37CRF1.27(a)(2)では、中小企業(small business concern)に該当するかどうかは、13 CFR 121.801～121.805に規定されていると記載されています。
13 CFR 121.801～121.805の条文は、以下の列挙した通りです。
重要なのは、13 CFR 121.801であり、社員が５００人以下の会社であれば中小企業であるとして、半額免除の規定が受けられることが分かります。
年間の平均値が考えるそうです。Patent Barのテキストの書いてありました。条文には具体的な計算方法が記載されていないので、Small Business Administrationの見解なのだと思います。
37 § 1.27 Definition of small entities and establishing status as a small entity to permit payment of small entity fees; when a determination of entitlement to small entity status and notification of loss of entitlement to small entity status are required; fraud on the Office.
(a)(2) Small business concern. A small business concern, as used in paragraph (c) of this section, means any business concern that:
(i) Has not assigned, granted, conveyed, or licensed, and is under no obligation under contract or law to assign, grant, convey, or license, any rights in the invention to any person, concern, or organization which would not qualify for small entity status as a person, small business concern, or nonprofit organization; and
(ii) Meets the size standards set forth in 13 CFR 121.801 through 121.805 to be eligible for reduced patent fees. Questions related to standards for a small business concern may be directed to: Small Business Administration, Size Standards Staff, 409 Third Street, SW., Washington, DC 20416.
Sec. 121.801 May patent fees be reduced if a concern is small?
These sections apply to size status for the purpose of paying
reduced patent fees authorized by Pub. L. 97-247, 96 Stat. 317. The
eligibility requirements for independent inventors and nonprofit
organizations for the purpose of paying reduced patent fees are set
forth in regulations of the Patent and Trademark Office of the
Department of Commerce, 37 CFR 1.9, 1.27, 1.28.
Sec. 121.802 What size standards are applicable to reduced patent fees programs?
A concern eligible for reduced patent fees is one:
(a) Whose number of employees, including affiliates, does not exceed
500 persons; and
(b) Which has not assigned, granted, conveyed, or licensed (and is
under no obligation to do so) any rights in the invention to any person
who made it and could not be classified as an independent inventor, or
to any concern which would not qualify as a non-profit organization or a
small business concern under this section.
Sec. 121.803 Are formal size determinations binding on parties?
Size determinations by authorized SBA officials are formal actions,
based upon a specific patent application pursuant to the rules of the
Patent and Trademark Office, Department of Commerce, and are binding
upon the parties. Other SBA opinions provided to patent applicants or
others are only advisory, and are not binding or appealable.
Sec. 121.804 When does SBA determine the size status of a business concern?
Size status is determined as of the date of the patent applicant’s
written verification of size.
Sec. 121.805 May a business concern self-certify its size status?
(a) A concern verifies its size status with its submission of its
(b) Any attempt to establish small size status improperly
(fraudulently, through gross negligence, or otherwise) may result in
remedial action by the Patent and Trademark Office.
(c) In the absence of credible information indicating otherwise, the
Patent and Trademark Office may accept the verification by the concern
as a small business as true.
(d) Questions concerning the size verification are resolved
initially by the Patent and Trademark Office. If not verified as small,
the applicant may request a formal SBA size determination.
Size Eligibility Requirements for Compliance With Programs of Other