India's patent law does not define or use the term
"software," but it does say that "a mathematical or
business method or a computer programme per se or
algorithms" are excluded from patentability, as is "a
presentation of information." However, during the past year,
the Patent Office began to interpret this exclusion narrowly by
stating that software could be patentable if it is applicable to a
The new Guidelines reject that notion and direct examiners to
apply a three-part test when examining claims for computer-related
Properly construe the claim and identify the actual
If the contribution lies only in mathematical method,
business method or algorithm, deny the claim;
If the contribution lies in the field of computer
programme, check whether it is claimed in conjunction with a novel
hardware and proceed to other steps to determine patentability
with respect to the invention. The computer programme in
itself is never patentable. If the contribution lies solely in
the computer programme, deny the claim. If the contribution
lies in both the computer programme as well as hardware,
proceed to other steps of patentability.
The Guidelines indicate that a claim must use some type of
unique hardware, and that claims directed to "computer
programmes," a "set of instructions/ Routines and/or
Sub-routines, "computer programme products," a
"Storage Medium having instructions," a
"Database," or a "Computer Memory
with instruction" should not be considered
The Guidelines include 15 examples of claims that are
not patentable in India. Notably, the Guidelines include
no examples in which the claims would considered
The new Guidelines have been viewed as a win for
Indian software company trade associations who lobbied hard to
keep software out of the realm of patentability.
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