Elon Musk is no stranger to taking on powerful forces that stand in the way of his Earth-changing missions, but drug lord families still seem like an odd addition to the list. Despite the improbability, infamous cartel founder and cocaine kingpin Pablo Escobar has recently been linked to the serial entrepreneur over The Boring Company’s Not-a-Flamethrower, specifically through Escobar’s brother. Roberto Escobar claims Musk stole the Flamethrower design from him and plans to sue over it – unless Musk agrees to hand over $100 million dollars in either cash or Tesla shares, that is.
“Elon we both know you stole from me, I am OK to settle this right now for $100 million. Tesla shares is OK or cash. I will win in court, and you will lose more than $100 million,” Escobar said in a statement to The Next Web. “Maybe I will make myself new Tesla CEO with the courts?… Let’s settle this like gentleman. Send me the Tesla Shares to Escobar Inc.”
Someone associated with Musk’s business activities reportedly spent time with Escobar (the living brother, not the deceased drug lord) in the summer of 2017 wherein an Escobar Inc. toy flamethrower concept was discussed, according to a report originally published by TMZ. The Boring Company’s Flamethrower, announced in January 2018, apparently was a dead ringer for Escobar’s idea design-wise, leading cartel leader’s brother to angrily conclude that his idea had been stolen. Musk later responded to TMZ‘s report on Twitter, saying “It’s Not a Flamethrower, Mr Escobar.”
The dispute is interesting and unusual, to say the least, but we can be sure there’s one thing Boring clearly did not get from Escobar Inc. – the flamethrower’s purpose.
“I want the people to be able to burn money, like me and Pablo used to do. I burned probably a couple of billion dollars over the years. Literally burning the money. For many reasons,” Escobar was quoted as saying about the device.
Escobar is now weighing his legal options against Musk, although it’s not clear what options are exactly available.
Prior to 2013, if an inventor could demonstrate their invention predated someone else’s patented invention for the same thing, they could sue and work out a financially retroactive deal to be compensated for their work (more or less). However, with the enactment of the America Invents Act, the United States now has a “first to file” system that only gives inventors one year from public disclosure of their invention to file for patent protection. In Escobar’s case, he’s basically too late to file for a patent where it would matter most to Musk – in the United States. The only other legal workaround would seem to be a lawsuit over a non-disclosure agreement, which doesn’t appear to have happened here. It’s not enough that there were witnesses to the discussion, and it also doesn’t seem like there was even a handshake-type understanding over any claims to the design.
Another thing worth mentioning is that if The Boring Company has already filed for patent protection of its Not-a-Flamethrower design, it doesn’t appear to have published yet based on patent database searches. Since the idea was disclosed in January 2018 (or even 2017, based on Escobar’s claims), it’s now considered ‘prior art’ and renders any other highly similar patent filings ineligible for protection. It would appear that Escobar’s best bet for legal protection would have been to file for a patent right after Musk’s flamethrower was announced so both devices would have been in that muddy one-year window and open to a court fight. Alas, it’s all water under the bridge now.
The Boring Company had a few options to pursue here, actually. First, the tunneling venture could have filed for a design patent which only protects what their flamethrower looks like. These types of patent applications usually issue to full patents quickly unless the patent examiner objects to it based on similar designs. If Boring went this route, we should see a patent show up shortly if one was filed around the time of the product announcement in January 2018.
A second option The Boring Company could have taken was to file for a utility patent, meaning there was some sort of technical merit to the Not-a-Flamethrower’s design. These publish 18 months after filing unless non-publication is specifically requested. If Boring went this route, well, there are so many timelines that could have been taken, it’s hard to say whether we’ll see anything until a patent issues, assuming one issues at all. Regardless, the patent route was Escobar’s only real route for lawsuit-driven compensation, and he seems out of luck.
Perhaps in response to recent publicity, the Escobar Inc. Flamethrower just went on sale for $250, and according to its company website’s History page, 20,000 units will be produced. This, of course, is the exact amount the Boring Company sold at the original price of $500. Among other interesting news items, one of the gems from that same History page reads, “2004 – Roberto de Jesus Escobar Gaviria is freed from Itagui Prison based on excellent behavior.” This important moment in the Escobar Inc. chronicles is surely only matched by the successful launch of Escobar Inc.’s Flamethrower for burning cold hard cash in cocaine kingpin fashion.