It is all too easy to get into a rut, (a) telling clients that the way to figure out whether an entity is large or small is by counting the employees and (b) proceeding on the assumption that if a client was small in its previous patent application, then of course the client will likewise be small in its next patent application.
But an entity can be simultaneously large and small.
One the problems with working out whether an entity is large or small is that it is not just a matter of counting the employees. An applicant entity that on its face appears to be small can turn out to be large because it has assigned or promised to assign (or has licensed) the invention to an entity that is large. Worse yet, even if the licensee has fewer than 500 employees, if it has in turn sublicensed the invention to an entity that is large, then this renders the applicant entity large. The taint of “largeness” propagates back along the chain of licenses and sublicenses all the way back to the owner of the patent application.
But this renders the applicant entity large only for purposes of that particular licensed invention.
Which gets us to the main point of this post. If an entity has two pending patent applications, it could well be that the entity is large for purposes of the first application, and yet small for purposes of the second patent application. The situation depends crucially on things like whether one patent application has been licensed or not, and the size status of the licensee.