Musk on Patents and Competition, and on a Free Mars

Some interesting recent comments by Elon Musk about patents and competition:

Elon Musk: “Nothing any of my companies have done has been to stifle competition. In fact, we’ve done the opposite,

At Tesla, we have open-sourced our patents. Anyone can use our patents for free.

At SpaceX, we don’t use patents. Once in a while, we’ll file a patent just so some patent troll doesn’t cause trouble. But we’ve done nothing anti-competitive.”

Elon Musk: “Nothing any of my companies have done has been to stifle competition. In fact, we’ve done the opposite,

At Tesla, we have open-sourced our patents. Anyone can use our patents for free.

At SpaceX, we don’t use patents. Once in a while, we’ll file a patent just so… pic.twitter.com/0y7m8WrY3Q

— Zen (@TeslaZenX) August 3, 2026

Now it is true that most billionaires are mainstream on most issues and pro-IP, or neutral at best. A couple better than average, however. Mark Cuban, to his credit, at least opposes “stupid” patents, and endowed EFF’s “Mark Cuban Chair To Eliminate Stupid Patents”. Even if neither he nor EFF oppose patents on principle,¹ and even if the problem with patent law is not bad patents or patent trolls—it is good patents by non-trolls.²

And as quoted above, Elon Musk seems also critical of patents and recognizes they are anti-competitive. His comments are a bit confused, though. For example, he says:

At Tesla, we have open-sourced our patents. Anyone can use our patents for free.

Well, it’s not so clear what it means to have “open sourced” patents. As I recall, Teslas issued a press release saying they’d allow anyone to use their technology, but that’s necessarily a binding license.³ Big companies probably won’t rely on a press release for billion-dollar investments; what they would really need is a a signed license.⁴

Musk also said:

At SpaceX, we don’t use patents. Once in a while, we’ll file a patent just so some patent troll doesn’t cause trouble.

Well … first, as noted above, the problem with patents is not patent trolls (patents held and asserted by non-practicing entities) or bad patents—it’s good patents held by practicing entites—your competitors.² It is true that some companies acquire patents for defensive purposes—not to use them against trolls, but against practicing entities. If someone sues you for patent infringement, if they are a competitor you can countersue them using your patents; that’s one reason to acquire patents: for defensive purposes.⁵ But they cannot be used against patent trolls since they do not make products and so none of your patents are infringed by them. So patent trolls are not the reason Tesla or SpaceX acquires patents. But perhaps Musk misspoke.

More interesting however is the effort by Twitter to actually do more than just promise in a press release not to use its patents offensively. Twitter made a serious effort by requiring employee permission to use patents offensively.⁶ This was back when it was controlled by Jack Dorsey, who is also opposed to patents, as is Musk apparently.⁷ So now Musk also owns controlling interests in the anti-patent Twitter as well as Tesla.

Also interesting from a libertarian perspective is Musk’s Starlink. The Starlink Terms of Service in §10 attempts to keep Mars from being subject to the legal jurisdiction of Earth states:

10. Governing Law and Disputes.

For Services provided to, on, or in orbit around the planet Earth or the Moon, this Agreement and any disputes between us arising out of or related to this Agreement, (“Disputes”) will be governed by and construed in accordance with the applicable Laws and Courts in Peru. For Services provided on Mars, or in transit to Mars via Starship or other spacecraft, the parties recognize Mars as a free planet and that no Earth-based government has authority or sovereignty over Martian activities. Accordingly, Disputes will be settled through self-governing principles, established in good faith, at the time of Martian settlement

1. See Mark Cuban Funds EFF’s New ‘Mark Cuban Chair To Eliminate Stupid Patents’; Mark Cuban: Patent law is killing jobs; Independent Institute on the “Benefits” of Intellectual Property Protection. [↩]
2. Patent Trolls, Bad Patents, and Incompetent Examiners are Not the Problem. [↩] [↩]
3. See KOL475 | Guest Lecture: Intellectual Property: Principles of Austrian Economics II | ECON104 (Saifedean Ammous and Saylor Academy); Planet Money: The Case Against Patents. [↩]
4. Jeff Tucker: Doing Business Without Intellectual Property. [↩]
5. See “The Patent Defense League and Defensive Patent Pooling”; The Patent Bay Non-Assertion Patent Pledge. [↩]
6. Twitter Heroically Promises Not to Use Patents Offensively. [↩]
7. (Musk and Dorsey: “delete all IP law”; KOL459 | Twitter Spaces: Jack Dorsey, Elon Musk, Libertarian Property Rights, and the Case for Abolishing Intellectual Property. [↩]