The Indian Patent Act explicitly provides what kinds of software programs are patentable and non-patentable. Basically, according to Section 2(ffc) of the Copyright Act, 1957, computer software means 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.
So, according to Section 3(k) of the Indian Patent Act, computer software is only patentable if it demonstrates novelty, inventive step, industrial applicability, sufficiency of disclosure, clarity, and definitiveness.
Section 3(k) excludes computer programs per se from the ambit of patentability. Here, per se simply means considered alone, without having industrial application or technical effect. Hence, in order to qualify as patentable, computer software must meet the following requirements:
- Novelty Check
- Inventive Step
- Industrial applicability
- Sufficiency of Disclosure
1. NOVELTY CHECK
Novelty is one of the most basic requirements of patentability which assures that an invention is not previously disclosed to the public. For Computer-Related Inventions (CRIs), including computer programs/software, the measure of novelty is assessed in the same strict measures as all other technological fields. The Indian Patent Office evaluates whether or not the claimed invention formed part of the prior art (the state of knowledge) before the filing date or priority date.
Prior Art Search
The novelty check begins with a thorough search of the prior art, which will involve the examiners reviewing the following:
- Patent databases (e.g., INPADOC, Patentscope, USPTO, EPO)
- Non-patent literature (e.g., research articles, technical journals, conference proceedings).
- Public disclosures (e.g., software releases, whitepapers, open-source repositories).
In the case, Telefonktiebolaget LM Ericsson vs. Lava International Ltd. (2024), the Delhi High Court laid down a Seven Stambhas Approach in order to determine the novelty of the Patents:
- Understanding Patent Claims
The evaluation process begins by defining the patent claims, which outline the parameters of the invention. Within software clients it will be exploring the technical attributes inclusive of, but not limited to, algorithms, data structures, or exterior processes relating to hardware.
- Identifying Prior Art
Examiners will look for prior art documents (i.e. patents, patents, etc.) that address the claimed invention and were publicly available, and therefore prior art, before the patent application was submitted.
- Prior Art Analysis
The examiner then closely compares the invention’s claims against the prior art. In the case of software, these considerations include, but are not limited to:
- Specific instances of code logic.
- Technical implementation.
- Output and functionalities, such as enhanced speed, etc.
Explicit v. Implicit Disclosure
Prior art can be directly addressing the invention, explicit (e.g., a identical algorithm) or suggested, implicit (e.g., a similar method that is hardly distinguishable).
- Material Difference
Even if an element of the prior art exists, the invention may still qualify as new because it produced material differences (e.g., a new technical effect, invention was done in an unconventional way, etc.).
- Novelty of the Claims
The evaluation should not be based on the elements of the invention. For a software-hardware combination, even if all of the components of the application exist separately, the examiner will look closely at the combination of both as a claim of novelty.
- Documenting the Findings
The examiner must record and note down the references to prior art and explain how the invention differs.
2. INVENTIVE STEP
The criterion of inventive step or non-obviousness is an essential aspect of patentability, including patenting computer-related inventions (CRIs). The Indian Patents Act, under Section 2(1)(ja), states that an inventive step is present if the invention is an advancement in some respect in relation to existing knowledge, has economic significance, or both, and is not obvious to a person skilled in the relevant art. Evaluating Non-obviousness of Software Patents The evaluation process is a five-step test based on cases, mainly from the case Biswanath Prasad Radhey Shyam vs Hindustan Metal Industries Ltd (1982). The Supreme Court indicated that obviousness must be determined in a rigorous and objective fashion.
The steps are:
- Determine the Skilled Person: The “person skilled in the art” is a hypothetical person, generally a software engineer of ordinary skill or expertise, and is not a brilliant inventor.
- Common General Knowledge: The inquiry determines what was in the public domain in the area of expertise at the time of filing.
- Inventive Concept: The technical aspect of the invention must be identified and separated from the known art.
- Comparison between Differences and Known Art: Look at the invention side-by-side with known art.
- Obviously Determining: The ultimate question is whether any differences between the invention and the known art would have been obvious to the skilled worker without hindsight.
3. INDUSTRIAL APPLICABILITY
Industrial applicability is a key threshold in patent law to ensure only inventions having practical utility receive patent protection. Accordingly, in the case of computer programs and software-related inventions, the need for industrial applicability requires careful consideration so as not to confuse real technological benefits for the industry with the application of abstract theoretical ideas.
Definition and Statutory Basis
Section 2(1)(ac) of the Indian Patents Act defines industrial applicability as the ability of an invention to be made or used in any industry. This provision clearly establishes that inventions that may be patented need to show actual, practical utility, not just theoretical utility. The definition is broad by design—”any type” of industry includes manufacturing, services, agriculture, and new technology.
Application to Software Inventions
When reviewing computer programs, industrial applicability is assessed largely in terms of whether the software resolves technical issues in the world while producing verifiable results. The invention must not simply be code that has an ability to run but must show particular applicability to industry. For example, a machine learning algorithm developed to support predictive maintenance in a manufacturing setting very much fits this standard of applicability, while the exact same user-friendly math formula to explain observations in number theory would likely fail here.
Requirements for Practical Implementation
The patent application must provide strong evidence of where the software invention may be applied in industry. This includes description of:
- Concrete field of industry (e.g., medical diagnostics, supply chain optimization)
- Conditions and performance standards
- Integration with existing systems or hardware
- Clear improvement over existing solutions
What is excluded as Purely Abstract Inventions
The patent office will reject patent applications for software inventions that simply remain a notion or theoretical concept, with no description of how the software invention will be implemented practically in industry. The typical common error for patent applications is to describe an algorithm simply and fail to explain how the algorithm solves a real technical problem for a defined category of industry. The specification should demonstrate how the algorithm moves from a pure mathematical idea to applied engineering solution.
Illustrative Examples
The utility in the field of industry is evident with a software invention that is an algorithm used to control industrial robotics, or to optimize network traffic flows, or to process data from medical imaging. Each of these software inventions provides tangible benefit to manufacturing, telecommunications and healthcare industries respectively. As an example of an application that would not demonstrate utility in industry, a simple data compression algorithm (without describing potential implementation of product or service) would not pass the utility requirement.
4. SUFFICIENCY OF DISCLOSURE
The sufficiency of disclosure requirement guarantees technical detail in patent specifications, which will enable an engineer or a programmer to duplicate the invention without undue experimentation. This foundational principle protects the all-important quid pro quo of the patenting system. In the software context, the obligation of disclosure exceeds what is required for many inventions. The specification should describe the “what” and “how” of the invention, containing specific technical details. This description will include detailed algorithms, data structures, system designs, and the way the invention is implemented. Because of the inherent complexities of software related inventions, flow charts, pseudocode, or even actual code snippets may also be appropriate to ensure the complexity and details of the invention are properly captured in the specification.
Recent court rulings, including Caleb Suresh Motupalli vs. Controller (2025), have set a high bar, demonstrating the regulatory strictness applied to these areas. The court dismissed broad AI claims because the patent failed to disclose detail about the implementation of the claimed invention. The court added that broad concepts without an enabling technical disclosure did not meet enablement requirements. This case made it clear for patentees that a software patent will need to be disclosed with enough granularity that it discloses the details of:
- The specific implementation of the algorithm
- How data is processed
- How hardware and software would interact
- How the items would perform
- How it would be used in a unique situation
THE INTERACTION BETWEEN HARDWARE AND SOFTWARE AND “TECHNICAL EFFECT”
While stand-alone software or an algorithm itself does not constitute patentable subject matter, an invention where the implementation of a software program involves an interaction and produces a “technical effect” or “technical contribution” does engage in patentable subject matter. This point of distinction is fundamental in understanding whether the software interacts with the hardware to achieve a real improvement in the functional attributes of the hardware or an improvement to a technical problem, other than computational efficiency.
For example, a method that is fully represented in software and improves the security of a network by optimizing the data encryption/decryption algorithms executed in a processor has a technical effect. The outcome of executing the software is that the hardware (for example, a CPU, memory) behaves differently to provide a faster, more secure, round trip of data transmission, which can be measured, thereby establishing a “technical effect.” AI based algorithms that process real-time images in a camera system at a lower latency when compared to conventional cameras are also patentable subject matter, the idea being that the processing capability and operation of the hardware is improved, and they have greater operational capability. The measure is that the software has to convert the hardware to something improved like a digital media processor to compress efficiently, (the special purpose is referenced in the penultimate section.
The courts have made it clear that simply running software on common hardware (for example, the general-purpose computer) does not count unless there is a “further technical effect.” This could involve, say, improving an output control or optimizing control of a robotic arm, or improving a device’s signal reception in communication. Or it could be accessing a known software function physically attached to a communicative technology in real time. You then need to fully disclose the combination of hardware and software in the patent application, explaining how the software functions interactively with the hardware components (i.e., processors, sensors, etc.) to achieve the claimed technical outcome. For example, you will have claims describing the firmware that reduces access time to memory by some reorganization of the stored data structure, but you will describe the changes wrought to or by the hardware and its activities or functions.
Hence, presence of patentable subject matter is able to be determined when the software operated as an element of improved functionality in hardware in solution to a technical problem or demonstrated a degree of technical advancement. The guidelines and the court cases have reiterated that the invention must be considered in their totality; in discharge to the claim relating to the subject matter and not the format, in order to ensure that “computer programmes as such” do not inadvertently disallow genuine CRIs that may or do make a technical contribution.
Emerging technology endures the same scrutiny. A patent on blockchain needs fully formed consensus mechanisms and details on cryptographic techniques. A patent on AI/ML is required to disclose model architectures, training datasets, and hyperparameter configurations. The disclosure must be sufficient to reproduce, versus simply understand on a conceptual level. Patentees often fail to meet the requirement of the detail of disclosure expected of them. Software patents with claims that successfully register typically have:
- Diagrams with detailed systems
- A walk-through of the argument with examples
- Performance measures
- Circumstances where the software has been implemented
- Integration details
Using a rigorous disclosure standard not only serves as a gatekeeper against unattainable software patent claims but it also protects real innovations. Using applicants disclosing real innovations means that the public can garner valuable information about the new technology in return for the patent monopoly. As software continues to involve into more sophisticated uses, this acceptance to disclose the technical workings is going to become more and more accurate and detail-specific.
So, the question was: “is computer software patentable?”, yes, Computer software can be patented in India, but only if it meets the requirements under Section 3(k) of the Indian Patents Act and adheres to the guidelines set by the Controller General of Patents.
Author:
Busthanudeen Kodali
About the Author:
Busthanudeen Kodali, a final-year law student at the Faculty of Law, Delhi University, and a Patent Assistant Intern at Intellect Bastion.
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