Introduction

The ever-evolving fields of technology—such as software, biotechnology, and microbiology—have reshaped the intellectual property landscape globally. In India, the Patents Act, 1970, has undergone significant changes to adapt to the technological revolution and to meet international standards such as those laid down under the TRIPS Agreement and the Patent Cooperation Treaty (PCT).

In the modern digital age, software and computer programs are central to technological advancement. However, the question of whether computer programs are patentable under the Indian Patents Act, 1970, remains a topic of extensive debate and judicial scrutiny. This article aims to explore the legal position regarding the patentability of computer programs in India, the relevant statutory framework, landmark case laws, and comparative international perspectives.

This article explores the treatment of computer programs, biotechnological processes and products, and microorganisms under Indian patent law. It also discusses the role of patents as a source of technological information, the impact of foreign judgments in interpreting the Indian Patents Act, and the relevance of the PCT system.

1. Patentability of Computer Programs under the Indian Patents Act

The primary legislation governing patents in India is the Patents Act, 1970, as amended by the Patents (Amendment) Acts of 1999, 2002, and 2005. The key provision relevant to computer programs is Section 3(k).

Under Section 3(k) of the Indian Patents Act, 1970, the following are excluded from patentability:

“A mathematical or business method or a computer program per se or algorithms.”

This provision is intended to prevent the monopolization of abstract ideas, which include computer programs in their basic form.

Key Points:

Understanding ‘Per Se’ in Section 3(k)

The use of the term “per se” has been the subject of interpretative debate. The inclusion of this phrase implies that not all software is categorically excluded from patentability—only those which are solely computer programs without any technical contribution or industrial applicability.

The Controller’s Manual of Patent Office Practice and Procedure (2019) further clarifies that if a computer program demonstrates a “technical effect” or “technical advancement,” it may be considered patentable.

• Pure software inventions are not patentable.
• Embedded software or software with a “technical application to industry” may be considered patentable.

Guidelines by the Indian Patent Office

To ensure consistent interpretation, the Office of the Controller General of Patents, Designs and Trademarks has issued multiple Guidelines for Examination of CRIs, most recently in 2017.

Key Highlights of the 2017 Guidelines:

• Claims directed at “computer programme per se” are not allowable.
• However, CRIs may be patentable if they demonstrate:
  • A technical effect
  • A technical advancement
  • Integration with hardware that produces a tangible output
• Examples of technical effect include:
  • Higher speed
  • Reduced hardware usage
  • Improved user interface
  • Enhanced security or efficiency in data handling

The focus is on substance over form—merely drafting a claim to include hardware will not suffice unless the invention is technically functional and novel.

Judicial Interpretation

Indian courts and IPAB (now merged with High Courts) have taken a cautious approach toward software patentability.

🔹 Ferid Allani v. Union of India (2019)

Delhi High Court

The Court recognized that “in today’s digital world, inventions are based on computer programs.” It held that if a computer program demonstrates a “technical effect or technical contribution”, it may not fall within the exclusion under Section 3(k).

This judgment was a landmark as it shifted the focus from the form of the invention to its function and utility.

Ericsson v. Intex (2015)

In this case, the Delhi High Court allowed injunctions for SEP (Standard Essential Patent) claims involving computer-implemented inventions, acknowledging the validity of such patents when they produced tangible results in telecommunications.

Microsoft Technology Licensing, LLC v. Assistant Controller of Patents (2020)

The Patent Office rejected Microsoft’s software-based patent application, holding that the claimed invention lacked technical advancement and did not satisfy the threshold beyond a “computer program per se”.

This reaffirmed the need for clear technical effect, not just a business method or routine automation.

Comparative Perspective: India vs. Global Standards

United States (USPTO)

• Software patents are allowed if they meet the Alice/Mayo test, i.e., they must not claim an abstract idea unless it contains an “inventive concept.”
• Utility must be demonstrated.

European Union (EPO)

• Under the European Patent Convention (EPC), software “as such” is excluded, but patents are allowed if the program contributes to technical character.

India’s approach mirrors that of the EPO, focusing on technical contribution rather than just automation.

 Patent vs. Copyright Protection

A common misconception is that all software is protected under patents. In India:

• Copyright Law (under the Copyright Act, 1957) protects the source code and expression of software.
• Patent Law (Patents Act, 1970) protects the functionality or technical solution provided by the software if it meets patent criteria.

Thus, many software creators in India rely on copyright rather than patents unless their innovation integrates with hardware or offers significant technical advancement.

Challenges & Practical Hurdles

1. Lack of clarity in examination process and inconsistency in grant/rejection
2. High bar for novelty and inventive step in software-based inventions
3. Fear of monopolizing abstract ideas, which discourages patenting basic algorithms or logic

Applicants must strategically draft claims to emphasize technical application, rather than code or logic alone.

2. Patents for Biotechnological Processes and Products

The biotechnology sector presents a unique blend of ethical, scientific, and commercial concerns. Under Indian law, biotechnological inventions are subject to strict scrutiny.

Relevant Provision:

• Section 3(j) of the Patents Act:
  “Plants and animals in whole or any part thereof other than microorganisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals” are not patentable.

What is Patentable:

• Genetically modified microorganisms
• Bioprocesses involving recombinant DNA
• Biotechnological inventions that are not essentially biological

Landmark Case:

International Compliance:

India is compliant with Article 27.3(b) of the TRIPS Agreement, which mandates protection for microorganisms and microbiological processes.

Keywords:

• Biotech patents India
• Patents for genetic engineering
• Patentability of biological inventions India

3. Patents for Microorganisms in India

Microorganisms are explicitly excluded from the non-patentable subject matter under Section 3(j), thereby making them eligible for patent protection.

Conditions:

• The microorganism must be novel, non-obvious, and industrially applicable.
• It must be deposited with an International Depository Authority (IDA) under the Budapest Treaty.

Important Regulation:

• Rule 13(8) of the Indian Patent Rules, 2003 mandates deposition of biological material before filing a patent.

Global Context:

Under TRIPS and PCT, patent protection for microorganisms is a requirement, and India has adopted this provision through amendments made in 2002 and 2005.

Keywords:

• Microorganism patent law India
• Section 3(j) Patents Act
• TRIPS compliance India patents

4. Patents: A Source of Technological Information

Patents serve as a rich reservoir of scientific and technical information, enabling the dissemination of knowledge that can:

• Aid in further research
• Prevent duplication of effort
• Help in understanding trends and innovations

Tools for Accessing Patent Information:

• Indian Patent Advanced Search System (InPASS)
• WIPO’s PATENTSCOPE
• European Patent Office (Espacenet)
• USPTO Public Search Facility

Importance for Law Students and Lawyers:

• Understanding claim construction
• Comparative analysis
• Drafting and litigation preparation

Keywords:

• Patent search India
• Patent databases for students
• Importance of patent documentation

5. Role of Foreign Judgments in Interpreting Indian Patent Law

Though Indian courts are not bound by foreign decisions, they frequently refer to them as persuasive precedents.

Notable Citations:

• Novartis AG v. Union of India, (2013) 6 SCC 1
  Ratio: The Supreme Court analyzed Section 3(d) using international standards while emphasizing India’s public health obligations.
• Merck & Co. v. Integra Lifesciences, 545 U.S. 193 (2005)
  Used in Indian contexts to understand experimental use exceptions.

Relevance:

• Promotes harmonization with global patent jurisprudence
• Assists in resolving ambiguities in Indian statutes

Keywords:

• Foreign judgments Indian patent law
• Novartis case India
• Comparative patent law India

6. Patent Cooperation Treaty (PCT) and Its Relevance to Indian Patents

India became a member of the Patent Cooperation Treaty (PCT) in 1998. The PCT provides a unified procedure for filing patent applications in multiple countries.

Key Features:

• International Filing Date preserved across member countries
• Centralized International Search Report (ISR)
• International Preliminary Examination for patentability

Benefits for Indian Applicants:

• Cost-effective entry into global markets
• Extended time (up to 30/31 months) to file national phase applications
• Access to comprehensive search and examination results

Governing Body:

• World Intellectual Property Organization (WIPO) administers the PCT.

Keywords:

• PCT filing from India
• International patent protection India
• WIPO PCT process India

Conclusion

Indian patent law continues to evolve to accommodate technological innovation and international obligations. The exclusion of software “per se,” cautious approach to biotech patents, and clear provisions for microorganism protection reflect a balanced and strategic legal framework. Patents not only encourage innovation but also serve as an essential resource of technical knowledge.

The growing relevance of foreign judgments and international treaties like the PCT underscores India’s commitment to a globally harmonized IP regime. For law students and practitioners, a strong grasp of these principles and tools is crucial to navigating the complex but fascinating world of patent law.