How can Software be patented in India?

(a) Software by itself is not patentable.

If there is any clarity regarding Section 3(k), it is that computer programmes or software are not patentable in and of themselves. This means that the software to be patented must demonstrate its relationship with things unrelated to the invention, such as a hardware component, or perhaps demonstrate a technical effect created as a result of its application.

(b) The software does not have to be a special adaptation of any hardware - In order to be granted a patent registration, software or a computer programme does not have to be inherently novel, non-obvious in itself, or be a special adaptation of existing hardware or any modification of such hardware.

(c) Software that is essentially a business method cannot be patented - Software tools that are purely business methods would also be denied patent protection.

Yahoo's claim was for a software tool that targeted relevant search terms to Yahoo's business. However, the IPAB rejected the patent application, citing it as a business method embodied in technology. Where technical advances are only a manifestation of a core business method held by the IPAB, such advances shall not give the patentee any advantage in the patent's allowance.

(d) The substance of the software patent should be considered, not its form -

According to the 2017 guidelines, software being applied for a patent as a 'method' is to be judged on substance, i.e., the focus should be on the underlying substance of the invention, not the particular form in which it is claimed. As a result, rather than being a computer programme or algorithm, greater emphasis should be placed on the novelty, industrial application, and inventive step used in creating such software.

(e) Despite the fact that it is a computer programme, an invention displaying a technical effect is patentable -

As the Delhi High Court noted in the case of Ferid Allani v. Union of India & Ors., most modern inventions, such as automobiles, washing machines, and refrigerators, are based on computer programmes. All of these rely on computer programmes that are built into them. As a result, if a computer programme is rejected solely because Section 3(k) contains such a prohibition on patentability, modern-day inventions would lose the right to be patented.