Software intellectual property, commonly known as software IP, is a computer program or code that is protected by law from unauthorized copying, theft, or other uses. The corporation that generated or obtained the rights to that code or software owns the intellectual property (IP) associated with it. It is prohibited for someone else to use it without your permission. Source code and object code are two types of computer software. Software development requires a lot of talent, time, and effort, so it's only reasonable that you'd want to preserve all of your hard work. Unauthorized individuals can copy and use computer programs. Copyright laws may protect your actual program and app source code. Patent law may provide protection for software concepts and developments. Software, in its broadest meaning, is a set of instructions or programs that tell a computer how to perform specific tasks. Every transaction or work was made more straightforward and easy access to all the essential information and platforms for communication with the dawn of the digital era. Software and computer programs confront fierce competition in the market, and they are particularly sensitive to economic loss because they may be accessed by users without paying, and they are also prone to piracy and copying. Furthermore, due to severe rivalry, there is a considerable risk of becoming obsolete very fast, as competitors may immediately introduce a competitive product. Software protection under the IPR system will not only safeguard the owner's economic interests but will also encourage innovation and creativity.


Software or computer programs are not the patentable subject matter in and of itself. However, there are some unique circumstances in which computer programs or software may be patentable. To  obtain a patent for software development, the following major determining factors must be demonstrated:

  1. the invention must contain patentable subject matter;
  2. the invention must be capable of industrial application;
  3. the invention must be novel;
  4. the invention must involve an inventive step (be non-obvious); and
  5. The invention's disclosure in the patent application must meet certain formal and substantive standards.

'New invention' means any invention or technology that has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of a patent application with complete specification, i.e., the subject matter has not fallen into the public domain or that it does not form part of the state of the art," according to Section 2(1)(I) of the Patents Act 1970. Section 3(k) of the Patents Act of 1970, on the other hand, specifies that "a mathematical or business process, a computer program per se, or algorithms" are not innovations and thus not patentable. The legislative intent behind the use of the term "per se" was elucidated in the Joint Committee Report when they introduced the Patents (Amendment) Act, 2002, which stated, "This change has been proposed because sometimes the computer program may include certain other things, ancillary thereto or developed thereon." If they are inventions, the purpose here is not to deny them a patent. The computer programs themselves, on the other hand, are not meant to be patentable.

Regardless of the Parliament's reasoning, it can still be claimed that the meaning of section 3(k) of the Patents Act 1970 is that while not all software is eligible for patent protection, genuine cases where software meets all of the conditions for patentability must be granted a patent. The need for a stringent inspection on software patent applications is important because patent protection protects the patent's idea, which may limit inventiveness with the patented idea. As a result, if the software has a "technical effect," it can be protected under the patent system.

According to the manual, as patents are given in all domains of technology, it is critical to determine whether the method/process belongs to the technological area, i.e. whether the claimed inventive step has any technical advancement over the previous art. As a result, the examiner examines the interplay of software and hardware in order to bring a computer-related invention or software outside the scope of the word "per se" in section 3(k) (where hardware is more than the general-purpose machine). If the invention passes the triple test of novelty, inventive step, and industrial applicability, the claims to these devices may be regarded patentable in circumstances where the devices are claimed in combination with innovative or known computer programs to make their functioning final.

Furthermore, because computer programs are included in the list of the non-patentable subject matter under the Patents Act of 1970, the following requirements must be met in order for the software to be patentable:

  1. The invention is related to a computer, where software is necessary and provides a technical effect;
  2. The invention is more than a technical effect provided by software, in that there is a tangible element that interacts with the software, resulting in the software being a collection of software and tangible elements.

When it comes to the protection of ideas and the functionality of the software, a patent can be an excellent option. However, in order to be given a patent, the software must be more than an algorithm and must be a technological invention that qualifies for such a patent. However, if the software is related to an invention and constitutes a component of that invention, it can be patentable. To avoid the claim of sec. 3 (k), it is necessary to demonstrate that hardware, in addition to software or a computer program, is an integral aspect of the invention.


Most modern technologies, such as automobiles, washing machines, and refrigerators, are dependent on computer programs, as the Delhi High Court found in the case of FeridAllani v. Union of India & Ors. [2019]. All of these have computer programs incorporated into them in some way. As a result, if a computer program is rejected only because Section 3(k) prohibits patentability, current inventions will lose their ability to be protected. The court elaborated on the patentability of computer programs even though Section 3(k) is an impediment to such inventions in this case. The applicant, FeridAllani, filed for a patent for "a method and apparatus for accessing information sources and services on the web," according to the basic facts of the case. The patent application was denied by the IPO due to a violation of Section 3 of the Patent Act (k). The matter was referred to the IPAB, which confirmed the rejection, and a writ petition was filed with the Delhi High Court.

To begin with, the Court clarified that the patentability bar only applies to "computer programs per se," not all inventions based on computer programs. The Court held that stating that computer programs are not patentable would be regressive, given the prominence of computer programs in modern devices such as ovens, automobiles, and refrigerators. Inventions based on artificial intelligence, blockchain, and other digital products would not be patentable if this were the case.

The court also stated that an invention is patentable if it displays a technological effect or contribution, even if it is based on a computer program. As a result, this case is one of the most important decisions in India when it comes to patenting software because it specifically states that Section 3(k) does not apply to all discoveries involving computer programs or software.

In Enercon India Ltd. v. AloysWobben [2010], a similar judgment was made in the context of a computer program designed for higher power output through wind turbines, which was challenged under Section 3(k). The court stated that a computer program that performs a technical process such as controlling a wind turbine to achieve a maximum power output cannot be called a "computer program per se," despite the fact that wind turbines cannot be controlled manually and require advanced computer technology to do so. According to the court, a patent claim containing merely some process steps to carry out a technical process or achieve a 'technical effect' would not be subject to the objection resulting from Section 3(k) of the Patents Act.


The software does, in fact, play a significant part in society's survival and progress. The world runs on numerous computer software programs, from our smartphones and smartwatches to heavy machinery and industrial capital. As a result, it is becoming increasingly vital to safeguard and promote inventors' rights in the creation of software through a stronger patent enforcement mechanism. The idea of allowing software to be patented has been well received by Indian courts. We now have established court precedents on the patentability of computer programs or software. As the Indian economy becomes increasingly digitized, with software increasingly forming the basis of innovation and business competition, future court decisions will undoubtedly aid in solidifying a clearer interpretation of Section 3(k) and its applicability to software and computer programs. It cannot afford to exclude software from patentability in order to flourish in the economy.

Patenting Computer Software In India: An Analysis

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.