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Patent criticality
Software claimed as software
Can I patent my software in India?
You cannot patent a computer programme per se. You can, on current Indian authority, patent an invention that happens to be implemented in software if it delivers a real technical effect - and the difference between the two is decided by what your specification explains, not by how the claim is labelled.
What the words actually say
Section 3(k) excludes a mathematical method, a business method, a computer programme per se, and algorithms. The qualifier per se attaches only to computer programme. It does not qualify business method - which is why the Indian business-method bar is absolute, and why European and UK authorities on as such do not carry over.
Indian courts have held that the words per se were included deliberately, so that genuine inventions merely based on computer programmes are not refused, and that the test is whether the invention demonstrates a technical effect or technical contribution. More recent decisions have accepted that this can be so even on a general-purpose computer, and have criticised the application of a novel hardware requirement that later guidelines had removed.
What this means for drafting
The specification has to explain what improves in the machine or the system: latency, memory access, throughput, power, signal quality, network security, reliability, resource allocation. It has to explain the technical problem and how the claimed steps solve it. Where the invention involves a model, the description has to be specific enough to be reproducible - the 2025 CRI Guidelines address sufficiency of disclosure for AI and machine learning directly.
What does not help is describing the commercial benefit. Faster checkout, better recommendations and higher conversion are not technical effects. If the only thing that improves is the business outcome, no claim format rescues it.
Section 3(k) of the Patents Act 1970.
Delhi High Court decisions have held that inventions incorporating algorithms within functional systems may be patentable where they produce a technical effect, and separately that re-labelling a business method as a system does not save it.
The revised CRI Guidelines were notified on 29 July 2025. They provide a step-wise methodology, flowcharts, and roughly sixty worked examples of allowable and non-allowable claims, and cover AI, machine learning, deep learning, blockchain and quantum computing.
Write the technical-effect story into the specification at drafting time. It cannot be added later.
Filing a claim that recites a processor and a memory performing business logic and hoping the hardware recitation does the work.
Any specification whose advantages section talks only about users, customers and revenue.
Write one paragraph describing what measurably improves inside the system, with numbers. If you cannot, the section 3(k) problem is real and structural.
Sources & further reading
- Section 3, Patents Act 1970 - what are not inventions — Official IP India section text
- Revised Guidelines for Examination of Computer Related Inventions, notified 29 July 2025 — CGPDTM, via Press Information Bureau
- Microsoft Technology Licensing LLC v Assistant Controller of Patents, Delhi High Court, 16 April 2024, C.A.(COMM.IPD-PAT) 185/2022
- OpenTV Inc v Controller of Patents and Designs, Delhi High Court, 11 May 2023, 2023:DHC:3305
Related
Section 3(k)
Section 3(k) excludes a mathematical method, a business method, a computer programme **per se**, and algorithms from being inventions.
The case that put technical effect back at the centre
The case that confirmed India bars business methods absolutely
How to spot the patentable feature in your own work
The part that solves a technical problem in a way the field would not have expected - not the part you are proudest of, and usually not the whole system.
New CRI Guidelines replace the 2017 version, and cover AI for the first time
Thinking about filing?
Before anything is drafted, the useful work is establishing what is already public, what is genuinely yours, and what you can honestly claim.
Educational guidance, not legal advice. This material is published by Ragulika IP for general education and information. It is not legal advice, it does not create a professional-client relationship, and it is not a substitute for advice on your own facts. Patentability, infringement, prosecution strategy and every other IP outcome turn on the specific facts and on the law and Patent Office practice as they stand at the time you act. Please take professional advice before making a decision, and read the underlying provision or judgment before relying on any point stated here.
Last reviewed by Ragulika IP on 2026-08-23. Indian patent law and Patent Office practice change; check the position before you rely on it.