July 24, 2025 by Sarika Kumari
Yes — but with limitations.
Patent protection for software varies across jurisdictions and is often restricted due to concerns over abstract ideas, algorithms, or business methods.
In India and many other countries, pure software "as such" is not patentable, but software with a technical effect or technical contribution may be eligible.
This guide explains how software patents are treated in India and abroad, what challenges applicants face, and how software patent drafting is different from other fields.
| Country | Software Patentable? | Key Condition |
|---|---|---|
| India | Only if with technical effect | Software per se not allowed under Section 3(k) |
| USA | Yes | Must show utility and pass Alice test |
| Europe (EPO) | Limited | Must solve a technical problem |
| Japan | Yes | Must be part of a concrete hardware process |
| China | Yes | If software controls hardware or produces technical effect |
Section 3(k), Indian Patents Act:
"A mathematical or business method or a computer program per se or algorithms" are not inventions.
This means:
Pure software (e.g., app idea, UI, abstract algorithm) cannot be patented
But embedded software, software with hardware, or software producing a technical effect may be patentable
Interpretation by IP India:
As per CRIs Guidelines (Computer Related Inventions):
Software must have a technical advancement
Must show practical application or industrial use
Not just automation of manual processes
| Challenge | Explanation |
|---|---|
| Section 3(k) objection | Filed under "computer program per se" |
| Lack of technical effect | Application fails to show how software interacts with hardware |
| Lack of inventive step | Algorithms are seen as obvious or generic |
| Jurisdictional confusion | Each country has different rules |
| Abstract claims | Use of general terms without structure or flow |
Unlike mechanical or chemical inventions, software patents require:
| Element | Why It’s Critical |
|---|---|
| Flowcharts / System Diagrams | To show the working process and components |
| Technical Problem & Solution | Must prove how the software improves system performance |
| Functional Descriptions | Describe functions, not just code |
| Hardware Integration | Mention sensors, processors, storage, APIs |
| Avoid Abstract Claims | Replace "software" or "code" with system-level interaction |
“A system comprising a server, a processor, and a machine-readable medium having instructions stored thereon, wherein the instructions when executed cause the processor to identify fraudulent transactions in a financial network based on historical behavioral patterns and generate a real-time risk score.”
Why It Works:
Describes a system, not just code
Involves hardware interaction
Shows technical advancement (fraud detection in real-time)
Do This:
Show how the software improves technology (e.g., better security, faster processing)
Include flowcharts, use-case diagrams, and system architecture
Use terms like “module,” “server,” “processor,” “communication network”
Describe data inputs, outputs, and data flow
Avoid This:
Claiming "a computer program that does X"
Using abstract language (e.g., “a software for automating work”)
Filing only source code or app idea
Skipping integration with hardware or technical functionality
| Country | What Works |
|---|---|
| USA (USPTO) | Must pass Alice two-step test: |
Not an abstract idea
If abstract, must include “significantly more” (e.g., improved tech)
Strong for AI/ML, cybersecurity, fintech, IoT |
| Europe (EPO) | Software patentable if it solves a technical problem in a technical field (e.g., software that improves network throughput or memory access) |
| China | Software patentable if combined with hardware or controls physical entities (e.g., software controlling an industrial process) |
Software Patents Are Possible- If Done Right
While India and many jurisdictions have strict rules, software-based inventions are still patentable if:
They solve a technical problem,
Are integrated with hardware, and
Are drafted clearly with technical effect in mind.
A strong software patent is not about code — it’s about the functional system and its innovative behavior.
Let experienced drafters help you navigate this complex field to secure meaningful protection.
Q1. Can I patent my mobile app?
Not the app itself. But if it involves a technical effect (e.g., new data encryption, energy saving, real-time decision making), then yes.
Q2. Should I copyright or patent software?
Copyright protects the code (expression); patent protects the functionality and idea, if technical.
Q3. Is software with AI patentable in India?
Possibly, if you show the AI improves technical performance or controls a device.
Q4. Can I file a provisional patent for software?
Yes, but it should describe the technical working, not just the concept.
Q5. Can software be patented globally?
Not as a single "global patent", but through PCT with country-specific filings.