Innovation is the nudge behind any modern economy's rise. Inventions, the bedrock of innovation, are focused on productivity. An incentive to invent creates higher productivity, leading to increased goods and services in the market, and ultimately contributing to economic growth. Thus, it becomes important to protect this creation of the mind. The system of patents enables inventors to protect and control their rights over the use of their invention.

The world is increasingly becoming digital. A vast number of things used by us run on coded software and computer technology. Information Technology (IT) has become a large and in-demand industrial sector across the world. Therefore, it makes perfect sense to protect the interests of inventors who contribute to this field through the development of computer technology, computer programmes, and software.

As the word SOFTWARE is not defined in any Indian statute, the dictionary meaning of the word is referred to by jurists. In simple terms, it is the program used by a computer for a particular work. Software, in its broadest meaning, is a set of instructions or programmes that tell a computer how to perform specific tasks.

Transactions or work was made more straightforward and made it easier to access essential information and platforms for communication with the dawn of the digital era. Software and computer programmes 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 and better 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 programmes are not the patentable subject matter in and of itself. However, there are some unique circumstances in which computer programmes or software may be patentable. To obtain a patent under the Indian Patents Act, 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.

Section 3(k) of the Patents Act of 1970, on the other hand, specifies that "a mathematical or business process, a computer programme 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 programme 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 programmes 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 protects the inventor's idea, which may limit inventiveness with the patented idea. As a result, if 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 a 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 programmes to make them functional.

Furthermore, because computer programmes are included in the list of non-patentable subject matter under the Patents Act of 1970, the following requirements must be met in order for 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 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. Accordingly, if software is related to an invention and constitutes a component of that invention, it can be patentable. To overcome the objection under Sec. 3(k), it is necessary to demonstrate that hardware, in addition to software or a computer programme, is an integral aspect of the invention.


Most modern technologies, such as automobiles, washing machines, and refrigerators, are dependent on computer programmes, as the Delhi High Court found in the case of Ferid Allani v. Union of India &Ors. [2019]. All of these have computer programmes incorporated into them in some way. As a result, if a computer programme 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 programmes even though Section 3(k) is an impediment to such inventions in this case. The applicant, Ferid Allani, 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 programmes per se," not all inventions based on computer programmes. The court held that stating that computer programmes are not patentable would be regressive, given the prominence of computer programmes 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 programme. 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 interpretation of Section 3(k) does not apply to all discoveries involving computer programmes or software.

In Enercon India Ltd. v. Aloys Wobben [2010], a similar judgement was made in the context of a computer programme designed for higher power output through wind turbines, which was challenged under Section 3(k). The court stated that a computer programme that performs a technical process such as controlling a wind turbine to achieve a maximum power output cannot be called a "computer programme 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.


Software does, in fact, play a significant part in society's survival and progress. The world runs on numerous computer software programmes, 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 a patent has been well received by Indian courts as evident by court precedents on the patentability of computer programmes 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 programmes. In order for the Indian economy to flourish, the Indian Patent Office clearly cannot afford to exclude software from patentability.

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.