The debate around software patentability has intensified with the global rise of digital technologies. While software drives innovation, laws around patenting software vary drastically between countries. This blog explores how India and the United States differ in their treatment of software-related inventions and what that means for innovators.

What Are Software Patents?

Software patents generally protect computer-implemented inventions. They cover systems, methods, and processes driven by computer programmes that provide a technical effect or solve a technical problem. However, not all software is patentable, and definitions often vary across jurisdictions.

India vs USA: Legal Framework Comparison

Country Key Legal Provision Patentable vs Non-Patentable

India Section 3(k) of the Indian Patent Act Software “per se” is not patentable. Only inventions with a technical contribution beyond a computer programme may qualify.

USA Judicial precedents such as Diamond v. Diehr Software can be patented if it results in a practical application or goes beyond an abstract idea. Inventions are analyzed as a whole.

India’s Position: Conservative but Evolving

India follows a stricter interpretation under Section 3(k) of its Patent Act, which excludes computer programmes “per se” from patentability. The Indian Patent Office released Computer Related Inventions (CRI) Guidelines in 2016 and revised them in 2017 to offer clarity.

Key highlights:

Mere algorithms or business methods are not patentable.

Software with technical effect or technical contribution (e.g. data compression, image processing, or security protocols) may be patentable.

The invention must go beyond a simple computer implementation.

Indian courts have echoed this approach. In Ericsson vs. Intex, the Delhi High Court reinforced that inventions with a demonstrable technical effect are not excluded from patentability.

The US Approach: Flexible and Case-Driven

The United States employs a more permissive approach. While early cases like Gottschalk v. Benson were skeptical of software patents, decisions like Diamond v. Diehr opened the door by allowing software that controls an industrial process.

Important aspects:

The U.S. Patent and Trademark Office (USPTO) evaluates software inventions based on whether they are more than abstract ideas.

If the software is tied to a real-world application and adds inventive concepts, it may be granted a patent.

There is no statutory exclusion like India’s Section 3(k), so courts play a pivotal role.

CRI Guidelines: India’s Patent Filter for Software

India’s CRI Guidelines introduced a three-step test to assess patentability:

Determine if the claimed subject matter is a mere business method, algorithm, or mathematical method.

Check if the software is linked with any hardware or provides a technical contribution.

Apply standard novelty and inventive step requirements.

The revised 2017 version slightly relaxed the emphasis on “novel hardware,” shifting focus to technical contribution, aligning India more closely with international practices—while still maintaining clear boundaries.

Real-World Impact for Innovators

In India, innovators need to show that their software invention leads to a technical effect, beyond just automation or business logic.

In the US, there is more leeway, especially for software tied to industry, user interfaces, or integrated systems.

This difference can influence IP strategy, especially for startups and tech firms operating across borders. A software idea that’s patentable in the US might not even pass the first hurdle in India.

The global landscape for software patents is still evolving. India and the United States represent two ends of the spectrum: one cautious and statutory, the other flexible and case-driven. For software developers and tech companies, understanding the local nuances in patent law is critical to protecting innovation effectively.