Episode 161 · Deep tech · 41 min

A patent is only a licence to litigate

A retired CTO who now advises nine deep-science startups has a blunt rule: a patent is only a licence to litigate, and know-how is the intellectual property that walks out on two legs. The corollary runs through every answer here — split the filing so each vertical can be licensed, and when a customer has watched your technology fail, sell them insurance against it failing again. For eighteen months, those premiums were a high double-digit share of EBIT.

V
Vikram
Startup adviser and former CTO, Independent adviser · with Vishal Krishna
A patent is only a licence to litigate — episode thumbnail
41:12
Said in this episode
▶ 25:41
high double-digit %
Share of EBIT that was insurance premiums
For a year and a half, premiums from customers insuring against a failure that never came were a very high double-digit percent of earnings before income tax.
▶ 13:32
2-3, not 10
Competitors the rule of three tolerates
Two established players copying you, maybe three, build the market and lend credibility in a big segment; ten is a different problem entirely.
▶ 34:09
<20%
Equity ceiling for a strategic partner
A large future customer at 15-20% has skin in the game and absorbs early output; above that it can over-guide the company somewhere the founders did not intend to go.
▶ 32:17
50%+
World iron-making plants only half amortised
More than half the world's iron-making capacity is amortised for only about half its life — the reason carbon-free steel has to work inside the existing plant before replacing it.
▶ 36:37
30x
Scale-up the right-sized pilot could support
Advising a geothermal company, he judged the pilot could be exactly this big — not much smaller, not much bigger — and still scale thirtyfold afterwards.
▶ 28:29
9 months
Defence clearance that usually takes 2.5 years
Evoride Motors' founder says the defence quality approval normally takes close to two and a half years; his team cleared it in nine — and still had to prove the packs in the field.
The brief

The argument in sixty seconds

Vikram's claim is that intellectual property is not a trophy but an instrument of business strategy, and most deep-science founders hold it the wrong way round. Patents are only one of two buckets, he argues; the other is know-how — the IP you deliberately chose not to file, and the kind that leaves on two legs when people do. A patent, in his phrase, is only a licence to litigate. What makes it valuable is structure: US continuations let you add claims in the three years before allowance, once you finally know which vertical is fertile, and Indian divisionals split one filing into four patents that can each be licensed to a partner holding the capital you don't have — worth more, he says, than a field-of-use carve-out on your master patent. The second half of the session is harder, because deep tech satisfies a need that nobody yet wants. His answers are counterintuitive and lived: let two established players copy you, because an incumbent copying a startup makes the market for it; open the books when you fail, because that is where brand equity comes from; and when the customer's disbelief is the only obstacle left, sell them insurance against your own failure — which for a year and a half made premiums a high double-digit share of EBIT, until customers noticed nothing was breaking and simply bought more product. The stakes are the sector's: more than half the world's iron-making plants are only half amortised, so carbon-free steel has to work inside the existing mill before it can replace it, and the founder who cannot size that pilot has to rent the nose that can.

Worth your time if you are

Deep-science founders about to file their first patent
Platform-technology teams that can only afford one vertical
Hardware founders selling to a disbelieving first customer
Climate and energy startups pitching half-amortised incumbents
Early-stage investors sizing pilot plants
Episode map

Where the conversation travels

Every block is a chapter, coloured by what it's about. Click any of it to jump straight to that minute on YouTube.

01Holding a room back from lunch 0:00 The moderator sets up a stories-not-slides session on how value actually gets built in deep-science startups, and asks the room to bring their own value-capture problems rather than rely on her five questions. 02Two buckets: patents and know-how 1:32 IP is not just patents, he says — know-how is the IP you chose not to file, a patent is only a licence to litigate, and the easiest way to lose know-how is on two legs when people leave. 03Need is not want; pick the easy vertical 3:41 With platform IP spanning three or four verticals, a startup should attack the one that is easiest to penetrate to get cash flow, because brand-new science satisfies a need the customer has not yet turned into a want. 04Geothermal swings to energy storage 5:49 A geothermal startup he advises found that utilities wanted energy storage in the near term far more than they wanted a new carbon-free energy source, so it led with storage — and it worked. 05Does the PCT survive the geopolitics? 7:58 An AI researcher asks whether IP protection loses value as trade norms unravel; the answer is that the Patent Cooperation Treaty is holding for now, with an explicit caveat about rising nationalism. 06When you hand IP to a rival 9:29 Told in hypotheticals, the case of a startup that actively helped a sloppier competitor avoid a biohazard — because in a hazardous category the leader can end up leading nothing if the public shuts the market down. 07The rule of three, and borrowed credibility 11:57 His board went ballistic when incumbents copied their disruptive technology, but an established player copying a startup makes the market for it — tolerable for two or three competitors, not ten, and brand equity buys forgiveness when things break. 08Microbes you cannot patent 14:52 A BioPrime founder asks how to protect strains anyone can isolate from a shipped product; composition-of-matter claims are hard to win in the biochemical space, so claim the application and make it as broad as possible. 09Continuations, divisionals and licence income 17:05 US continuations let you add claims before allowance once three years of learning reveal a new vertical, while divisionals split one application into several patents that can each be licensed — worth more than a field-of-use carve-out on the master patent. 10Selling insurance against your own failure 21:31 Facing customers who had belief but no trust, he offered to underwrite the full cost of any failure for a premium — information asymmetry in practice — and adds that when you do fail, go total open book. 11Seven engine starts when six were asked 27:26 Evoride Motors' founder recounts clearing defence quality approval in nine months instead of the usual two and a half years, then proving lithium-ion helicopter starter packs in sub-zero cold at a Leh base. 12Don't replace the mill — decarbonise it 30:05 More than half the world's iron-making plants are amortised for only about half their life, so carbon-free steel should first make the incumbent's existing process carbon free rather than ask it to scrap the asset. 13Strategic partners, capped under 20% 32:48 A large future customer taking 15-20% of your equity is pure gold because it absorbs your early output, but keep it under the level where it can steer the company somewhere you never wanted to go. 14Renting a nose to size the pilot 35:08 Founding teams rarely contain anyone who has done the next stage of scale-up, so build a small advisory board to plug specific gaps — his own contribution to a geothermal company was judging exactly how big the pilot had to be. 15100 ml of hydrogen and the $3 target 38:16 A founder growing solid green hydrogen from microalgae at 100 ml scale asks how to set the next milestone; find the adviser who knows what scale earns financing, and aim for $3 a kilogram.
Takeaways

Ideas to carry out of this hour

01

A patent is a licence to litigate, not an asset by itself

Founders treat IP as a synonym for patents, but the second bucket — know-how you deliberately chose not to file — is often the more valuable one, and the choice between them is a business decision rather than a legal one. His warning about know-how is that it leaves on two legs: the day people walk out, so does the unpatented knowledge. In deep science, where by definition the work is new and different, he thinks holding IP matters more than it does in any other kind of innovation.

02

Deep science satisfies a need, and needs are not wants

Platform IP that spans three or four verticals looks like abundance and is actually a trap, because a startup that spreads across verticals runs out of cash before any of them convert. The reason nothing converts quickly is that genuinely new technology answers a need the buyer has not yet felt as a want — in his Texan phrasing, if it ain't broke, don't fix it. So pick the vertical that is easiest to penetrate, take the cash flow, and attack the rest from a position of revenue; a geothermal company he advises led with energy storage rather than carbon-free power for exactly that reason, and it worked.

03

Divisionals turn one filing into four licensable assets

Patent structure should follow business strategy. In the US, continuations let you revise the claim structure in the window before allowance, using the three intervening years in which you learn why the invention actually works and which market you missed — the tactic the drug industry leans on hardest. In India and most other jurisdictions the equivalent is the divisional, splitting one application into several patents that each target a vertical. That matters because no startup can serve four segments alone: handing a licensee its own divisional patent carries far more perceived value than a field-of-use carve-out on your master patent, and licence income is cash flow you did not have to raise.

04

Let two established players copy you — they make the market

When incumbents began copying his startup's disruptive technology, his board went ballistic and he told them not to worry. A large established player imitating a startup is free validation: buyers who doubted the young company conclude that if the incumbent is doing it, the category must be real, and the originator can still keep the lead — which, he says, they did. His rule of three, which he credits to C.K. Prahalad, sets the ceiling: two competitors, maybe three, is fine in a big market; ten is not.

05

Sell insurance against the failure you know won't happen

New technology fails often at first, and customers who have watched it fail retain belief but lose trust, which is the harder thing to win back. His answer was to offer indemnity: if the product failed he would cover replacement and all ancillary costs, and in exchange the customer paid a premium priced off their own expectation of failure. For a year and a half those premiums ran to a very high double-digit percent of EBIT — until customers realised they were insuring something that was not breaking, dropped the cover and bought more product instead. He names the underlying idea as information asymmetry, from the Nobel work of Akerlof and Spence.

06

When you fail, go total open book

The counterpart to the insurance trick is what you do when something genuinely breaks: open the books completely, work through the causes with the client, hide nothing. That is where brand equity is manufactured, and brand equity is what buys a company time — he watched a startup acquired by a large firm suffer a reliability collapse and keep its customers anyway, because the market was willing to tolerate failure from a name it trusted while the product came back up.

07

Don't ask an incumbent to scrap a half-amortised plant

Deep tech usually displaces something that already exists, and nobody rips out a high-capex asset early. More than half the world's iron-making plants are amortised for only about half their life, so the entry strategy for carbon-free steel is to make the incumbent's existing process carbon free inside its current context, and replace it later. The complement is a strategic partner — a large future customer that takes equity early, absorbs your first output and has skin in the game — capped under 20% so it cannot steer the company away from the independent path the founders wanted.

08

The expertise you can't hire, you rent in equity

Founding teams almost never contain someone who has personally done the next stage of scale-up, so assemble a small advisory board — about three people, chosen to plug named gaps, paid in equity because a startup has no cash. His own contribution to a prominent geothermal company was what he calls the nose: judging with confidence exactly how big the pilot needed to be, not smaller, not bigger, so that it could still scale 30x afterwards. The corollary for a founder is to work out the specific hurdle first — whether a carbon price belongs in your EBIT, say — and then buy that specific expert.

The numbers, drawn

What the episode measures

Every figure below was said on air — timestamps included, caveats kept.

Conversation share

portion of the hour spent on each theme
Deep tech & hardware · 24%Regulation & policy · 20%Sales, GTM & growth · 16%Climate & energy · 12%Product strategy · 10%Fundraising · 10%
Deep tech & hardware24%
Regulation & policy20%
Sales, GTM & growth16%
Climate & energy12%
Product strategy10%
Fundraising10%
Computed from the chapter map of this episode.

Solid versus gaseous green hydrogen, per kg

per kg, as quoted on air
Solid, from microalg200Gaseous green hydrog700
Figures as stated by the founder asking the question, at a lab scale of 100 ml; the currency was never specified on air, though the guest's counter-target of $3 a kilogram suggests these are rupee prices.▶ 38:34

Clearing the defence quality bar

months
Typical clearance30Evoride's clearance9
As told by Rahul of Evoride Motors: defence quality approval usually takes close to two and a half years and his team cleared it in nine, then had to demonstrate seven helicopter engine starts against a six-start requirement in sub-zero cold at a Leh base.▶ 28:13
Worth keeping

Lines that stay

In the end a patent is only a licence to litigate. That's all it is.

— Vikram ▶ 3:06

Know-how is intellectual property that you chose not to patent — and the easiest way you lose it is on two legs, when people leave.

— Vikram ▶ 3:25

If you're a startup and an established player copies you, it's tremendous — because they make a market for you.

— Vikram ▶ 13:00

So what I did was, I offered them insurance. I said if we fail, we will cover all the costs of replacement and all the ancillary costs you incurred by our failure — and you will pay me an insurance premium.

— Vikram ▶ 24:49

When you have failures, open book. Total open book. Work with the client in figuring out what the reasons were. Don't hide anything. That trust builds you huge brand equity.

— Vikram ▶ 26:56
Clips that travel

Short on time? Start here

Deep-science founders about to file their first patent

Two buckets, and the one that walks out

Patents versus know-how, the licence-to-litigate line, and why the first vertical you pick is a cash-flow decision rather than a technical one.

2:36 → 5:49 · 3 min ▶ Watch clip
Founders in hazardous or safety-critical categories

Handing your IP to a competitor

The hypothetical biohazard case for actively helping a sloppier rival — because the leader of a shut-down market leads nothing.

9:29 → 11:57 · 2 min ▶ Watch clip
Platform-technology teams with four markets and one team

Continuations, divisionals and licence income

The clearest ten minutes on structuring patents as business assets: US continuations, Indian divisionals, and why a divisional licenses better than a field-of-use clause.

17:05 → 21:31 · 4 min ▶ Watch clip
Anyone selling to a customer who has watched them fail

Selling insurance against your own failure

The information-asymmetry play that briefly made premiums a high double-digit share of EBIT — followed by the open-book rule for when you really do break something.

23:27 → 27:26 · 4 min ▶ Watch clip
Hardware founders chasing defence and government buyers

Seven engine starts when six were asked

Evoride's nine-month clearance sprint and the cold-weather demo that converted a disbelieving Leh base — proof beats paperwork.

27:26 → 30:05 · 3 min ▶ Watch clip
Glossary

The jargon, unpacked

Know-how
Intellectual property you deliberately chose not to patent, kept as an internal secret — and, in his phrase, the kind that walks out of the building on two legs when people leave.
Continuation
A US follow-on filing made after allowance is offered but before the patent issues, adding claims off the original specification once you understand the invention and its markets better.
Divisional
Splitting one patent application into several separate patents, each aimed at a different market vertical, so each can be licensed in its own right — the route available in India and most countries.
Composition-of-matter claim
A patent claim on the substance itself rather than its use; hard to win in the biochemical space, which is why he pushes founders towards broad application claims instead.
Field of use
A licence restricted to a defined application of a single patent — legally workable but, he argues, perceived as far less valuable than handing the licensee a divisional patent of its own.
PCT (Patent Cooperation Treaty)
The international arrangement under which patent filings from different countries are recognised and handled by common rules; still holding, he says, despite rising nationalism.
Information asymmetry
The economics of one side of a deal knowing more than the other — Nobel-winning work by George Akerlof and Michael Spence, and the basis of his insurance-premium play.
Strategic partner
A large would-be customer that takes equity early and absorbs your first output; pure gold for an unproven deep-tech company, provided its stake stays under 20%.
Connections

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