Patent Software in India: Legal Position of Computer Related Inventions (CRIs)

• tathya
• Business Law
• January 6, 2026

1. Introduction

The rapid evolution of artificial intelligence (AI), blockchain, machine learning, quantum computing, and SaaS technologies has reshaped the global innovation landscape. With software now forming the backbone of modern industries, the question arises:

• Can software-based innovations be patented under Indian law?

The answer is complex. Indian patent law, specifically Section 3(k) of the Patents Act, 1970, explicitly excludes “a mathematical or business method or a computer programme per se or algorithms” from patentability. However, jurisprudence and the Computer Related Inventions (CRI) Guidelines issued by the Indian Patent Office have clarified that not all software innovations are barred. Patentability depends on demonstrating a technical contribution or technical effect that transcends mere code or business schemes.

2. The Legal Framework

2.1 Statutory Provisions

• Section 2(1)(j), Patents Act, 1970: Defines “invention” as a new product or process involving an inventive step and capable of industrial application.
• Section 2(1)(ja): Defines “inventive step” as a feature involving a technical advance over prior art or economic significance, making the invention non-obvious.
• Section 3(k): Excludes mathematical methods, business methods, computer programmes per se, and algorithms.

The suffix per se was inserted to clarify that computer programmes coupled with technical applications may still qualify for protection, even if the programme itself is not patentable. This intent was recorded in the Joint Parliamentary Committee Report of 2001.

3. Judicial Interpretation

Indian courts have shaped CRI jurisprudence by focusing on “technical effect” and “technical contribution” tests. Key cases include:

• Ferid Allani v. Union of India (Delhi High Court, 2019)
  The Court emphasized that patent offices worldwide assess CRIs on whether the invention demonstrates a technical effect or technical contribution. If so, even a computer programme-based invention may be patentable.
• Microsoft Technology Licensing v. Assistant Controller of Patents (Delhi High Court, 2023)
  The Court held that solutions extending beyond user interface design, such as authentication protocols involving cookies and two-factor authentication, produce a technical effect central to computer and network technology.
• Opentv Inc. v. Controller of Patents (Delhi High Court, 2023)
  Clarified that in India, unlike Europe, the exclusion on business methods is absolute, as “per se” qualifies only computer programmes, not business methods.
• Raytheon Co. v. Controller General of Patents (Delhi High Court, 2023)
  The Court rejected the Patent Office’s requirement of “novel hardware,” holding that technical contribution alone is sufficient and that demanding new hardware “lacks any basis in law.”
• Ab Initio Technology LLC v. Assistant Controller of Patents (Delhi High Court, 2024)
  Stated that technical effect must go beyond the user interface — for example, an input mechanism that enables faster computation by a processor.

These decisions collectively indicate a shift from rigid exclusion to a functionality-based analysis.

4. What Cannot Be Patented

The following remain non-patentable under Section 3(k):

• Pure mathematical methods (e.g., solving equations without technical application).
• Business methods (e.g., financial schemes, pricing algorithms, loyalty programmes).
• Abstract algorithms, unless tied to a technical outcome.
• Computer programmes per se, i.e., without technical application or industrial effect.

5. What May Be Patentable

Patentability emerges where inventions demonstrate technical application and produce tangible improvements. Examples include:

• AI systems improving diagnostic accuracy in medical imaging.
• Blockchain protocols enhancing cryptographic security of financial transactions.
• Robotic control systems where software directly governs real-world hardware.
• Data compression algorithms reducing bandwidth/storage requirements in communications.

The guiding question remains:
Does the invention provide a concrete technical solution to a technical problem?

6. Practical Considerations for Startups

1. Draft Precisely – Claims must articulate how the invention functions technically, not just what it does.
2. Avoid Business Dressing – Patent examiners are alert to business models disguised as technical claims.
3. Highlight Technical Effect – Demonstrate measurable improvements (e.g., faster processing, higher security, reduced resource use).
4. Align Globally – If international filings are contemplated (PCT, USPTO, EPO), align claims with broader standards.
5. Work with Counsel Early – Early engagement with IP counsel ensures claims are positioned to meet the CRI Guidelines and recent jurisprudence.

7. Conclusion

The Indian position on software patents is not one of outright prohibition but of measured eligibility. The CRI Guidelines and judicial precedents stress that the substance of the invention is decisive. Where an invention delivers a technical solution, enhances system performance, or improves technological processes, it may be patentable notwithstanding its software foundation.

For startups and technology enterprises, this underscores the importance of strategic patent drafting. In the current ecosystem, patents are not only shields against competitors but also critical assets for investment, valuation, and global expansion.

In short:
🔹 Technical effect opens the door to protection.
🔹 Business logic disguised as code will be barred.

References

1. Patents Act, 1970 (as amended).
2. CRI Guidelines, Controller General of Patents, Designs & Trade Marks (CGPDTM).
3. Ferid Allani v. Union of India, W.P.(C) 7/2014, Delhi High Court, 12 Dec 2019.
4. Microsoft Technology Licensing v. Assistant Controller of Patents, C.A. (COMM.IPD-PAT) 29/2022, Delhi High Court, 15 May 2023.
5. Opentv Inc. v. Controller of Patents, C.A. (COMM.IPD-PAT) 14/2021, Delhi High Court, 11 May 2023.
6. Raytheon Co. v. Controller General of Patents, C.A. (COMM.IPD-PAT) 121/2022, Delhi High Court, 15 Sept 2023.
7. Ab Initio Technology LLC v. Assistant Controller of Patents, C.A. (COMM.IPD-PAT) 26/2021, Delhi High Court, 30 July 2024.