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There is More to Industrial Enclosure than Patents

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Eric Blattberg, writing for VenturBeat, reports (“Tesla Motors: Please infringe on our patents for the greater good,” June 12) that electric car manufacturer Tesla will henceforth permit all comers to exploit its innovations. “Tesla will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology,” says Tesla CEO Elon Musk.

I think the importance of patents in enclosing the motor industry is overstated. Legal precedent around the issue has consistently favoured openness regarding component replacement for a very long time. Anyone is free to manufacture a component designed to replace a part of a patented system without thereby being guilty of infringement. With few exceptions, moreover, automotive patents pertain to details competitors easily design around. Yet the motor industry as it stands today is a supremely enclosed industry, due to product standard, safety and emissions regimes.

Musk understates the mainstream industry’s interest in electric propulsion. All the major manufacturing groups have programmes ready and waiting, complete but for the regulatory framework needed to protect them from entry en masse by a profusion of new start-ups. It is in a sense choreographed, as it usually is: As I said before (apparently somewhat controversially), the mainstream industry’s agenda is an agenda of change, but a specific single programme of specific changes at specific times. If it’s not in the script, it must be killed — but I believe electric cars are very much in the script. They have too much going for them from a corporate capitalist viewpoint — far more to my mind than they have going for them from an ecological viewpoint.

For starters, they eliminate all that finicky skilled labour required to put together an internal combustion engine properly. They eliminate all that variability of parts that constantly tempts the customer to get above herself technologically. The electric car has too much potential at last to become the one-part, disposable car not to be a hugely important part of established manufacturers’ long-term plans. Not least, increasing the digital-electronic content of the car makes it much more permeable to the established software “intellectual property” legal tradition, which is much more onerous than that around IP in automotive hardware.

Certainly Tesla is closer in nature to any established major manufacturer than to the loose networks of local component-makers and assemblers I’d like to see. Two factories on two continents and a three-digit weekly output would have made them distinctly plutocratic in the ’20s. Nor are they any exception to the state-enforced idiomatic requirement for the techniques of mass production, or they would not have been legally tolerated, especially in California. Electric propulsion frees them from the regulatory burdens pertaining to internal combustion engines — that was the loophole that allowed the company to operate at all — but their products remain subject to the entire edifice of supposed safety regulation, including expensive destructive testing in development and anti-tampering legislation in use.

I wonder about the motivation in forgoing these patents, given that many are relatively toothless. Tesla obviously wishes to play the heroic underdog, to imply solidarity with the open-source movement despite operating in an industry legally effectively prohibited from embracing open-source methods in any meaningful way. Open-source becomes trivial when subject to the sort of model conformity which a type-approval regime requires. The resulting lack of diversity of possibility and ad-hoc flexibility is analogous to the difference between representative democracy (let’s all vote on what same things all of us are going to be required to do) and anarchy (let’s all do different things, as and when we variously choose.) Hence, no technological change but only political change is capable of changing the motor industry. Tesla’s very existence counts against them.

The popular perception that anything that runs on electricity must be eco-friendly, contrary to the consensus in serious off-grid alternative-energy circles that electricity is a premium source which should be reserved for lighting and communications and little else, could not have come cheap. I’m seeing it more and more: People honestly believe that a toilet hard-wired into a house’s electrical system uses less energy than a toilet that has no electrical connection at all; who honestly believe that running an electrical resistance oven off a few PVs is only a matter of time. That didn’t grow by itself.

Tesla doesn’t have that kind of money, but someone has an interest in spending it. Tesla is not the only company with an interest in an analysis according to which the great problem is that 90 million of the 100 million cars made annually are not electric, instead of the more sensible view that the problem is that those 90 million cars are made at all, to satisfy the demands of a largely artificial mobility scenario. And outside that artificial situation, with its pressure of traffic, frequent stop-starts, and noise, not to mention intensive policing and huge infrastructural investment, I submit that the electric car as such has little or no benefit.


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