Form 28 — Evidence to Claim the Status of a Startup or Small Entity
Form 28 is the evidence an applicant files to claim startup or small entity status for the purpose of fees.
What Form 28 is for
Indian patent fees are tiered. Natural persons, startups, small entities and educational institutions pay at a lower rate than other applicants, and the difference across the life of an application is substantial. Section 142 provides for fees, and Rule 7 deals with how they are paid and how a claim to a particular category is supported. Form 28 is the evidence that supports a claim to startup or small entity status.
The form does not itself confer the status. It is the vehicle for producing the material that shows the applicant falls within the definition, such as a startup recognition certificate issued under the relevant government scheme, or documents evidencing that an enterprise falls within the small entity thresholds. The definitions themselves live in the Rules and are read with the schemes and legislation they refer to, and they have been amended, so the current text governs.
Two points catch applicants out. First, where an application has joint applicants, the reduced rate depends on the position of all of them, so adding a large corporate co-applicant changes the fee position. Second, the status is not permanent. If the applicant ceases to be a startup or a small entity, the Rules deal with the consequences for fees already paid at the lower rate, and the difference may become payable. Download the current Form 28 from the Indian Patent Office before filing.
Who files it, and when
An applicant claiming startup or small entity status files it. That includes recognised startups, small enterprises within the thresholds the Rules adopt, and applicants who are entitled to the reduced rate under the current definitions. Where there are joint applicants, all of them must qualify for the reduced rate to apply. Foreign entities may qualify where they satisfy the definition the Rules use, and the current text should be checked because this has been the subject of amendment.
It is filed with the first payment of a fee at the reduced rate, which is usually at the time of filing the application. It is also relevant later, whenever a fee is paid at the reduced rate on the same application, since the status must still hold. If the applicant's status changes during the life of the application, the Rules address what happens to fees, so the change should be dealt with when it occurs rather than at the next fee event. There is no separate periodic filing requirement.
How it is filed
- Check the current definitions in the Rules to confirm the applicant falls within the startup or small entity category.
- Obtain the supporting document, such as a recognition certificate or the records that evidence the enterprise thresholds.
- Check the position of every joint applicant, since the reduced rate depends on all of them qualifying.
- Complete the current Form 28 and attach the evidence.
- File it with the application, or with the first fee payment made at the reduced rate.
- Keep the evidence current, and review the status before each later fee payment on the same application.
- Deal with any change of status promptly, including on an assignment to a larger entity.
What the form asks for
- The application number, or a statement that the form accompanies a new application.
- The name and details of the applicant claiming the status.
- The category claimed, whether startup, small entity or another reduced-fee category.
- The supporting evidence, such as a recognition certificate or documents evidencing the enterprise thresholds.
- The position of every joint applicant on the same application.
- A declaration by the applicant and the signature of the applicant or authorised agent.
Described in general terms. Form contents are prescribed in the Second Schedule and change — download the current version from the Patent Office rather than working from any summary, including this one.
Common mistakes with Form 28
- Claiming the reduced rate on the strength of a self-description rather than the evidence the Rules require.
- Ignoring a joint applicant that does not qualify, which takes the whole application out of the reduced rate.
- Continuing to pay at the reduced rate after the applicant has grown beyond the definition or has been acquired.
- Assigning an application to a large company without addressing the fee consequences, which the Rules provide for.
- Relying on an expired recognition certificate, when the status has to hold at the time the fee is paid.
What happens if it goes wrong
If the status is claimed without proper evidence, the office raises a requirement and the fee position has to be corrected. If the applicant ceases to qualify and continues to pay at the reduced rate, the Rules provide for the difference in fees to be paid, and the shortfall can surface at an inconvenient point such as during due diligence or at grant. If no claim is made at all when the applicant does qualify, nothing is lost legally, but the applicant pays more than it needed to across the whole life of the application.
An acquisition changes the fee position in Jaipur
This is a simplified illustration. Chittor Analytics Pvt Ltd of Jaipur files an application for a water quality sensing method and claims startup status, filing Form 28 with its recognition certificate. It pays the filing fee, the publication-related fees and the examination fee at the reduced rate over the following two years. In the third year the company is acquired by a large instrumentation group, and the application is assigned to the acquirer as part of the transaction. The team preparing the change of applicant filing raises the fee point, because the acquirer does not fall within any reduced-fee category. Rather than continue paying at the old rate, the company checks the current Rule on what happens when an applicant ceases to be a startup or small entity, and pays the difference as the Rules require. The alternative would have left an unresolved fee issue on the file.
Simplified illustration only. Actual outcomes depend on the facts.
Questions about Form 28
Who qualifies as a startup or small entity for patent fees?
The definitions are set out in the Patents Rules and read with the government scheme and legislation they refer to, and both have been amended. In broad terms a startup is an entity recognised under the applicable scheme, and a small entity is an enterprise within the thresholds the Rules adopt. Because the definitions, including their application to foreign entities and the periods for which recognition holds, have changed over time, the current text of the Rules should be checked before the reduced rate is claimed.
What happens if my startup grows during prosecution?
The Rules address the position where an applicant ceases to be a startup or a small entity, including the consequences for fees. The practical effect is that the reduced rate depends on the status holding at the time each fee is paid, so growth beyond the definition, or acquisition by a larger entity, changes the position going forward and can make a difference payable. The change should be dealt with when it happens rather than discovered at grant or during a financing diligence exercise.
Does the reduced fee apply if one of several applicants is a large company?
No. Where an application has joint applicants, the reduced rate depends on all of them qualifying. Adding a large corporate co-applicant, whether at filing or later through an assignment of a share, takes the application out of the reduced-fee category. This catches out collaborations between a startup and an established manufacturer, and it is worth checking at the point the collaboration is documented rather than at the point the next fee falls due.
Can I claim the status after filing at the ordinary rate?
The evidence is filed with the first payment made at the reduced rate, so the ordinary course is to claim at filing. Where an applicant who qualified paid at the higher rate and wants the reduced rate for later fees, the position depends on the current Rules and on what is being sought, since claiming a category for future payments is different from seeking any adjustment of fees already paid. Check the current text or ask an agent rather than assuming an adjustment is available.
Claiming startup or small entity patent fees?
MYCrave Consultancy & Services helps applicants evidence their category and manage a change of status.