Imagine

Published date03 November 2022
Subject MatterIntellectual Property, Patent
Law FirmJMB Davis Ben-David Ltd.
AuthorMr Jeremy M. Ben-David

So what do you think of when someone says to you "Imagine"?

For many, they will immediately think of the immortal song released by John Lennon in 1971. It says different things to different people. For example, imagining "all the people livin' for today" raises the age old existential question as to the purpose of our very existence. And so the song continues, and each line, when properly considered, gives rise to very serious questions; questions that we should be asking, even if we don't necessarily agree with the answers hidden in the lyrics.

I thought of this song, now 51 years old, after hearing that Elon Musk had recently been quoted as saying 'patents are for the weak'. Being naturally curious about what I viewed to be rather strange, I found that he did in fact make such a statement when talking to Jay Leno, as reported on the CNBC website. Musk was quoted as saying "I don't care about patents" and "Patents are for the weak". He was further quoted as contending that "They're used like landmines in warfare," and "They don't actually help advance things; they just stop others from following you."

This is nothing if not provocative. Since I started practicing in the mid-80's I have come across statements such as "I don't believe in patents but my investor said I have to come and see you", and "we don't register patents because our technology is so far ahead of others". But are patents really "for the weak?"

I agree with Musk with regard to his landmines analogy. They are used to stop followers, but then that is the whole basis of patents, namely, a transaction between society and inventors, wherein the inventors are incentivized to invent in exchange for limited monopoly rights aka a patent.

But does that make companies weak? Registering and owning patents? I could refer to the ownership by Musk's flagship company Tesla, of 3,304 patents (as per the 2000-2020 statistics shown on the Statista website). However, as they have relatively recently made so many available for open license it is possible that Musk had a change of heart and believes what he is now saying. Maybe he is even slightly embarrassed by his...

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