Will Elon open up the one patent SpaceX has? Is not patenting much working out?

[Roy_H]

If SpaceX can prove that their design was in production before the competitor filed a patent, then the "prior art" should be in SpaceX favor. This would make the idea un-patentable.

[Sesquipedalian]

Allegedly, prior art didn't stop Makerbot from filing the patent either.  But on further research, it seems that my understanding of the Makerbot situation was incorrect.  (I had read one of the initial articles when the story first broke but hadn't subsequently followed up on it.)

[Dave G]

... Musk is on record about not filing patents for SpaceX's stuff, relying on secrecy instead, his concern being that China will simply use the patents once published.

Exactly.  The Chinese have shown no respect for intellectual property. 

If SpaceX files for a patent, they would have to explain what they're doing in some detail.  If the patent is approved, then this information will be made public, and the Chinese will just copy it.

[GregA]

Allegedly, prior art didn't stop Makerbot from filing the patent either.  But on further research, it seems that my understanding of the Makerbot situation was incorrect.  (I had read one of the initial articles when the story first broke but hadn't subsequently followed up on it.)

The US changed their method of patent application a few years ago. They allowed much broader submission of patents without the same initial rigour of investigation as to whether the patent was likely to hold up. Their argument was good and quite simple - their initial investigation was costly and often fought later in court anyway, so they'll file and approve the application more easily and if someone protests then it'll still be fought in court.

The downside was the impression that someone owns a legitimate patent. I think McDonalds patented a cheese sandwich. Much the same as we hear reports all the time of people suing over something stupid, which doesn't mean they won their case - in fact the same stupid cases that get people's attention and are reported in the news are often the ones that end up losing... but it misleads society into misunderstanding their own rights.

So Patents on something with prior art will make it through, but not necessarily be enforceable. In fact it's impossible to avoid if SpaceX does something novel, and doesn't tell anyone HOW it does it, then a competitor who comes up with the same answer won't realise they're doing it the same way when they patent their method.

Perhaps SpaceX will approach it like copyright. When writing a script we were encouraged to seal the early version and store it legally - even a postoffice stamp on a sealed envelope, crossing the seal. A "patentable" idea could be described and sealed & stored, legally and securely. If they ever need to prove their idea came many years ago, they open that envelope in a legal setting.

[Lar]

That sounds like an interesting business model... "we hold your information for you, timestamped with a good evidence chain, and don't disclose it to anyone until you ask us to"

[Coastal Ron]

So Patents on something with prior art will make it through, but not necessarily be enforceable. In fact it's impossible to avoid if SpaceX does something novel, and doesn't tell anyone HOW it does it, then a competitor who comes up with the same answer won't realise they're doing it the same way when they patent their method.

Perhaps SpaceX will approach it like copyright.

I would think they should also be able to show they had prior art by showing the court the in-house documentation (released drawings, manufacturing process documentation, etc.) proving what they had already done.

[QuantumG]

.. and it'll only cost you a few million dollars in discovery and legal costs to show that you have prior art!

The more typical response is to show the patent owner that you could win in court (both legally and financially) and then negotiate a cheaper licensing fee.