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Tesla encourages free use of its patents—but will that protect users from liability?

Brad Greenberg

Brad A. Greenberg is Intellectual Property Fellow at Columbia Law School's Kernochan Center for Law, Media and the Arts and is Visiting Fellow at the Yale Information Society Project. His scholarly publications can be found on SSRN; often more-trivial comments are tweeted @bradagreenberg.

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5 Responses

  1. What’s your theory on why reliance is unreasonable, given that while the details of the promise are vague, the core thrust is clear? And what’s your theory on why an estoppel wouldn’t bind successors in interest to the patents?

  2. Brad Greenberg says:

    James: That’s an interesting point, that even though the specifics are elusive, the purpose of the announcement is much-less vague.

    That said, how broadly would you define the clearly core thrust? To my reading, it clearly has electric vehicle technology in mind. More generally, maybe Tesla wants to encourage all sustainable transportation. Maybe even all eco-friendly projects. But would about practicing Tesla’s patents for something totally unrelated? The “good faith” couching seems to inject additional ambiguity.

    I spoke too emphatically about the unlikeliness of any reliance being reasonable. But in many situations, I think it would be uncertain.

    I had no separate theory of third-party enforceability; it was derivative of whether and when Tesla would be estopped or not.

  3. Paul Gowder says:

    Hmm… three thoughts.
    1) Is there any caselaw on what it would take to actually commit a patent to the public domain? Is there some formal process?
    2) Or what about an equivalent to Creative Commons for the patent domain? Would there really need to be individually negotiated license agreements, or could Tesla just post a website, put specs available for downloading, and say “by using these specs, you agree to these (open-source) terms?
    3) Finally, if Tesla turned around and sued, what about tort liability on some kind of fraud/interference with contract theory?

  4. Brad Greenberg says:

    1. Well, it’s not this: http://www.cbc.ca/news/business/tesla-puts-electric-car-patents-into-public-domain-1.2673617. I think the abandonment doctrine does that work: http://www.uspto.gov/web/offices/pac/mpep/s2134.html. An inventor also could publicize and fail to timely file a patent application, though I think the AIA makes this a risky move.

    2. I think so (and without the termination wrinkle that makes CC questionable in the longview).

    3. Tell me more about the theory.

  5. On the revocability of promises not to sue, I recommend the work of Chris Newman (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2010853) and Jennifer Urban and Jason Schultz (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2040945) (the Defensive Patent License is a direct outgrowth of the latter).

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