Software, SaaS applications, Mobile applications or software, “per se” or software as such are not patentable in India. The Indian Patent Office (IPO) considers software inventions under the category Computer Related Inventions (CRI) for a patent. Therefore, pure software inventions are not patentable in India. But, there is a loophole here.

Software as a combination of hardware & software is patentable. The software alone, as a program as such, is not patentable. If the software is novel but not patentable subject matter, then start-ups should go for copyright protection. Developers and companies can protect software code under copyrights.

In the case of mobile apps, the inventor must consider which element(s) of the app they should protect from copying by competitors. Different IP rights can cover different kinds of aspects of the app. E.g: A patent or copyright can protect the software in conjunction with the hardware that runs the app. Trademarks will protect a unique logo or name of the app. The key is to decide which aspects of the app are worth patenting and which require trademark or copyright.

In the case of Mobile Apps, due consideration to business longevity should also be taken into account. Most Apps go out of trend after 6 months. Patents take more than 12 months to get granted. In such cases, cost and time taken for getting a patent may be more than the business can spend.

Difficulty in getting software patents in India

Section 3(k) of the Indian Patents Act excludes “computer programs per se” or computer programs “as such” from patentable subject matter. Despite this exclusion, a wide range of software is still patentable. Software and computer programs that support the functioning of another device are not per se. IPO considers such inventions for patents.

Inventors face challenges when the claims of a patent are not clearly defined. There should be a relation between a hardware feature and the computer program, algorithm, or logic. In these cases, the instructions or logic remains a computer program as such. 

The grant of a patent related to software inventions is dependent upon how the invention is described in the patent application. Get help from a qualified patent attorney, with a background in Electronics & Computer Science. This will ensure that the patent application meets the technical and legal requirements to be considered by the IPO. And also ensures that the patent office’s objections are handled properly and in a timely manner.

Some precautions for Software patent applications in India

You can get a patent for your software related invention in India, provided you take some care in preparing the patent application.

Write the invention in as much detail as possible. People from the software field should be able to understand your write-up without referring to other sources. You must give a detailed description of its working, coding, and interface with hardware. Also, state its advantages compared to existing solutions. 

To explain the functioning of the invention, add objects and diagrams to give a better representation. Provide flowcharts if that helps to describe the invention better.

It is better to get help from a qualified patent attorney or patent agent with a background in related technology / Software. They will draft the patent application as per legal requirements as well as proper technical representation. And also ensure that the patent office’s objections are handled properly and in a timely manner.

Lastly, do help the patent attorney with any technical answers they may require from time to time to respond to any objections from the patent office.

Note: USA allows patents for software related inventions, with far less restrictions than India. If you are a startup looking to raise funds in the USA, then having patents in the USA is very important.

This article is part of the series IPR Toolkit for Startups in India. The series covers various types of Intellectual Property Rights that startups can get in India. Access all the articles in the series