July 24, 2025 by Surbhi Rai
Software often constitutes both technical innovation and creative expression—but these two elements are governed by distinct legal regimes. Understanding whether to pursue patents or copyrights, or both, requires a nuanced, legally-informed strategy.
Copyright protects the code, UI, and documents that embody your invention.
Patent protects the underlying system, algorithm, or technical process implemented by the software.
Making an informed choice impacts enforcement strength, global scalability, and commercial viability.
| Feature | Software Copyright | Software Patent |
|---|---|---|
| Protection Scope | Source code, design docs, UI, visuals | Functional process, system, algorithm |
| Legal Basis | Copyright Act, 1957; Berne Convention | Patents Act, 1970 (Section 3(k), 10, 11A) |
| Requirements | Automatic creation; optional registration | Novelty, inventive step, industrial application |
| Duration | Life of author + 60 years | 20 years from filing |
| Examination Process | Not required; efficient; minimal cost | Formal examination (Form 18), slow and procedural |
| Ideal Use Case | Protecting codebase or UI layout | Protecting inventive algorithm, technical functionality |
| Cost & Complexity | Low | High (drafting + prosecution + claim strategy) |
What Can Copyright Protect?
Source code & compiled code
User interface screenshots & layout designs
Documentation, flowcharts, and manuals
Non-code assets (e.g., icons, UI elements)
Copyright offers broad but narrow protection—it guards against copying of expression, but not ideas or functional methods.
What Can Be Patented?
Patent protection is available for computer-implemented inventions that:
Deliver a technical effect beyond normal software–hardware interaction
Solve a technical problem in a novel and non-obvious way
Do not fall under exclusions like abstract ideas or business methods (Section 3(k) of the Patents Act)
AI‑driven optimization models for network speed or energy efficiency
Blockchain verification systems with secure consensus mechanisms
IoT‑based control software improving device interoperability or autonomy
Global Landmark Judgments Shaping Software Patent Law
While Indian courts have not yet definitively ruled on software patent eligibility, patent examiners consistently reject claims lacking a “technical effect” or those that fall under Section 3(k) of the Patents Act. A recent Federal Court judgment reaffirmed that software per se is unpatentable, unless it demonstrates a novel technical implementation.
Summarizing Principle:
“A computer programme, per se, is unpatentable—but if it yields a technical contribution to hardware, system, or process, it may cross the Section 3(k) exclusion.”
Indications of patentability include:
Measurable improvement in device performance (e.g., latency reduction, compression efficiency)
Enhanced system interoperability or storage—beyond routine computer execution
The U.S. Supreme Court held that claims drawn to an abstract idea, such as financial settlement processes merely implemented on a generic computer, are patent-ineligible. It introduced a two-step test:
Identify whether the claim is directed to an abstract idea.
Determine whether there is an “inventive concept” that transforms it into a patentable invention.
This ruling significantly narrowed the landscape for software patents in the U.S.
A Federal Circuit decision that upheld a patent covering a novel website display technology. The invention was patent-eligible because it solved a specific Internet technology problem in a non-conventional way.
A seminal decision holding that a computer program product may be patentable if it produces a “technical effect” beyond the usual hardware-software interaction. This ruling pivoted away from the “technical contribution” test toward a “whole-content” approach.
Strategy: When to Patent vs Copyright vs Both
Protecting code and UI without novelty requirements
Rapid enforcement via DMCA takedown notices or civil suits
Low-cost protection for open-source, internal tools, or UI designsWhen to Patent
Your invention delivers a technical improvement (e.g., enhanced speed, processing efficiency, security)
Targeting global markets where patent rights carry commercial weight
Facing competitive risk from functional imitation
File a patent on your system/process innovation
Register copyright for code and UI
This dual approach maximizes enforceability across jurisdictions
Common Challenges & Best Practices
Avoid abstract idea traps: Just saying “run it on a computer” is insufficient (per Alice).
Formulate claims around technical effect: Use language referring to hardware interaction or system architecture improvements.
Avoid deceptive or overly broad drafting: Narrow your claims to what you can support with data or configurations.
Use comparative charts: Showcase how your system differs from prior art.
Ensure invention is described technically: Especially for India—document hardware components or signals where possible.
Sample Claim Language (India)
“A method executed by a computing device to reduce memory access latency, comprising: a cache-refresh subroutine triggered by predictive access pattern analysis, where access latency is reduced by at least 20% as compared with prior art systems.”
This phrasing targets a technical effect, avoids abstract business terminology, and ties claims to performance improvements.
Software IP is multifaceted—code merits protection under copyright, while innovative algorithms and system methods may justify patents. Each modality offers distinct legal tools:
Copyright delivers immediate, democratic protection for expressions and creative works.
Patents offer strategic rights over the operation and novelty of your invention—but require careful drafting, legal thresholds, and jurisdictional nuances.
Seek specialized IP counsel to help:
Assess your invention’s technical merits
Compose claims that satisfy eligibility standards
Deploy a dual strategy that covers both code and system innovation
Q1. Can pure app UI design be patented?
👉 Generally no. Copyright protects expression; patents require a technical innovation.
Q2. Does Indian patent law allow AI-based patents?
👉 Yes, if they provide a technical effect or solve a technical problem. Mere algorithms or data processing steps aren’t sufficient.
Q3. If someone rewrites my code but copies my algorithm, what protection?
👉 Copyright won’t help, but a valid patent can if the algorithm meets patent eligibility criteria.
Q4. How do U.S. and Europe differ from India in software patentability?
👉 India rejects non-technical software under Section 3(k). Alice in the U.S. emphasizes abstract ideas, while EPO’s T 1173/97 recognizes software producing “further technical effects” as patentable (epo.org, archive.epo.org, techandmedialaw.com, The Guardian, WIRED).
Q5. Should I register copyright in India?
👉 Not strictly necessary, but registration provides strong evidentiary support in enforcement actions.