Giving Away the Future?

Every so often, I invite a colleague to contribute to Leaping Robot. Today, I'm pleased to introduce Shobita Parthasarathy. Shobita is an associate professor at the Gerald R. Ford School of Public Policy at the University of Michigan and her research addresses, among other topics, the politics of the patent system. As you'll see, she offers some timely input on some news that created big waves in the tech community last week...Last week, entrepreneur Elon Musk announced that his electric vehicle company would no longer enforce its patents. Musk's news - posted on the Tesla Motor's blog - had nerd geek appeal. It's title "All Our Patents Are Belong to You" may have raised confusion for some but it was a play on a classic gamer geek phrase.Almost immediately, both traditional and social media went wild with breathless excitement. (A good review is here.) Many hailed Musk as a savior, willing to risk his own profits in order to accelerate a clean energy future and fight climate change. Others appointed him as the new leader in the open source movement, which believes that better technologies will result from a more collaborative innovation culture that includes sharing intellectual property.Musk himself explained the company's strategy thus: “Technology leadership is not defined by patents.” He argued further, “When I started out with my first company, Zip2, I thought patents were a good thing and worked hard to obtain them. And maybe they were good long ago, but too often these days they serve merely to stifle progress, entrench the positions of giant corporations and enrich those in the legal profession, rather than the actual inventors….”What is most extraordinary about Musk’s statement, and the public discussion that has followed it, is its demonstration of both deep public interest in and growing skepticism of the patent system. For most of its two-century history, policymakers, innovators, and citizens have trusted that the patent system “worked”: the highly technical experts that populated it could determine effectively—in an objective manner—which technologies deserved exclusive commercialization rights. And they have believed that the promise of these rights would stimulate innovation. This would not only serve the public interest in and of itself, but also lead to economic growth and social benefit.But things have begun to change. Over the last few decades, as citizen engagement and activism in scientific, technological, and economic matters has grown, scrutiny of patent systems has also increased.  This has raised many critical questions:

• Does the patent system really achieve the public interest?
• And what should the public interest be in this context?
• Should we be allowing patents on ethically problematic inventions?
• What about patents on essential medicines which lead to increased prices in the midst of public health epidemics?
• What responsibility does the patent system have over social, economic, and environmental problems?
• And finally, does the patent system even work in terms of stimulating innovation?

In addition to garnering extensive media coverage, these concerns have led to lawsuits, protests at patent offices, Congressional interventions, and public advocacy campaigns.Musk’s decision with Tesla Motors raises these questions yet again. It’s not yet clear that his approach will produce an outcome that maximizes the public interest. It could encourage more companies to participate in the emerging electric vehicle industry, but there is no evidence that Tesla’s patents have been the barrier until now. Rather, there has been ambivalence about investing in such an uncertain area, particularly given the infrastructural change needed. Given that, to the extent that this decision does inspire innovation, it seems likely that it will inspire an industry and infrastructure around Tesla’s technologies. In other words, Tesla’s approach to electric vehicles will become the dominant paradigm. Although this could be a significant contribution to reducing carbon emissions, it also places enormous power in Tesla’s hands. Should we place that kind of power into the hands of one company, particularly in matters as important as climate change and our clean energy future? What if there might be better, cheaper, or more environmentally friendly approaches?But Musk’s decision does provide us with the opportunity to think about what kind of intellectual property and innovation systems might better achieve the public interest. First, rather than simply considering intellectual property as a narrow and esoteric area of law, we need to think explicitly about it in the context of innovation policy more generally. Intellectual property plays an important role in stimulating innovation and shaping markets. If citizens and governments want to stimulate and reward certain types of innovation and encourage certain kinds of markets, the patent system must play a role alongside research and regulatory policy domains.Second, if we begin to rethink patents in policy, rather than legal, terms, then we also need to encourage government expertise in the critical assessment of not only the social, economic, and environmental implications of technologies, but also the implications of patents.Third, we need to consider whether our one-size-fits-all approach to patents really makes sense. Scholars have long discussed the possibility of tailoring intellectual property protections to particular industries. But perhaps intellectual property protections should be different depending on the economic and social value of the proposed invention?Regardless, if governments and their citizens want to stimulate innovation that is truly in the public’s interest, then we need to seriously reconsider the shape of our intellectual property systems. Simply abandoning patents might benefit Elon Musk, but the implications for the public are far more uncertain.