India: Considering Patentability Of Software

Last Updated: 14 January 2015
Article by Zoya Nafis

The legal scenario regarding the patentability of software-related inventions has changed dramatically over the last few decades. In today's era, the protection of technology and technological developments cannot be guaranteed by looking backwards. Country's economic development and innovation depends largely upon the digital environment as it has become one of the promising areas of producing wealth and generating economy.

Economists consider patent protection as a trade-off between the need to encourage innovation and the necessary evil of allowing temporary monopoly to the innovator who invests his labor and time in the invention. Although the patentability of software is unsettled till date, no one can deny the relevance of software in today's world. There are some who argue that software is so fundamental that our society should not allow anyone to own it to the exclusion of others. Some are satisfied in treating software as copyrightable literature, affording protection only to its expressive, but not its functional aspects. Some argue strongly that the patent system which has existed since late eighteenth century is outdated and cannot handle this new technology and that some are different, sui generis, form of protection should be created for software technology. Others argue that the current patent system is working fine and that it will adapt to this new technology, just as it has done many times before.

In many countries, the patentability of software remains uncertain and often involves manipulation of the patent claims. Patenting inventions pertaining to novel industrial processes, installations, or equipment that incorporate computer technology has never been seriously questioned. But if the novelty resides solely in the computer programs, difficulties can be expected unless the claims are couched in proper terms. If the invention is pure software then the task of preparing a set of acceptable claims, while still providing the full measure of protection for the invention, becomes formidable, if not impossible. Yet some of the greatest inventions of our times reside in the field of computer software.

As the overwhelming development, majority of countries have established patent systems, there is universal recognition that a system is needed to support and foster innovations in industry. When innovations are quickly emulated, the incentives for R&D are substantially diminished. Particularly benefited by patents are industries where large capital is required, such as the biotechnology. However, also benefited are fields' innovations are easy to reverse engineer or replicate, and trade secret protection is difficult. Consequently, software industries have real need of such protection.

What the World is doing

Most of the jurisprudence relating to software patents has originated from U.S., which is considered as the cradle of software patents. Beginning with the landmark decision of US Supreme Court in Diamond v. Diehr,1 in which the Court ordered the Patent office to grant a patent for an invention even though it involved the utilization of computer software, the US Supreme Court has traveled a long distance with regard to software patents.

Considering the position in the European Union, it is evident that software is patentable in EU, provided they make a technical effect. Though the European Parliament rejected the Computer Implemented Inventions Directive in July 2005, the position with regard to software patenting remains more or less the same in EU member states.2

U.S. Court recognition to software patents created a substantial divide in international patent law. Without regard to pragmatic considerations, U.S. courts so far have seen no reason under law to constrain the recognition of software patents. By contrast, Europe and Japan have both attempted to limit the negative social welfare implications of expanding patent recognition by legislatively prohibiting non-computer-implemented business method patents and imposing limitations on the patentability of software. The broad recognition of the patentability of all types of business methods by U.S. courts, including the recognition of non-technical or non-computer-implemented business methods, is the source of significant social welfare losses in the U.S., Europe and Japan's attempts to draw a line between high and low quality business method and software innovations better balance the need to stimulate innovation while preventing unnecessary anti-competitive or overly broad patent recognition. Furthermore, the lack of consistency and harmony among members of the Trilateral Patent System due to the U.S. recognition of business methods increase the costs of engaging in international business. After reviewing the current state of business method and patent system internationally, we conclude that the requirement of an inventive step found in Europe is superior to the U.S. approach. Although commentators have criticized the European approach for being opaque, the approach does a superior job of distinguishing between innovative and non-innovative-computer-implemented inventions. The U.S. approach does not promote efficiently and is extremely costly from social-welfare perspective. For these reasons, Europe and Japan are unlikely to follow U.S. lead in the treatment of business method and software patents.

While the European and Japanese approaches are not optimal, they come much closer to achieving optimality than does the U.S. approach. Therefore, it follows that the best possibility for international harmonization of business method and software patent law rests on reforming the U.S. Patent system in order to bring it into alignment with European Patent law. The U.S. adoption of an inventive step requirement for computer-implemented business method and software innovations and the creation of sui generis protection for non-computer-implemented business method would promote international harmonization while significantly increasing the efficiency of U.S. business method and software patent law. Less dramatic changes would also add to the efficiency of U.S. Patent law in this area. Strict enforcement of enablement and best mode disclosure requirements would reduce ambiguity and limit opportunistic behavior. Finally, creating a post grant third party opposition process would add an important error correcting mechanism that has proven effective in Europe and Japan. The reforms would significantly enhance the efficiency of U.S. business method and software patent law while achieving a higher level of international patent law harmonization.3

Indian Position

India is well known for its software industry which has grown incredibly in a short span of time. Today in the era of globalization, many top Multi-National Companies either do business in India or have research centers for promoting knowledge exchange and bringing in valuable foreign knowledge. Though India has done well in harmonizing patent law but software patent protection is weak and hence, there is a need for strong patent protection. But the drawbacks software patents should be considered carefully. Software Patents do not encourage innovation; rather they lock up key innovations and encourage large corporation monopoly. The Indian Government should seriously think about what its position on software patents should be. India could maintain the status quo; or could allow patents with strong safeguards against frivolous patent claims, and possibly with a greatly shortened life span.

Still, an invention shall not become unpatentable in India merely because it was implemented with software. Like the EU countries, in India also the gaining of patent protection for software depends more on the drafting skills of the Patent Engineer. If the claims are drafted in such a way as to reflect that the invention is not software per se, it shall qualify for patent protection.

In 2008, the Patent Office published a new 'Draft Manual of Patent Practice and Procedure' in which certain method claims for software inventions were allowed to be patented. This Draft, however was withdrawn from circulation, with Shri N.N. Prasad (then Joint Secretary of DIPP, the department administering the Patent Office) noting that the parts of the Manual on sections 3(d) and 3(k) had created a lot controversy, and were ultra vires the scope of the Manual, which in anyway could not override the Patent Act. The Draft Manual relied heavily on the interpretation of U.K. courts in regard to the patentability of software.

In India we still need to wait for the new guidelines by the patent office in regard to Software inventions as the earlier guidelines were opposed by software industries and the legislators. The present Patent Act by using the term 'Computer per se' has open way for software patent to some extent. The law still has to develop in this regard. India should catch up with the world in matters relating to software patents to avoid any back log as it suffered in many other cases. We can only wait and hope for a dramatic turn in this particular field.


1 450 U.S. 175 (1981), Diamond v. Diehr

2 Eloise Gratton, Should Patent Protection be Considered for Computer Software-Related Inventions;

3 Duncan M. Davidson, The Future Of Software Protection: Common Law & Uncommon Software;

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Zoya Nafis
In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.