It is an indisputable fact that IT sector and software industry are the biggest
contributors to India’s economic growth in recent times. The predominant role of
these two core job providing sectors cannot be ignored in making India a rapidly
developing country. Innovation is the backbone for IT and software sectors.
However, a very low amount of innovation, happening in these industries are
converted into protected inventions. The one big question Indian IT industry
faces is, are software inventions patentable in India?
What does the law say?
The section 3 of the Indian patent act 1970 enumerates a list of inventions
which are non-patentable. The point (k) in section 3 of the act states that “a
mathematical or business method or a computer program per se or algorithms;” is
not an invention.
All the misconceptions
As per the amateur understanding of the above clause by any inventor, new
inventions related to software will be termed ineligible to be patented and
hence new innovations in the software field cannot be protected as patented
On a brighter note, such perception deviates largely from reality. The revised
guideline does not put a total ban upon software inventions in India. Rather,
the phrase software ‘per se’ in section 3(k) means that software, in isolation,
is not patentable. What is to be noted here that software usually cannot perform
any task alone, but it makes a specific set of hardware to execute the task. Any
software related invention shall be seen as the combination of program and
specific hardware, necessary to perform the intended task.
Thus, the innovative software can be patented in the form of the ‘computer
related inventions’, in combination with hardware. My firm has recently secured
a patent for our client wherein his invention was about a delicate program which
helps in reducing processing error for a preset timeframe. Here, a timer and
processing components are also important to execute the intended task. Thus, in
the patent draft, we have not only focused on program part only but the whole
arrangement to execute the intended task.
The need for modification of the original rule
The rules in the guidelines that existed earlier, issued by the Indian
Government on August 21, 2015, largely broadened the scope of software patent
applications by permitting applications for any new software in combination with
hardware that is not new. There was a need to modify the rule due to the fear
that earlier guidelines would greatly benefit multinational corporations, who
have funds and means to obtain expensive patents and manage patent litigations.
That situation stopped SMEs and startups to a great extent from applying for
patent protection. Unawareness for India IP ecosystem and lack in help were also
the reasons behind low patent applications from startups and small companies,
despite the fact that India is a global powerhouse in developing software and
Under the revised regulations, unless the new software is combined with a unique
device, it cannot be patented. This addition in the previous scope of
patentability for software inventions is now helping preserve innovation in the
Software invention is now patented in India?
Contrary to the misconception, the answer to the above question is in positive.
An inventor can certainly get a software invention patented in India by ensuring
that the invention lies in both, software as well as the hardware (which helps
in executing the intended task), along with fulfilling the other general
criteria of patentability.
In conclusion, this article aims to clear the obscurity around patentability of
software inventions. The revised guidelines by the Indian government aim to
promote innovation and encouraging the patent ecosystem. Keeping in view the
development of small startups and small companies, the recent amendments in the
guidelines are laudable. So, yes, Software can be protected by patents with the
right approach and under correct guidance of a patent professional.