A patent application can be filed either alone or jointly, by any person claiming to be the true and first inventor of the invention, or by the assignee of such person, or the legal representative of a deceased person who immediately before their death was entitled to make such an application.
Applicants can be individuals (i.e., natural persons), start-ups, small entities, or large entities, either alone or in combination. Start-ups and small entities ordinarily require certification or registration as such from the Government of India. The requirements for foreign entities are slightly different, as discussed in the following paragraphs.
Start-ups, like other categories of applicants, are offered a number of privileges when filing for patents. Under the Start-Ups Intellectual Property Protection (SIPP) scheme managed by the Department for Promotion of Industry and Internal Trade (DPIIT) in the Government of India, start-ups are eligible for an 80% rebate in patent filing fees. Start-ups are also permitted to expedite the examination of their patent applications in order to reduce the time that is generally taken in granting patents. Since SIPP came about, as of November 2020, start-ups have filed 5,020 patent applications, out of which 1,170 applications sought expedited examination. Of these, 884 applications have been examined and 459 patents granted.
The requirements to be considered as a start-up are as follows:
|Indian Entity||Foreign Entity|
|Incorporated or registered for not more than ten years.||Incorporated or registered for not more than ten years, duly documented (A notarized or certified copy of the incorporation certificate, in original).|
|Annual turnover under INR 100 crores (~USD 14.5 million, at 2021 rates) for the financial years since incorporation or registration.||Annual turnover under INR 100 crores (~USD 14.5 million, at 2021 rates) for the financial years since incorporation or registration, duly documented (e.g., financial documents or accountant certificate (on the letter head of the accountant who will sign the document).
|A brief write-up of the company in either word or a pdf format.||A brief write-up of the company in either word or a pdf format.|
|Working towards innovation, development or improvement of products or processes or services, or a scalable business model with a high potential of employment generation or wealth creation.||A self-declaration that the applicant is a start-up.|
|Certificate of recognition as a start-up from the Department for Promotion of Industry and Internal Trade (DPIIT).|
|Incorporated as a Private Limited Company, a Registered Partnership Firm or a Limited Liability Partnership.|
|Not formed by splitting up or reconstruction of a business already in existence.|
DPIIT Certificate of Recognition as a Start-up
DPIIT has granted certificates of recognition as start-ups to 57,360 entities, as on 18 October 2021,1 of which over 16,000 start-ups have been recognized in 2020-2021 alone.2
In order to be recognised as a start-up, the following documents must be submitted to the DPIIT:
- a) Incorporation or registration certificate;
- b) Details of the director(s);
- c) Proof of concept like a pitch deck/website link/video (in case of a validation/ early traction/scaling stage start-up). If the entity is still at the idea stage, then the proof of concept may be submitted at a later stage as well;
- d) Patent and trademark details (optional); and
- e) Permanent Account Number (PAN)
The applicant needs to access the Start-up India Recognition portal3 to register with Start-up India in order to get the DPIIT certificate of recognition for start-ups. Once the application is examined and approved, the DPIIT certificate is issued , and a unique recognition number is provided to the start-up.
A small entity patent applicant in India is an entity whose investment in plant and machinery or equipment does not exceed INR 50 crores (~USD 6.8 million, at 2021 rates) and turnover does not exceed INR 250 crores (~USD 34 million, at 2021 rates). Small entities are also permitted to file for expedited examination, like start-ups.
For an Indian entity to claim small entity status in India, evidence of registration under the Micro, Small and Medium Enterprises Act, 2006 is required.
For a foreign entity, any documentary evidence that shows that the company fulfils the criteria i.e., the investment in plant and machinery or equipment by the entity does not exceed ~USD 6.8 million and turnover does not exceed ~USD 34 million, is required. Examples of such documentary evidence include annual reports or accountant’s certificates. A declaration that the applicant is a small entity may also be submitted.