Software can be patented in India when it produces a technical effect or makes a technical contribution, such as faster processing, lower memory use, better security, or improved control of a machine or device. Section 3(k) of the Patents Act excludes 'computer programs per se', mathematical methods, business methods and algorithms, so code by itself, a business process run on a computer, or a pure algorithm will be refused. The Delhi High Court confirmed the technical-effect test in Ferid Allani v Union of India (2019).
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Usually patentable
- A method that makes a computer or network work better: faster, more secure, less memory or bandwidth
- Software that controls hardware: a machine, sensor, vehicle, medical device or IoT system
- New data compression, encryption, image or signal processing with a measurable technical result
- System architecture that solves a technical problem (e.g. load balancing, fault tolerance)
Usually not patentable
- Source code or an app by itself (protect it with copyright)
- A business method run on a computer: a pricing model, a loyalty scheme, an e-commerce checkout flow
- A pure algorithm or mathematical formula
- A user interface layout or presentation of information (consider design or copyright)
What the law says
Section 3(k) of the Patents Act, 1970 says that "a mathematical or business method or a computer programme per se or algorithms" are not inventions. The key words are per se: a program as such is excluded, but an invention that uses software to achieve something technical is not.
In Ferid Allani v Union of India (Delhi High Court, 2019), the court held that an invention involving software should be judged by its technical effect or technical contribution, and that most modern inventions are based on computer programs, so refusing them all would be wrong. The Patent Office's Guidelines for Examination of Computer Related Inventions (CRI Guidelines) follow the same approach, and Indian examiners now look at the substance of the claims, not just whether software is involved.
The test examiners actually apply
In practice, an Indian examiner asks three questions about a software claim:
- What problem does it solve? It should be a technical problem (speed, security, reliability, control of a device), not a commercial or administrative one.
- How does it solve it? By technical means: how data is processed, stored, transmitted, or how hardware is controlled.
- What is the result? A technical effect you can point to, ideally with numbers: 40% less latency, half the memory, fewer failed transactions at the network level.
If the only advance is the business idea ("customers get a discount when..."), the claim fails, however clever the code is.
Granted vs refused: how the same idea can go either way
| Refused as framed | Patentable when framed as |
|---|---|
| An app that recommends products to shoppers | A method that reduces server load by pre-computing recommendations on-device, with the caching and sync mechanism claimed |
| A system for booking doctor appointments | A scheduling system that resolves conflicting writes across distributed databases without locking |
| A fraud-scoring formula | A transaction pipeline that detects fraud in real time using a specific feature-extraction method that cuts processing time |
| A new way to display a dashboard | A rendering method that reduces GPU usage when displaying large data sets on low-end devices |
The examples are illustrative: whether your version qualifies depends on what is genuinely new about it, which is what a patent search tells you.
How to draft a software patent that survives examination
- Lead with the technical problem, not the business benefit. Investors care about revenue; examiners care about the technical advance.
- Describe the architecture: system diagrams, flowcharts, data structures and how components interact. A claim that reads like a business plan will draw a 3(k) objection.
- Claim a method, a system and a computer-readable medium so the invention is covered however it is implemented.
- Show the technical effect with test data or comparisons where you can.
- Avoid result-only claims ("a system that improves engagement"). Claim how it is done.
A Section 3(k) objection in the First Examination Report is common for software applications and is not the end of the road: a well-drafted specification gives you the material to argue technical effect in the reply. See patent drafting.
Protecting what a patent can't
- Copyright protects the code itself, automatically, and can be registered for evidence.
- Trademark protects the app or product name and logo.
- Design registration can protect the look of a physical product, but generally not a screen UI on its own.
- Trade secrets (NDAs, access controls) protect server-side logic that customers never see.
Startups: file early, file cheap
If you're about to demo, launch or pitch, file a provisional application first to secure your date, then file the complete specification within 12 months. Recognised startups pay the lower fee and can ask for expedited examination. See patent fee benefits for startups.
Frequently asked questions
Can I patent a mobile app in India?
Not the app as such. You can patent the technical method behind it if it produces a technical effect, such as better use of device resources, faster data processing or control of hardware. The app's code is protected by copyright and its name by a trademark.
Is a software patent granted in India valid in the US or Europe?
No. Patents are territorial. To protect the invention abroad, file a PCT application or direct national applications, usually within 12 months of your Indian filing date to keep the priority.
What does 'computer programme per se' mean?
It means the program by itself, as a set of instructions. Section 3(k) excludes that, but not an invention where software is used to achieve a technical result.
Can a SaaS business model be patented?
The business model, no: business methods are excluded under Section 3(k). A technical part of the platform, such as how it scales, secures or processes data, may be patentable.
Should I keep my algorithm secret instead?
If competitors cannot see or reverse-engineer it (for example, it runs only on your servers), a trade secret may protect it for longer and at lower cost. If it is visible in the product, a patent is usually the stronger option.
Patent guides for other technologies
AI and machine learning · Pharma and formulations · Medical devices and diagnostics · Mechanical and product inventions · EV, battery and clean-tech · Agritech and food processing
Not sure about your invention? Try our free patentability checker.
Also read: What cannot be patented in India · How to patent an idea in India
This guide is general information, not legal advice. Whether your invention can be patented depends on its details and the prior art; speak to a registered patent agent about your case.