returns — they think the opposite. Patents get in the way of profitability. They require lots of lawyer time and threats of lawsuits.

Frankly, Tesla opening up its patents seems like a move that shows how confident it is in its execution abilities, and makes the company a lot less likely to rest on its laurels and become nothing but a “licensing” company down the road. The fact that people who don’t understand what a mess patents are and how they slow down innovation are now jumping in making ridiculous claims like Tesla’s decision is why Apple can now jump into the EV car market just shows how little some people understand patents. The “myth” of patents as a powerful tool of innovation is still out there, and that’s a shame.

Filed Under: elon musk, free, innovation, investors, open source, patents, wall street
Companies: technology equity strategies, tesla