Innovation today runs on software — smartphones, tablets, smartwatches. So how does Indian law protect it? Copyright, mostly. Patents, barely — “computer programme per se” isn’t patentable. But that little Latin phrase, “per se”, leaves the door ajar.
Note: The CRI (Computer Related Inventions) Guidelines were revised again in 2017 — that version is the operative one, and courts (e.g. Ferid Allani) have since clarified that a computer programme showing a technical effect/contribution can be patentable. The 2015/2016 saga below is the background.
What “software” is
There’s no precise statutory definition, but a computer programme (per the Copyright Act) is “a set of instructions… capable of causing a computer to perform a particular task.” Siri, Microsoft Word, Super Mario Bros — all computer programmes.
Copyright protects software first
After a long international debate (patent vs copyright vs sui generis), the Berne Convention settled that a computer programme is a literary work, protected by copyright. India follows suit — Section 2(o) includes computer programmes in “literary work,” and Section 13(1) grants copyright in original literary works. Copyright protects the expression — here, the source code (written form) — not the idea.
Software isn’t patentable — in theory
The Patent Office grants patents only after examining whether the invention is new, inventive and industrially applicable (Section 2(j)). But Section 3(k) says a “computer programme per se” is not an invention — so software in itself can’t be patented (its content isn’t a technical element, and prior art is hard to assess).
The “per se” opening: because the bar is on software per se, a programme forming part of an invention that meets Section 2(j) can be patented as a “computer-related invention (CRI)” — the protection extending to the software within it.
The CRI guidelines saga
On 19 February 2016, the Controller General released revised CRI guidelines, after the August 2015 guidelines caused confusion — their drafting and added criteria seemed, in effect, to allow patenting software “per se” (which the law prohibits). The 2016 revision realigned with the Patents Act, removing the confusing provisions and stating software per se can’t be patented under any circumstances — illustrating how hard it is to delineate patentable from non-patentable software. (As noted above, the 2017 guidelines further refined this, with courts recognising a technical-effect test.)
Should software be patentable? The debate
A long-running global argument, with strong views both ways:
- For patentability: patents give stronger, wider protection than copyright; software development needs major R&D, time and skill, and without effective protection, innovation suffers; and tech obsolesces fast.
- Against: software patents favour multinationals (who can afford expensive patents and litigation) over small developers; they risk monopolies that choke IT innovation; and copyright is sufficient, without deterring investment.
The author’s view: software and Indian patent law aren’t a good combination — the cons weigh heavily, and India’s already-long patent process (7–8 years) shouldn’t be lengthened by software applications.
The takeaways
- Copyright protects software (source code as a literary work) — automatically.
- Section 3(k) bars “software per se” — but the “per se” wording allows CRIs.
- The CRI guidelines swung back and forth — 2015 confusion, 2016 realignment, 2017 refinement.
- Patentability remains debated — stronger protection vs monopoly and small-developer concerns.
Frequently asked questions
Can software be patented in India? Not “per se” — Section 3(k) bars a computer programme in itself, but software that forms part of a genuine invention (a computer-related invention) with a technical effect can be patentable.
How is software protected if not by patent? By copyright — the source code is protected as a literary work under the Copyright Act, automatically on creation.
What are the CRI guidelines? Guidelines for examining computer-related inventions; the 2015 version caused confusion, the 2016 revision realigned with the Patents Act, and the 2017 guidelines refined the position further.
What is the “per se” loophole? Because Section 3(k) bars only software “per se”, a programme that is part of a larger patentable invention can be protected as a computer-related invention.
Legislation referred to
- The Patents Act, 1970
- The Copyright Act, 1957