Can a foreign entity be considered as a start-up for filing the request for expedited examination?

The Patent Rules define “Start-up” as an entity that satisfies the following criteria:

• has not been registered or incorporated for more than 5 years;
• has a turnover for any of the financial years of not more than Rs. 25 crores (approx 4.2 million US Dollars); and
• is working towards innovation, development of products and services driven by technology or intellectual property.

‘Entity’ means a private limited company (as defined in the Companies Act, 2013), or a registered partnership firm registered under section 59 of the Partnership Act, 1932 or a limited liability partnership under the Limited Liability Partnership Act, 2002. 8

Any entity that is formed by splitting up or reconstruction of a business already in existence will not be considered as a start-up.

‘Turnover’ means the aggregate value of the realisation of amount made from the sale, supply or distribution of goods or on account of services rendered, or both, by the company during a financial year.

Although no clarity has been provided by the Indian Patent Office as to whether or not a non-Indian company can be considered as a start-up, it appears from the definition of start-up provided in the Patent Rules that a non-Indian company may not be considered as a start-up.