India: Decrypting The Legislative Intent Behind The Software Patents Ban

Last Updated: 10 April 2017
Article by Joginder Singh

After becoming a party to the Agreement on Trade-Related Aspects of IP Rights (TRIPs), India significantly amended its IP laws to comply with various requirements set out in TRIPs. Article 27(1) of TRIPs states that patent protection for new, inventive and industrially applicable inventions must be available without discrimination based on the technical field of an invention. In respect of software, Article 10(1) of TRIPs mandates the protection of computer programs, whether in source code or object code, as literary works under the Berne Convention, to which India has also acceded. However, TRIPs is silent on the patentability of software inventions, unlike the patentability of pharmaceuticals and agricultural chemical products, which is specifically mandated through Article 70(8). Further, Articles 10(2) and (3) of TRIPs explicitly allow its members to exclude certain inventions (eg, those contrary to public order or morality, methods of treatment and essentially biological processes) from patentability. To this end, Article 27 of the Patent Cooperation Treaty (PCT) also allows contracting states to prescribe their own substantive conditions of patentability.

Against this backdrop, the Indian government proposed to bar the patentability of computer programs in the Patents (Second Amendment) Bill 1999. During a parliamentary debate on March 9 1999 Subramanian Swamy, in support of the bill, said that "we are not going to be a permanently copying country. We are now producing software which needs to be protected". The bill was referred to a joint parliamentary committee (JPC) for comment. In 2001 the JPC recommended to bar only "computer programs per se", instead of an absolute bar on computer programs. The intention was to grant patents for inventions involving a computer program that may include certain other things, ancillary thereto or developed thereon. However, computer programs as such were not intended to be granted patents. During a parliamentary debate on May 14 2002 Minister of Commerce and Industry Murasoli Maran highlighted that "India is emerging as the new leader of the software and IT industry in the world". In the end, the JPC's recommendation to include the phrase 'per se' after "computer program" in Section 3(k) of the Patents Act was accepted by Parliament.

In 2004 Section 3(k) was modified through an ordinance to ban the patentability of "a computer program per se other than its technical application to industry or a combination with hardware". The government acknowledged that Section 3(k) had been subject to confusing interpretations and given the emerging opportunities in the software section and the growing strength in information technology, the modification was necessary. The record of the Group of Ministers meetings held on September 24 and October 25 2004 shows that the intent behind the modified Section 3(k) was to clarify the provision in order to allow software inventions when they have technical applications. During a December 27 2004 news conference the then Union Minister of Commerce and Industry Kamal Nath stated that:

"In IT, the trend is to have software in combination with or embedded in hardware – such as in computers or cell phones or a variety of other gadgets. Software as such has no patent protection (the protection available is by way of copyright); But the changing technological environment has made it necessary to provide for patents when software has technical applications in industry in combination with hardware. This has been a demand of NASSCOM... We have introduced a provision for patenting of software that is embedded in hardware.

Thus, the intention behind modifying Section 3(k) was to provide much-needed clarification. However, some groups lobbied against the modification, stating that it would needlessly widen the scope of protection for software inventions. For example, in a parliamentary debate of March 18 2005 Member of Parliament N N Krishnadas said that "if this Bill is passed in its present form, it will be deadly against the spirit of the common people of our country and the general interest of our country, especially in the area of pharmaceutical industry, drugs, software, etc.". The amendments proposed in the ordinance were ultimately removed by the Patents (Amendment) Act 2005. To this end, the parliamentary approval of March 19 2005 stated that "concerns have also been expressed against the clarification relating to patenting of software related inventions when they have technical applications [Section 3 (k) - Clause 3 (b) of the Bill]. It is proposed to delete the proposed clarification and leave the provision as it was". Therefore, the intention behind modifying Section 3(k) was to provide clarification, but not to narrow the scope of Section 3(k).

In 2008 a parliamentary standing committee on commerce conducted several study visits, during which one issue was that patents are granted for tangible objects. It was felt that Parliament could include software, which is generally considered an intangible item, by listing software in the definition of tangible items, provided that it satisfies other norms such as having industrial application. After that, the committee's report recommended that the scope of 'per se' in the definition had to be clearly defined.

Since then, the situation has remained unchanged. The patent office has issued manuals and guidelines to streamline its practices and procedures, and the tribunals and courts have provided some judicial precedents. However, more clarification is needed. For example, the denial of patent protection under the per se exclusion must be limited to those aspects covered by copyright law. Considering that the same piece of source code can be written in many different ways and different programming languages, and the copyright law protects only the literal copying of software code, copyright law cannot provide adequate protection to software-driven inventions. The copyright law does not protect the basic idea behind the software code. The functional and technical aspects of software-driven inventions ought to be patentable considering that it is the improvements in software that significantly affect the performance of hardware.

This article was previously published in IPBC Global June 18 - 20

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.

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.