In February 2016 the Patent Office issued CRI Guidelines requiring that a computer program be claimed alongside novel hardware to be patentable. The software industry, which had fought the previous version to a standstill, was delighted. The requirement survived about sixteen months.
The background
On 19 February 2016, the Office of the Controller General of Patents, Designs and Trade Marks released new Guidelines for Examination of Computer Related Inventions. They were welcomed by those who had protested against the 2015 Guidelines, which had been kept in abeyance in the face of that opposition.
The crux of the new guidance: an examiner should deny the claim if the contribution of the invention lies solely in a computer program.
What the Guidelines said
The Guidelines defined Computer Related Inventions (CRIs) as inventions “which involve the use of computers, computer networks or other programmable apparatus and include such inventions having one or more features of which are realized wholly or partially by means of a computer program or programs”.
Their stated purpose was to ensure smooth and uniform examination, and to make the exclusions under Section 3(k) of the Patents Act more transparent. Section 3(k) excludes a mathematical or business method, a computer program per se, or algorithms from being inventions. The Guidelines defined and detailed those terms, making them clearer for examiners and applicants alike.
Examination procedure for CRIs was stated to be the same as for other applications, but requiring greater scrutiny.
The three-prong test
The Guidelines set out a test for patentability of a CRI:
- Properly construe the claim and identify the actual contribution.
- If the contribution lies only in a mathematical method, business method or algorithm — deny the claim.
- If the contribution lies in the field of the computer program, check whether it is claimed in conjunction with novel hardware, and proceed to the other patentability steps. The computer program in itself is never patentable. If the contribution lies solely in the computer program, deny the claim. If it lies in both the program and the hardware, proceed.
The Guidelines then gave illustrative examples of refused cases.
Why industry welcomed it
The test was intended to ensure patents are not granted to mere software. The reasoning offered was that granting patents over software would produce both a flood of applications and a brake on others wishing to use the software for other purposes.
The Guidelines were welcomed by the Software Freedom Law Center, iSPIRT (Indian Software Product Industry Round Table) and Knowledge Commons, which had spearheaded the protests against the earlier version and argued for stricter examination in line with Section 3(k). In their view, the previous Guidelines would have allowed a string of software patents that were not only contrary to the statute but harmful to the IT industry and startup community, producing more patent litigation and stalling companies built on software.
Coming after the refusal of a compulsory licence, the Guidelines seemed to signal that the government’s IP arm wanted to push for more inventiveness from Indian innovators. Refusing patents for software alone prevents monopolisation and helps a startup community that largely runs on software.
What happened next
The novel hardware requirement did not survive. The Revised CRI Guidelines of June 2017 replaced the 2016 version and removed the three-prong test entirely, including the requirement that a computer program be claimed with novel hardware. The 2017 Guidelines direct examiners to focus on the substance of the claim rather than its form, and to determine whether the claimed subject matter falls within the Section 3(k) exclusions — without imposing the hardware condition.
That shift moved the question from the Guidelines back to the statute and the courts. Subsequent decisions — notably from the Delhi High Court — have emphasised that a computer program producing a technical effect or technical advancement is not excluded merely for being implemented in software, and that Section 3(k) bars a computer program per se rather than every invention involving one.
So the position the software industry celebrated in 2016 was the high-water mark of the restrictive approach. The 2017 Guidelines remain the operative guidance, and the boundary is now drawn case by case around technical contribution rather than by a bright-line hardware test.
The takeaways
- Section 3(k) excludes a computer program per se — not every software-implemented invention.
- The 2016 Guidelines required novel hardware alongside the program.
- The 2017 Guidelines removed that test and are the current guidance.
- The line is now technical contribution — assessed on substance, not claim form.
Frequently asked questions
Are software patents allowed in India? Section 3(k) excludes a computer program per se, but an invention involving software that produces a technical effect or advancement is not excluded merely for being software-implemented.
Do I need novel hardware to patent a computer related invention? Not under the current guidance — the 2016 Guidelines imposed that requirement, but the Revised CRI Guidelines of 2017 removed it.
What are the CRI Guidelines? Guidelines issued by the Patent Office for examining computer related inventions, intended to make the Section 3(k) exclusions transparent and examination uniform.
Which version of the CRI Guidelines applies now? The Revised Guidelines issued in June 2017.