Ask whether software is patentable in India and you will get two confident answers that contradict each other. Both are half right. The Patents Act excludes “a computer programme per se”, and the Patent Office refuses a great many software applications on that ground. It also grants a great many, because an invention that happens to be implemented in software is not a computer programme per se. The whole subject lives in that distinction.
Quick reference
| The exclusion | Mathematical methods, business methods, computer programmes per se, algorithms |
| The test | Does the claimed invention produce a technical effect or make a technical contribution beyond the program running on a computer? |
| Novel hardware needed? | No — the courts have rejected that requirement |
| Business methods | Excluded however they are dressed |
| Examination guidelines | Computer Related Inventions guidelines, 2025 edition, replacing 2017 |
| Code itself | Protected by copyright, automatically |
What is excluded
The Act lists among things that are not inventions “a mathematical or business method or a computer programme per se or algorithms”. Three of the four are absolute: a mathematical method, a business method and an algorithm as such are not patentable whatever the claim looks like. The fourth carries the qualifier.
“Per se” was Parliament’s choice. A 2004 ordinance had tried to say that a computer programme with a technical application to industry, or combined with hardware, was patentable; Parliament dropped that in 2005 and kept the bare “per se”. The words have been read ever since to mean that a computer programme as such — the code, the instructions — is excluded, but an invention that uses a computer programme to achieve something more is not necessarily.
What “something more” means
The Delhi High Court settled the approach in Ferid Allani (2019): the question is whether the invention produces a technical effect or makes a technical contribution, and an invention that does is patentable even though it is implemented through a computer programme. The court noted that most modern inventions involve software, and that reading the exclusion to catch all of them would be absurd.
Later decisions have filled it in. An earlier examination practice had demanded novel hardware — the software had to be combined with new physical components. The court rejected that in Microsoft (2023) and elsewhere: what matters is the technical contribution, not whether the box it runs on is new. The court has also held that a technical contribution can lie in how a computer itself works — memory, processing, security, network handling — as much as in an effect on the physical world outside it.
What the courts have not done is open the door to business methods. An application that is a way of doing business — pricing, matching buyers and sellers, managing loyalty points, processing a transaction — remains excluded even when it is implemented on a server with a database and an app. The Delhi and Madras High Courts have refused such claims and said so plainly, while occasionally observing that the legislature might revisit the exclusion. Until it does, “we use technology” does not convert a business method into a technical invention.
The 2025 guidelines
The Patent Office examines software applications under its Guidelines for Examination of Computer Related Inventions. A new edition was issued in July 2025, after two rounds of drafts and consultation, replacing the 2017 version. It sets out a structured approach to each limb of the exclusion, adopts the technical-effect and technical-contribution reasoning of the courts, drops any requirement of novel hardware, and adds a section on artificial intelligence, machine learning, blockchain, quantum computing and similar fields — where the question is the same, but harder to answer.
The guidelines bind examiners, not courts. They are, however, the framework every examination report will use, and an application drafted with them in mind gets a better hearing.
What tends to pass, and what does not
Applications that succeed describe a technical problem and a technical solution. Improving image or signal processing; compressing data more efficiently; securing a network or authenticating a device; managing memory, power or bandwidth; controlling a machine, a vehicle or an industrial process; making a computer faster or more reliable. The software is the means; the contribution is technical.
Applications that fail describe a commercial or administrative problem solved by ordinary computing. An app that lets customers book, order, compare, share or pay; a platform that matches, ranks or recommends; a dashboard that presents information; a workflow that automates what a clerk did. The technology is generic and the contribution is to business, not to technology. Adding “processor”, “server” and “database” to the claims does not change that, and examiners are trained to see through it.
Between the two lies a large grey area — analytics, AI models, user interfaces, data structures — where the outcome turns on how the invention is described and claimed.
Drafting for India
- Lead with the technical problem. The description should explain what was technically deficient before and how the invention fixes it, in engineering terms, with results if possible.
- Claim the effect, not the code. Method claims that recite technical steps and their technical result; system claims that tie those steps to components. Avoid claims that read as a flowchart of a business process.
- Do not claim the algorithm as such. An algorithm applied to a technical end can be claimed as part of that end; the mathematics alone cannot.
- Watch the “per se” trap in foreign drafts. Claims written for the US or Europe — “a computer-readable medium storing instructions which…” — are routinely objected to in India. They usually need recasting as method and system claims before or at national phase entry.
- Expect the objection anyway. A software application that receives no exclusion objection in the first examination report is rare. The reply is where the case is made, and it should be prepared for from the outset.
Copyright is the other half
Whatever happens at the Patent Office, the code is protected by copyright from the moment it is written, as a literary work, without registration. Copyright stops copying of the program; it does not stop someone writing their own program to do the same thing. That is precisely the gap a patent fills, which is why the two are complementary rather than alternatives. There are separate guides to copyright.
Frequently asked questions
Is software patentable in India? A computer programme as such is not. An invention implemented through software is, if it produces a technical effect or makes a technical contribution beyond the program running on a computer — improving how a machine, a network or the computer itself works. Business methods are excluded however they are implemented.
What is the test for software patents in India? Technical effect or technical contribution, as settled by the Delhi High Court in Ferid Allani and applied since. The Patent Office’s 2025 guidelines for computer related inventions adopt the same approach. Novel hardware is not required.
Can I patent a mobile app in India? Only if the app embodies a technical solution to a technical problem. An app that delivers a business service — booking, ordering, matching, paying — on ordinary hardware is a business method and is excluded. An app that, say, processes sensor data in a new way to achieve a technical result can be.
Are AI and machine learning inventions patentable in India? On the same test. A model or training method claimed as mathematics is excluded; one claimed as a technical improvement — better image recognition, more efficient training on constrained hardware, a control system that performs better — can be patented. The 2025 guidelines address these fields specifically.
What are the CRI guidelines? The Patent Office’s Guidelines for Examination of Computer Related Inventions, which tell examiners how to apply the exclusion. The current edition was issued in July 2025 and replaced the 2017 guidelines.
Does copyright protect my software instead? Copyright protects the code from being copied, automatically and without registration. It does not protect the idea, the method or the function, so a competitor can write independent code that does the same thing. A patent is what protects the function.
Useful official resources
- IP India — patents — the Act and the examination guidelines
- Delhi High Court — judgments — the decisions on computer related inventions
See our related notes on what can be patented in India, how examination works and copyright registration for software.
A software invention to protect, or an examination report citing the exclusion? Talk to us.