Software Patentability in India

1A mathematical or business method or a computer program per se or algorithms is not patentable under the Patents Act. In India, patent protection is not afforded to business methods and computer programs though art 27 of the TRIPS Agreement does not exclude them from patentability. Computer programs are excluded from patent protection as they are protected as a literary work under the Copyright Act 1957. (See Copyright Act 1957, ss 2(o) and 13.) Though patent for a computer program per se is not patentable, a claim expressed as a computer arranged to produce a particular result, and computer programmes which have the effect of controlling computers to operate in a particular way may be the subject matter of a patent. (Badger Company Incorporated’s Application [1969] FSR 474, p 477, (1970) RPC 36.) (Burroughs Corpn’s Application [1973] FSR 439, p 450, (1974) RPC 147; International Business Machine Corpn’s Application [1980] FSR 564.) The prevailing view is that where the subject matter as claimed makes a technical contribution to the known art, the patentability should not be denied merely on the ground that a computer program was involved in its implementation. However, this leeway does not apply for business methods on which there is an absolute bar.

2In Microsoft Technology Licensing v Assistant Controller of Patents (2024) the Madras High Court, noting that “computer programme is not defined in the Patents Act”, concluded that the definition of “computer programme” in the Copyright Act 1957 “is applicable in the context of the Patents Act, including for appreciating what computer programme per se means.” (para 24)

Technical effect

3The test the later judgments apply was stated in Ferid Allani v Union of India (2019), where the Delhi High Court held that “The bar on patenting is in respect of ‘computer programs per se’” and “not all inventions based on computer programs”, so that “the effect that such programs produce including in digital and electronic products is crucial in determining the test of patentability” (para 10), and that “If the invention demonstrates a ’technical effect’ or a ’technical contribution’ it is patentable even though it may be based on a computer program” (para 11). In Microsoft Technology Licensing v Assistant Controller of Patents and Designs (Delhi, 15 May 2023) the same Court said it “would thus reinforce the views expressed in Ferid Allani (supra) concerning the meaning of the term ‘computer program per se’ in Section 3(k) of the Act”, and held that “If a computer-based invention provides a technical effect or contribution, it may still be patentable. The technical effect or contribution can be demonstrated by showing that the invention solves a technical problem, enhances a technical process, or has some other technical benefit.” (para 34) Of implementation on ordinary hardware it held that “Mere conclusion that Claims 1-28 are implemented on computer and are computer-executable instructions/ algorithms performed on a general-purpose computing device is not the correct approach for rejecting a patent application”, and that “If the subject matter is implemented on a general-purpose computer, but results in a technical effect that improves the computer system’s functionality and effectiveness, the claimed invention cannot be rejected on non-patentability as ‘computer program per se’.” (para 39)

4In Microsoft Technology Licensing v Assistant Controller of Patents and Designs (Delhi, 16 April 2024) the Delhi High Court put the requirement as a burden on the patentee: “in case of an invention involving computer programmes, to circumvent the limitations imposed by Section (k) of the Act, a patentee must demonstrate that the overall method and system disclosed in the patent application, upon implementation in a general-purpose computer, must contribute directly to a specific and credible technical effect or enhancement beyond mere general computing processes.” It added that the “inventive contribution of a patent should not only improve the functionality of the system but also achieve an innovative technical advantage that is clearly defined and distinct from ordinary operations expected of such systems.” (para 33) On the facts it held that “the integration of the described methods and techniques into a digital media processor, as detailed in Claims involving specific hardware components of data storage buffers and processors, transforms the capabilities of general-purpose computing hardware into a specialised apparatus capable of efficient and effective data compression, which it otherwise was not expected to be capable of. This transformation also meets the criteria of further technical effect as stated to be a requirement in Lava (supra)” (para 35).

Business methods

5In OpenTV v Controller of Patents and Designs (2023) the Delhi High Court held that “the exclusion in respect of business methods is an absolute one and is not restricted by the words ‘per se’ as in the case of computer programs.” and that “In the case of computer programs, the use of the phrase ‘per se’ in effect means that a program per se is not patentable but when the same exhibits a technical effect or an advancement, or a technical contribution, the invention could become patentable.” (para 67) Of the software used in the claimed system, it held that “it is not the computer program or the software which is the claimed invention, it is the method in which it is put into application for giving of a gift which is sought to be patented.” (para 68)

6In Telefonaktiebolaget LM Ericsson v Lava International (2024) the Delhi High Court held that “the inventions that are solely directed towards algorithms, mathematical methods, business methods or are computer programmes per se, would not satisfy the test of patentability and would consequently, not be inventions. However, an invention that merely incorporates algorithms, sets of instructions, mathematical or business methods within a method or system, and satisfies all the criteria for patentability, is not inherently non-patentable.” (para 69) It held that “if the subject matter is implemented on a general-purpose computer, but results in a further technical effect that improves the computer system’s functionality and effectiveness, the claimed invention cannot be rejected as non-patentable for being a ‘computer programme per se’.” (para 70) It found that “the technical advancement of the invention relies on algorithms at the heart of the solution” and that “IN'034 is liable to be revoked as it conforms to non-patentable subject matter in terms of Section 3(k) of the Patents Act.” (para 146)

7In Microsoft Technology Licensing the Madras High Court held that “if it is no more than ‘a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result’, it would be patent-ineligible; whereas, if it has an effect that transcends the above benchmark, it becomes patent-eligible.” (para 30) It held that “even when the claimed invention relates to a CRI, if it results in a technical effect that improves the system’s functioning and efficacy (effect on hardware), or provides a technical solution to a technical problem and is, therefore, not limited in its impact to a particular application or data set, it would surmount the exclusion under section 3(k) of the Patents Act.” (para 36)

Reliance on CRI guidelines

8In Ab Initio Technology v Assistant Controller of Patents (2024) the Delhi High Court said, “As stated in the 2017 CRI Guidelines, it is not the form but the underlying substance which has to be considered for the purposes of analyzing Section 3(k) of the Act.” (para 35) It observed that “the trend of the Courts, as evident from the decisions cited above in paragraph 31 is to give a restrictive interpretation to the exclusion in Section 3(k) of the Act, and adopt a more benevolent interpretation to what would amount to ’technical effect’.” (para 36) and that “Any processing input is given through a code/program which the hardware processes, providing an output. ... However, this is not how the Courts have interpreted the inclusion of ‘per se’ in this provision.” (para 37)

9In Kroll Information Assurance v Controller General of Patents, Designs and Trademarks (2025) the Delhi High Court held that “for a software or computer programme to qualify as an eligible subject matter under section 3(k) of the Act, it should be more than a mere sequence of instructions and should result in significant technical effect or advancement of the hardware.” (para 28) It held that “the invention claimed in the subject patent application is merely enabling a search within a peer-to-peer network. The function of search is being performed based on the keywords given by the user, which reflects conventional ‘computer programme’ behaviour. Therefore, it cannot be stated that the ‘computer programme’ is enhancing the functionality of the hardware.” (para 30) and that “the features claimed in Claims 1 to 7 fall under the category of ‘computer programme per se’, and Claims 8 to 10 fall under the category of ‘algorithms’.” (para 31)

10In Natera v Assistant Controller of Patents and Designs (2025) the Delhi High Court held that “if tools only consist of software-based tools, which utilize data for the purpose of diagnosis, they would have to be examined under Section 3(k) of the Act for further technical effect and for satisfying the conditions for patentability.” (para 79)

11In Ab Initio Technology v Controller of Patents (2025) the Madras High Court held that “under Indian law, patent applications in relation to a CRI, even de hors novel hardware or impact on the internal working thereof, would not be excluded under Section 3(k) if such CRI makes a technical contribution or has a technical effect.” It said that “Indian law, thus, does not adopt either the extreme position that every computer-related or computer-implemented invention makes a technical contribution or the exacting standard adopted by the UK courts requiring a direct and transformative impact on the internal working of the computer or outside the computer system. In Microsoft MHC, I had conflated one of the AT&T signposts, as correctly critiqued in Ramanujan’s Patent Law. On revisiting the subject, I find that the Indian approach is substantially in line with the EPO Board’s jurisprudence but not with that of courts in the UK.” (para 47) It added: “Given the consistent approach of courts in India and the incorporation of these principles in the CRI Guidelines 2025, departure therefrom is not warranted in the interest of administrative ease. I recognise that this entails a tricky case-by-case analysis of whether there is a technical as opposed to non-technical contribution. Even so, it is a price worth paying to strike an appropriate balance.” (para 48)