Software Patents in India and Section 3(k)

Explainer · Patent Law · Last verified October 2026

Updated for 2026 · Claw Editorial

A founder asks a simple question: "We built a new app. Can we get a patent on the software?" The honest answer in India is "it depends", and many applications are refused because of one short clause, Section 3(k) of the Patents Act, 1970. This explainer says in plain words what Section 3(k) blocks, what it does not block, what the current Patent Office guidelines say, and which court decisions you should know. Last verified October 2026.

01The short answer

India does not give a patent for a computer programme per se. That is the rule. But India also does not ban every invention that uses software. If your invention solves a technical problem and gives a technical effect, the fact that it runs on a computer does not by itself make it unpatentable.

So the real test is not "is it software?". The real test is "what does the claim actually do, and is that technical?". Most of the fight with the examiner happens on this point.

02What Section 3(k) says

Section 3 of the Patents Act, 1970 lists things that are not inventions under the Act. Clause (k) covers "a mathematical or business method or a computer programme per se or algorithms". You can read the live text on India Code.

Why the words "per se" matter

The exclusion is for a computer programme per se, meaning the programme on its own. It does not say that anything involving a programme is excluded. Courts and the Patent Office have both read the clause this way.

Four things the clause lists

• A mathematical method.
• A business method.
• A computer programme per se.
• Algorithms.

An application can be rejected under any one of these limbs, so a good response to an objection names the limb the examiner relies on and answers that limb.

03The CRI Guidelines: what the Patent Office follows

CRI means Computer Related Inventions. The Patent Office issues guidelines that tell examiners how to apply Section 3(k). The edition to read now is the Revised Guidelines for Examination of Computer Related Inventions (CRIs), 2025, released by the Patent Office (CGPDTM) in 2025. The Government announced the revised guidelines through the Press Information Bureau.

Earlier drafts came out in March 2025 and a revised draft followed. Always check the Patent Office website for the version in force on the day you file, because guidelines are not statute and can be updated.

What the guidelines try to do

• Give examiners a step-by-step way to test a claim under Section 3(k), with examples.
• Ask whether the claim, read as a whole, is a technical solution to a technical problem, and not just a programme, method or algorithm in the abstract.
• Cover newer fields such as AI and machine learning, blockchain and quantum computing, with illustrations.

The guidelines are not law. The Act and the courts come first. But examiners follow them, so your claim drafting and your reply to an objection should speak to them.

The question is never only "is it software?". It is "does the claim, as a whole, give a technical effect?".

04Leading cases to know

The court decisions below shaped how Section 3(k) is read. Read the full judgments on Indian Kanoon or the Delhi High Court site before citing them.

Ferid Allani v Union of India (Delhi High Court, 2019)

This is the case most people start with. It is W.P.(C) 7/2014. The Delhi High Court held that Section 3(k) is not an absolute bar on computer related inventions. If the invention shows a technical effect or technical contribution, it can pass the exclusion even though it uses a computer programme. The Court sent the application back for fresh examination.

Microsoft Technology Licensing LLC v Assistant Controller of Patents (Delhi High Court, 2023)

The Delhi High Court again looked at what counts as a technical effect and criticised the practice of rejecting an application only because it involves software.

Why these cases matter in practice

Together they say that the examiner must look at the substance of the claim, give reasons, and not reject on a label. When you reply to a Section 3(k) objection, these decisions are the base of your argument. Other High Court decisions exist as well, so run a fresh search for your exact point before you file a reply.

05What usually gets accepted or refused

This part is general guidance, not a promise. The result depends on the claim.

Claims that tend to struggle

• A pure business method written as software, such as a new way to run a loyalty scheme.
• A mathematical formula or algorithm claimed with no tie to a technical use.
• Claims that only say "a computer programme that does X" with no hardware or technical result.

Claims that tend to do better

• Software that improves how a device works, for example faster memory use, lower power use or better data transmission.
• Software working with hardware to control a real process or machine.
• Claims that clearly state the technical problem, the technical solution and the technical effect.

Drafting tips

• Describe the technical problem first, not the business goal.
• Claim the system or method with its technical steps and effect, not the code.
• Keep a set of fall-back claims that are tied to hardware or a technical result.

The procedure after filing is the usual one: request for examination, a first examination report, and a reply. Check the current Patents Rules and fee schedule on IP India for forms and deadlines, since these change.

Related reading: if your invention touches an existing patent fight, see our guide to IP litigation tracking software in India. For another common patent exclusion, see Section 3(d) and the Indian courts. For a very different IP topic, see personality rights suits in India.

06Where Claw fits

Claw is an all-in-one legaltech platform for Indian advocates, law firms, and corporate legal teams, combining AI-based case search, an AI legal assistant (Legal GPT), case management, and compliance automation across all Indian courts and tribunals.

Most of the fight over a software patent is about whether the claim shows a technical effect, and the answer lives in the case law. Claw searches 30 crore+ judgments, covering the Supreme Court from 1950 and the High Courts from 1990, in under 5 seconds, so you can read Ferid Allani, the later Delhi High Court decisions and others before you reply to a Section 3(k) objection. It also tracks cases, orders and hearings across 9,102 courts, benches and forums, so a pending appeal can be followed by party or advocate name.

Claw does not use customer documents to train AI models. Create a FREE Claw account to research the software patent case law and track a Section 3(k) appeal by party or advocate name. To search the wider body of law, see case search across Indian courts.

07Sources and further reading

• Patent Office (IP India), for the Act, Rules, forms and the CRI Guidelines: ipindia.gov.in
• Patents Act, 1970 (India Code): indiacode.nic.in
• Press Information Bureau note on the revised CRI Guidelines 2025: pib.gov.in
• Judgments: indiankanoon.org
• WIPO, for the international background: wipo.int
• Claw: clawlaw.in

This page is general information, not legal advice. Last verified October 2026.

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