Patenting Software, AI and Algorithms in India: A Complete Guide

Section 3(k) of the Patents Act 1970 is read by most founders as a ban on software patents in India. It is not. It excludes four things, and the only one qualified by the words “per se” is the computer programme, which is why an invention delivering a technical solution to a technical problem can be granted even though software executes every step. The framework that decides this changed on 29/07/2025, when the Controller General notified the CRI Guidelines 2025. This report sets out what the law now requires, what the Indian Patent Office actually does, what it costs, how long it takes, and how the outcome is taxed.

Can software be patented in India?

Yes. Section 3(k) of the Patents Act 1970 excludes a computer programme per se, not software-based inventions as a class. Where the claimed invention produces a technical effect or technical contribution, the exclusion does not apply, and no novel hardware is required. Business methods are barred absolutely. The test is applied through the CRI Guidelines 2025, notified on 29/07/2025.

Key findings:

1. Section 3(k) has four limbs, and only computer programme carries the qualifier “per se”.
2. The CRI Guidelines 2025, notified 29/07/2025, supersede the 2017 guidelines and replace the three-step test with four limb-specific tests.
3. Novel hardware is not required, per Raytheon, Delhi High Court, 15/09/2023.
4. Business method claims are barred absolutely, with no technical effect analysis, per OpenTV, Delhi High Court, 11/05/2023.
5. For algorithms, the inventive feature must be the implementation, per Blackberry, Delhi High Court, 30/08/2024.
6. AI-assisted inventions are patentable, AI-generated inventions are not, because an AI cannot be the true and first inventor under Section 6.
7. AI applications fail more often on sufficiency under Section 10(4) than on Section 3(k).
8. The request for examination is due at 31 months for applications filed on or after 15/03/2024, not 48.
9. Official fees to grant are ₹5,600 for a startup and ₹28,000 for others, with renewals of ₹76,800 across the full term for the reduced category.
10. An India-resident inventor filing abroad first without permission risks abandonment under Section 40, revocation under Section 64(1)(n) and prosecution under Section 118.

Section 3(k) of the Patents Act: what is excluded and what is not

Section 3(k) of the Patents Act 1970 excludes four things from patentability: a mathematical method, a business method, a computer programme per se, and algorithms. It does not exclude software-based inventions as a class. The qualifier “per se” attaches to computer programme alone, which is why an invention that delivers a technical solution to a technical problem can be granted in India even though software executes it.

That sentence carries the whole commercial question for a software company in India. A patent is available, but only for the layer of the product that does technical work, and only if the specification and claims are built to show it. Everything else in this report follows from where that line sits.

What does Section 3(k) actually say?

The clause is one line. Section 3 of the Patents Act 1970 lists what are not inventions within the meaning of the Act, and clause (k) covers “a mathematical or business method or a computer programme per se or algorithms”. The wording came in through the Patents (Amendment) Act 2002 (No. 38 of 2002), which took effect on 20/05/2003, and it has not changed since.

The Controller General’s Guidelines for Examination of Computer Related Inventions 2025, notified on 29/07/2025, read the clause as containing four separate limbs rather than one composite exclusion (para 3.4). That reading matters, because each limb has its own test and its own outcome. A claim can clear the computer programme per se limb and still fail on the business method limb.

Section 3(k) also does not travel alone in an examination report. For software inventions the Indian Patent Office frequently raises the neighbouring clauses in the same objection: clause (m) for a mere scheme or rule or method of performing a mental act or a method of playing a game, clause (n) for a presentation of information, and clause (l) for literary and artistic works. An invention whose contribution stops at what the user sees on screen usually attracts clause (n) alongside clause (k).

Table 1: The four limbs of Section 3(k)

Limb	Statutory words	Is it qualified by “per se”	Controlling authority	Typical claim that fails
Mathematical method	“a mathematical or … method”	No	Microsoft Technology Licensing v Assistant Controller, Madras High Court, (T) CMA (PT) No. 49 of 2023, 03/07/2024	A system that applies a formula to two datasets and outputs a score
Business method	“a … business method”	No, absolute bar	OpenTV Inc v Controller of Patents and Designs, Delhi High Court, C.A. (COMM.IPD-PAT) 14/2021, 11/05/2023	A dynamic pricing engine that applies commercial rules to bid data
Algorithm	“or algorithms”	No	Blackberry Limited v Assistant Controller, Delhi High Court, C.A. (COMM.IPD-PAT) 229/2022, 30/08/2024	A sequence of steps with no disclosed technical implementation
Computer programme per se	“a computer programme per se”	Yes	Ferid Allani v Union of India, Delhi High Court, W.P.(C) 7/2014, 12/12/2019, and Raytheon Company v Controller General, C.A. (COMM.IPD-PAT) 121/2022, 15/09/2023	A claim to instructions stored on a computer readable medium

What does “computer programme per se” mean?

“Per se” is not defined in the Patents Act. The Madras High Court supplied the working meaning in Microsoft Technology Licensing v Assistant Controller (03/07/2024, para 25), taking Black’s Law Dictionary and reading the phrase as something considered “standing alone, without reference to additional facts”.

Applied to a patent claim, that produces a narrow exclusion. The CRI Guidelines 2025 treat the following as caught by the computer programme per se limb (para 4.5.4): claims to a computer programme, a set of instructions, routines or sub-routines on their own, and claims to a computer programme product, a storage medium carrying instructions, a database, or a computer memory with instructions stored on a readable medium. What is excluded is the claim format that protects the code and nothing else.

A claim is not saved by adding a processor and a memory to the preamble. The guidelines direct the examiner to read the claim as a whole and decide on its substance, not its label, and a claim in any format falls if its substance sits in an excluded category (para 4.5). The corollary is the part founders tend to miss: a claim is also not lost merely because software performs every step.

Why does Section 3(k) read the way it does?

The clause is the residue of a legislative argument that was never settled, which is why it reads as it does.

1. The Patents (Second Amendment) Bill 1999 proposed excluding computer programmes without qualification.
2. The Joint Committee of Parliament, whose report was laid before both Houses on 19/12/2001, recommended adding “per se”. Its reasoning was that a computer programme may include other things ancillary to it or developed on it, and that those should not be refused a patent if they are inventions, while computer programmes as such were not intended to be patented.
3. The recommendation was accepted, and the Patents (Amendment) Act 2002 took effect on 20/05/2003 with the present wording.
4. The Patents (Amendment) Ordinance 2004, promulgated on 27/12/2004 and effective 01/01/2005, went further. It split the clause in two and would have excluded a computer programme per se “other than its technical application to industry or a combination with hardware”, moving mathematical methods, business methods and algorithms into a new clause 3(ka).
5. That Ordinance was not ratified. The Patents (Amendment) Act 2005 restored the 2002 language, and Section 3(k) has read the same way ever since.

Parliament therefore declined twice to define the boundary, once by choosing a qualifier over a definition and once by rejecting the definition the Ordinance offered. The line has been drawn instead by the High Courts from 2019 onwards and, since 29/07/2025, by the CRI Guidelines 2025 built on those decisions. For an applicant this has a practical consequence: the governing framework is judicial and administrative, it moves, and a drafting approach that worked in 2019 is not automatically safe today.

Is Section 3(k) the same as the exclusions in Europe and the United States?

No, and the differences run in both directions.

The European Patent Convention excludes programs for computers under Article 52(2)(c), but Article 52(3) applies the qualifier “as such” to every category in the list, business methods included. India applies its qualifier to one limb only. The Delhi High Court drew the consequence expressly in OpenTV: the bar on business method patents in India is absolute, and arguments about technical effect, technical advancement or implementation that succeed before the European Patent Office do not transfer (paras 67, 72 and 73).

The United States has no statutory list of excluded subject matter. Eligibility is worked out under 35 U.S.C. 101 through the judicially created abstract idea framework, which asks a different question in a different order.

Two things follow for an Indian filing. A patent granted in the United States, Europe, China or Japan on the same family carries no weight as an answer to a Section 3(k) objection, and applicants who argue from foreign grants alone tend to lose. Equally, where a Controller refuses an Indian application by adopting a foreign office’s reasoning without independent analysis, that has repeatedly formed a ground of appeal before the High Court. The Section 3(k) question has to be decided on the Indian text.

The two-layer test every computer related invention has to clear

An Indian patent application for a software invention is tested on two independent layers. The first asks whether the claimed subject matter is excluded under Section 3, and for a computer related invention that means Section 3(k). The second asks whether it is an invention at all under Section 2(1)(j), that is new, involving an inventive step and capable of industrial application, and whether the specification discloses it sufficiently under Section 10. Failing either layer refuses the application.

Founders usually arrive with the second layer in mind. They have built something nobody else has built, and they expect the argument to be about whether it is new. For computer related inventions the argument is almost always about the first layer instead, and the two are decided on different material. Novelty is decided against prior art. Eligibility is decided against the claim itself.

What counts as an invention under Indian patent law?

Three definitions do the work, and they are worth reading in sequence.

Section 2(1)(j) defines an invention as a new product or process involving an inventive step and capable of industrial application. Section 2(1)(ja) defines inventive step as a feature that involves technical advance compared to existing knowledge, or has economic significance, or both, and that makes the invention not obvious to a person skilled in the art. Section 2(1)(ac) defines capable of industrial application as capable of being made or used in an industry.

Two features of that drafting matter for software. The Indian definition of inventive step carries the words “technical advance” inside the statute itself, which is part of why the technical effect enquiry sits so naturally in Indian practice. And industrial applicability requires a practical application disclosed in the specification, so a speculative or vaguely indicated use does not satisfy it, a point the CRI Guidelines 2025 make expressly at para 4.3.

What is a computer related invention?

The Indian Patent Office uses the term computer related invention, or CRI, rather than software patent. The CRI Guidelines 2025 define the category as inventions involving the use of computers, computer networks or other programmable apparatus and techniques related to them, including inventions with one or more features realised wholly or partially by computer hardware or software (para 1.2).

That definition is deliberately wide. It captures a SaaS backend, an embedded controller, a telecom baseband process, a payment terminal, a machine learning pipeline and an industrial automation system alike. CRIs make up the largest single proportion of patent filings in India, which is why examination consistency in this area attracted the attention it did before the 2025 guidelines were issued.

The five gates, in the order the Patent Office applies them

1. Excluded subject matter. Section 3, and for software Section 3(k) read with Sections 3(l), 3(m) and 3(n). Decided on the substance of the claim read as a whole.
2. Novelty. Section 2(1)(j). Assessed against prior art anywhere in the world, published or in public use before the priority date. The CRI Guidelines 2025 adopt the seven-step novelty framework set out by the Delhi High Court in Telefonaktiebolaget LM Ericsson v Lava International (para 4.1).
3. Inventive step. Section 2(1)(ja), applied through the five-step analysis endorsed in the same decision and anchored in Biswanath Prasad Radhey Shyam v Hindustan Metal Industries.
4. Industrial applicability. Section 2(1)(ac). Rarely fatal on its own, but it is the provision that catches a specification offering only a possible future use.
5. Sufficiency of disclosure. Section 10(4), which requires the specification to describe the invention fully and particularly and to disclose the best method of performing it, and Section 10(5) on clarity, succinctness and unity of invention.

The guidelines are explicit that the examination procedure for CRIs is the same as for any other field on novelty, inventive step, industrial applicability and sufficiency, and that the additional work sits in determining whether the subject matter is excluded (para 4). That is a useful sentence to have in hand during prosecution, because it means an examiner cannot apply a higher novelty standard to a software application than to a mechanical one.

Why a genuinely novel invention still gets refused

Section 3 operates independently of Section 2. An invention can be new, non-obvious and commercially valuable, and still be refused because its substance sits inside an excluded category. Nothing about the strength of the innovation cures that. This is the single most common surprise in a first examination report on a software application, and it is why the drafting work described later in this report happens before filing rather than after the report arrives.

The reverse holds too, and it costs applicants money in a different way. Clearing Section 3(k) does not produce a grant. Software is among the most crowded prior art fields in the world, and the material that defeats novelty is frequently non-patent literature, a conference paper, an open source repository, a product changelog. An application drafted entirely around the technical effect argument, with no serious prior art work behind it, tends to clear the first layer and fail the second.

The technical effect test and the case law that built it

Indian courts settled on a single operative question for computer related inventions: does the claimed invention produce a technical effect or make a technical contribution. If it does, the computer programme per se exclusion does not apply, and no novel hardware is needed to get there. The business method limb is the exception, and no technical effect argument reaches it. This section traces how that position was built, decision by decision, and what each one changed for an applicant.

The reason to read the sequence rather than a summary is that examination practice lags the case law. An objection raised in 2026 can still rest on reasoning a High Court discarded in 2023, and the answer to it is a specific paragraph in a specific judgment.

Ferid Allani, 2019: the arrival of the technical effect test

Ferid Allani’s application for a method and device for accessing information sources through a computer was refused, and the refusal reached the Delhi High Court on writ. The Court held that patent offices across jurisdictions test applications in this field on the fulcrum of technical effect and technical contribution, and that an invention demonstrating either is patentable even though it is based on a computer programme (para 11).

What it changed: it displaced the reading that any claim touching software was caught by Section 3(k). Every later decision starts here, and it remains the most cited authority in Indian FER responses on software applications.

OpenTV, 2023: the business method bar is absolute

OpenTV’s application was refused as a business method. On appeal the Delhi High Court examined the drafting difference between Indian law and UK and European law. In the EPC the qualifier applies to every excluded category. In India the words “per se” attach to computer programme alone and not to business methods. The Court held that the bar on business method patents in India must be read as absolute, without any analysis of technical effect, implementation, technical advancement or technical contribution, and that the only question is whether the application addresses a business or administrative problem and offers a solution to it (paras 67, 72, 73).

What it changed: it closed the route most fintech, marketplace and commerce applicants try first. Arguments drawn from European decisions on the technical character of a business method invention do not work in India. The work has to be done at the level of what the invention is, not how it is argued.

Raytheon, 2023: novel hardware is not required

Raytheon’s appeal addressed an objection that had shaped Indian practice for a decade, that a software invention needed new hardware to escape Section 3(k). The Delhi High Court held that the patent office must examine whether there is a technical contribution or what technical effect the invention generates, and described the requirement of novel hardware as a higher standard that lacks any basis in law (para 21).

What it changed: it removed the most common and most expensive objection of the period. The CRI Guidelines 2025 adopt the position expressly, and an FER still demanding novel hardware is answerable with this paragraph.

Lava v Ericsson, 2024: structure for novelty and obviousness

This was an infringement suit over telecom standard essential patents rather than a Section 3(k) appeal, but it supplied the analytical scaffolding the Patent Office now uses. The Delhi High Court set out a seven-step approach to assessing novelty, referred to as the Seven Stambhas, running from claim construction through identification and analysis of prior art to documentation of the finding, and emphasised a five-step analysis for inventive step.

What it changed: it gave applicants a procedural standard to hold examiners to. A novelty objection that does not identify explicit or implicit disclosure in the cited art, or that blends novelty with obviousness, is now challengeable on a recognised framework. The detailed application of both frameworks in examination sits in the next section of this report.

The Microsoft line, 2023 and 2024

Three decisions, two courts, one direction of travel.

In the Delhi High Court decision of 15/05/2023, the Court found that the claimed solution went beyond the user interface level and produced a technical effect and contribution, noting that the use of cookies and two factor authentication was fundamental to the functioning of computer networks and closer to the heart of computer and network technology than to interface design (para 41).

In the Delhi High Court decision of 16/04/2024, the Court framed the test an applicant has to meet: the method and system, when implemented on a general purpose computer, must contribute directly to a specific and credible technical effect or enhancement beyond general computing processes, and the inventive contribution must achieve a technical advantage clearly distinct from ordinary operations expected of such systems (paras 33 to 35). On the facts, integrating lapped transforms and reversible overlap operators into a processor and data storage buffer for media compression transformed general purpose hardware into a specialised apparatus, which satisfied the test.

In the Madras High Court decision of 03/07/2024, the Court addressed the mathematical method limb and held that the mere presence of a mathematical formula in a claim does not make it a mathematical method claim, while a method of calculation or the formulation of equations at the idea level remains excluded. It also held that where a claimed invention improves the system’s functioning and efficacy, or provides a technical solution to a technical problem not limited in impact to a particular application or dataset, it surmounts Section 3(k) (para 36).

What they changed: together they set the bar at a specific and credible technical effect on a general purpose machine, and they confirmed that a formula in a claim is not fatal.

Ab Initio, 2024: what technical effect actually means

The Delhi High Court gave the phrase working content. Technical effect is the bridge between an input and the processor. If an ingenious input system or method allows the processor to produce a more efficient and faster output and computation, the effect is technical. It is not confined to hardware tweaks or physical transformation, and an innovative input in the form of a process, system or method that enhances the computational ability of the processor produces a technical effect, provided it goes beyond the usual user interface (para 38).

What it changed: it gave applicants a formulation that does not depend on physical machinery, which matters for pure infrastructure software, databases, compilers and networking.

The two Blackberry decisions of 30/08/2024

Two appeals decided on the same day point in different directions, and reading both is more instructive than reading either.

In the first, concerning the algorithm limb, the Court held that where an invention relates purely to a set of instructions or policies determining flow without substantial change in the hardware, it is not entitled to patent protection even if it affects how data flows. Where those instructions are implemented through software written for the purpose and produce a technical effect or contribution, the test applicable to computer software applies, and in such a case the inventive feature has to be the implementation and not the algorithm itself (paras 48, 52).

In the second, concerning auto-selection of media files, the Court found technical implementation and a definitive effect through the user’s device, and treated the exclusion as applying only where an invention lacks technical effect or contribution.

What they changed: they located the dividing line at implementation. The same subject matter passes or fails depending on whether the specification discloses how the algorithm is realised in a system. That is a drafting outcome, not a legal one, which is the point of the pairing.

Caleb Suresh Motupalli, 2025: enablement as the real obstacle for AI

The Madras High Court dismissed an appeal concerning an AI-related invention not on Section 3(k) but on disclosure. The Court held that the complete specification coalesced disclosures from patent and non-patent literature without teaching how the underlying techniques were to be adopted for the claimed result, that undue experimentation involving inventive faculty would be needed to work the invention, and that the application therefore failed Section 10(4)(a) and Section 10(4)(b). It also addressed who the notional person skilled in the art is for an interdisciplinary AI invention (paras 21 to 32).

What it changed: it confirmed that for AI applications the harder gate is often sufficiency rather than eligibility. This is developed in the AI section of this report.

Kroll Information Assurance, November 2025: hardware embedding is not a shortcut

The Delhi High Court upheld a refusal of an application concerning detection of unauthorised file sharing on peer to peer networks. The appellant argued technical effect through improved security infrastructure and relied on the Lava and Microsoft decisions, and pointed to grants on the same invention in other jurisdictions. The Court found the reliance misplaced, applied the reasoning of the Blackberry algorithm decision, and held that embedding an algorithm in hardware does not by itself confer patentability where there is no technical advancement.

What it changed: it is the most recent reminder that the technical effect test is a substantive enquiry, not a drafting formula, and that a foreign grant does not travel.

Table 2: Section 3(k) case law and what each decision changes for an applicant

Case	Court and date	Limb engaged	Holding in one line	Consequence for drafting
Ferid Allani v Union of India, W.P.(C) 7/2014	Delhi HC, 12/12/2019	Computer programme per se	Technical effect or technical contribution makes a computer programme based invention patentable	State the technical effect in the specification, do not leave it to argument
Microsoft Technology Licensing v Assistant Controller, C.A. (COMM.IPD-PAT) 29/2022	Delhi HC, 15/05/2023	Computer programme per se	A solution operating at network protocol level rather than interface level is patentable	Locate the invention below the interface layer
OpenTV Inc v Controller, C.A. (COMM.IPD-PAT) 14/2021	Delhi HC, 11/05/2023	Business method	The business method bar is absolute and unqualified by per se	Do not attempt a technical effect argument on a commercial method
Raytheon v Controller General, C.A. (COMM.IPD-PAT) 121/2022	Delhi HC, 15/09/2023	Computer programme per se	A novel hardware requirement lacks any basis in law	Answer novel hardware objections with this paragraph
Telefonaktiebolaget LM Ericsson v Lava International, CS(COMM) 65/2016	Delhi HC, 28/03/2024	Novelty and inventive step	Seven-step novelty approach and five-step inventive step analysis	Hold examiners to a structured novelty finding
Microsoft Technology Licensing v Assistant Controller, C.A. (COMM.IPD-PAT) 185/2022	Delhi HC, 16/04/2024	Computer programme per se	The effect must be specific, credible and beyond general computing processes	Quantify the enhancement and tie it to named components
Microsoft Technology Licensing v Assistant Controller, (T) CMA (PT) No. 49 of 2023	Madras HC, 03/07/2024	Mathematical method	A formula in a claim does not make it a mathematical method claim	A formula may be recited to define scope, not as the invention
Ab Initio Technology v Assistant Controller, C.A. (COMM.IPD-PAT) 26/2021	Delhi HC, 30/07/2024	Computer programme per se	Technical effect is the bridge between input and processor, and need not be physical	Claim computational improvement as the effect where that is the truth
Blackberry v Assistant Controller, C.A. (COMM.IPD-PAT) 229/2022	Delhi HC, 30/08/2024	Algorithm	Instructions without substantial hardware change are excluded, implementation is the inventive feature	Disclose the implementation, not the logic
Blackberry v Assistant Controller, C.A. (COMM.IPD-PAT) 318/2022	Delhi HC, 30/08/2024	Computer programme per se	Exclusion applies only where technical effect or contribution is absent	Show the effect at device level
Caleb Suresh Motupalli v Controller, C.M.A. (PT) No. 2 of 2024	Madras HC, 29/01/2025	Sufficiency, Section 10(4)	Assembling published literature around an AI use case is not enablement	Teach the method, do not describe the ambition
Kroll Information Assurance v Controller General	Delhi HC, November 2025	Algorithm	Embedding an algorithm in hardware without technical advancement does not confer patentability	Foreign grants and hardware recitation are not substitutes for contribution

Where the law sits?

Four propositions are settled enough to build a filing strategy on. Technical effect or technical contribution is the test for the computer programme per se, algorithm and mathematical method limbs. Novel hardware is not required. Business methods are barred absolutely. For algorithms, the inventive feature has to be the implementation.

Two areas remain unsettled and should be treated as live risk rather than settled law. The first is how much technical effect is enough, where the two Blackberry decisions and Kroll show real variation on comparable facts. The second is how the enablement standard applied in Caleb Suresh Motupalli will be applied to machine learning specifications at scale, now that the CRI Guidelines 2025 have raised what an applicant is expected to disclose.

The CRI Guidelines 2025: the framework the examiner applies

The Guidelines for Examination of Computer Related Inventions 2025 were notified by the Controller General on 29/07/2025 and supersede the CRI Guidelines 2017. They run to 63 pages, cite 19 decisions, and replace the old single three-step test with four separate step tests, one for each limb of Section 3(k), each with a flowchart and worked examples. Any advice still built on the 2017 three-step test is working from a withdrawn framework.

The consultation ran through three versions: draft v1.0 on 25/03/2025, revised draft v2.0 on 26/06/2025, and the final text on 29/07/2025, with stakeholder sessions in Chennai, Delhi, Kolkata and Mumbai. The guidelines are not rule making, and the Act and the Rules prevail in the event of conflict (para 1.4).

The four step tests

Table 3: The four limb tests under the CRI Guidelines 2025

Limb	Step 1	Step 2	Excluded if	Guidelines example that fails	Guidelines example that passes
Mathematical method, para 4.5.1	Construe the substance of the claim	Is the solution abstract mathematical processing, or is the calculation part of a larger technical process	The calculation is the objective	System calculating a compatibility index between two datasets	Robotic arm control using inverse kinematics to drive actuators
Business method, para 4.5.2	Construe the substance and locate the core	Is the core a commercial or administrative strategy, or a technical improvement using business context only as a constraint	The core is commercial	Dynamic pricing engine applying business rules to advertisement bid data	NFC tap and pay processing at a point of sale with secure protocol authentication
Algorithm, para 4.5.3	Identify the series of steps	Are the steps abstract, or enabled with the technical specifics needed to implement them	The steps are abstract	Pseudo-random number generation by applying permutations to a seed	The same generation inside a hardware security module on a network interface card feeding AES-GCM encryption
Computer programme per se, para 4.5.4	Construe as a whole and identify essential technical features	Identify the problem and solution, then ask whether the technicality produces a technical effect beyond an incidental one	No technical effect	Recipe management system with search, scaling and shopping lists	Adaptive network optimiser adjusting transmission parameters in real time to hold throughput

Read across the four rows and the pattern is consistent. The guidelines do not ask what the invention is made of. They ask what the invention is for, and whether the specification shows how it gets there.

What takes a claim out of the exclusion, and what keeps it in

The guidelines carry two non-exhaustive lists, at Tables 1 and 2 of the document.

Table 4: Guidelines Tables 1 and 2, compressed

Takes the claim out of the exclusion	Keeps the claim inside it
Faster data processing through implementation of the algorithm or system architecture	Computer instructions or code in isolation, or a computer programme product
Reduced data access time, improved caching, optimised disc input and output scheduling	Software defined only by its storage medium
Better memory utilisation or allocation	Data structures detached from a technical process, for example a new file format with no efficiency gain
Improved data compression rates or speeds	Conversion of a manual task to computer execution with no technical gain, for example automated bookkeeping
Stronger authentication, encryption or intrusion detection	Presentation of data visually or textually, dashboards, report layouts
Allocation of CPU, bandwidth or cloud resources	Rules for games, puzzles and teaching methods
Improved error detection and correction in storage or transmission	Systems mimicking human reasoning with no technical implementation
Control of robots, industrial units, 3D printers, drones and autonomous vehicles	Aesthetic or artistic generation
Improved signal reception, transmission, filtering or modulation	Symptom correlation and rule-based medical decision trees
Efficient training of models or inventive network architectures reducing computational cost for a technical task	Standard database lookups and preference-based playlist or content recommendation

Claim format, means plus function and sufficiency

Three operational points from the guidelines change how applications are drafted.

Section 3(k) does not restrict a CRI to only method claims or only system claims. Where the specification supports both, both may be allowed as independent claims (para 4.4.2). Means plus function claims are allowed only where the specification discloses the corresponding structure, hardware, firmware or a software module, that performs the function, and the means are limited to what is disclosed (para 4.4.3). Sufficiency is tested on two questions, the what and the how: the invention described fully and particularly with flowcharts and the working relationship of components, and the best method of performing it, under Section 10(4)(a) and (b).

On novelty the guidelines adopt the seven-step Lava framework, and on inventive step the five-step analysis built on Biswanath Prasad Radhey Shyam and applied in F. Hoffmann-La Roche v Cipla. The practical use of both is defensive. An objection that collapses novelty into obviousness, or that does not identify explicit or implicit disclosure in the cited art, is answerable on the guidelines’ own terms.

References: CRI Guidelines 2025, paras 1.4, 4, 4.1, 4.2, 4.4.2, 4.4.3, 4.5.1 to 4.5.4, Tables 1 and 2, Annexure I. Patents Act 1970, Section 10(4), 10(5).

AI and machine learning: inventorship, eligibility and disclosure

AI-assisted inventions are patentable in India. AI-generated inventions are not. The CRI Guidelines 2025 state that an invention created autonomously by an AI system, or with very limited human intervention, cannot be patented because an AI cannot be a person claiming to be the true and first inventor under Section 6 of the Patents Act 1970. An invention made using AI as a tool in the inventive process is not categorically excluded under Section 3(k), provided it meets the patentability criteria and shows technical effect through a tangible application (para 5.2.1).

Where AI applications actually fail

Not on Section 3(k). On Section 10.

The guidelines record the recurring problem plainly: in AI, published future vision statements and unrealised possibilities make it possible for a prospective use case to be extrapolated and presented as a solution without the specific detail that would let anyone build it (para 5.2.2). The Madras High Court applied that standard in Caleb Suresh Motupalli on 29/01/2025, holding that a specification which coalesces patent and non-patent literature without teaching how those techniques deliver the claimed result fails enablement under Section 10(4)(a), and fails the best method requirement under Section 10(4)(b), because undue experimentation requiring inventive faculty would be needed to work it.

The disclosure checklist for an AI or ML specification

1. The model architecture with structural detail, not the label. Layer types, depth, connectivity, activation, attention mechanism where used.
2. The training data: source, size, modality, labelling method, class balance.
3. The pre-processing and feature engineering pipeline.
4. Training parameters: loss function, optimiser, learning rate schedule, stopping criteria.
5. Validation results tied to the claimed technical effect, with the baseline compared against.
6. The hardware and deployment context where the effect is realised.
7. The technical problem stated as a technical problem, not a business outcome.
8. Flowcharts and the working relationship between modules.
9. Best mode of performing the invention, expressly.
10. Fallback dependent claims narrowing to the specific architecture and data pipeline.

What gets granted and what does not

Granted work sits where the effect is measurable on a machine or a process: training efficiency, inference on constrained hardware, model compression, sensor fusion, network optimisation, predictive maintenance, medical image analysis with a quantified accuracy or throughput gain. Refused work sits where the model is conventional and only the domain is new: a known architecture on a fresh dataset, recommendation engines, scoring models, symptom matching, anything whose effect is delivered to a user rather than to a system.

References: CRI Guidelines 2025, paras 5.1, 5.2, 5.2.1, 5.2.2. Patents Act 1970, Sections 6, 10(4)(a), 10(4)(b), 10(5). Caleb Suresh Motupalli v Controller of Patents, Madras High Court, C.M.A. (PT) No. 2 of 2024, 29/01/2025, paras 21, 23, 24, 26, 30 to 32.

Blockchain, quantum computing and the business method wall

For fintech, marketplace and commerce inventions the decisive question is not technical effect. It is whether the core of the claim is a commercial method, because the business method limb carries no per se qualifier and admits no technical effect analysis. The guidelines apply this at para 4.5.2 and reinforce it with the point that the presence of words such as enterprise, supply chain, order, sales, transaction, commerce or payment does not by itself make a claim a business method, and their absence does not save one.

The line the guidelines draw is between a scheme for revenue generation or customer management and a technical improvement to the infrastructure that happens to operate in a commercial setting. A method for a bank to calculate a tiered service fee from account balance and transaction volume is a business method. A cryptographic technique securing transmission during online banking, or a process that cuts transaction processing time inside the bank’s server architecture, is not.

Table 5: Sector patterns under the business method limb

Sector	Claim founders usually bring	Limb engaged	Framing that survives
Payments	A new settlement or pricing flow	Business method, absolute bar	Terminal, protocol or authorisation-layer improvement with measured latency or security effect
Lending and insurance	A scoring or underwriting model	Business method and algorithm	Data pipeline or model deployment improvement with a measured computational effect
Marketplaces	Matching buyers and sellers	Business method	Indexing, retrieval or distributed consistency improvement
Blockchain	A tokenised commercial scheme	Business method	Consensus, key management, throughput or storage improvement, guidelines para 5.4
Quantum	A theoretical advantage claim	Mathematical method and sufficiency	Implementable technical solution with enough detail to reproduce, guidelines para 5.3
SaaS platforms	The workflow the product automates	Computer programme per se	The system-level mechanism underneath the workflow

For blockchain and quantum the guidelines add a disclosure dimension rather than a new exclusion. Both rest on cryptographic and mathematical constructs, so examination focuses on whether the specification shows an implementable technical solution or stays in the realm of theory reproducible only by further invention.

References: CRI Guidelines 2025, paras 4.5.2, 5.1, 5.3, 5.4. OpenTV Inc v Controller, Delhi High Court, C.A. (COMM.IPD-PAT) 14/2021, 11/05/2023.

Drafting a specification that survives Section 3(k)

Patentability for a software invention is decided by drafting more than by invention. The examiner reads the claim as a whole and asks what the invention is for. A specification that opens with the market problem and describes the product will attract a Section 3(k) objection even where the underlying mechanism would have cleared it.

Claim architecture

File independent method and system claims where the specification supports both. Recite named components in the system claim and give each means a disclosed structure. Build the dependent ladder downwards from the broad claim through the specific mechanism, then the specific implementation, then the measured parameter, so that each objection has a fallback that does not require new matter. This matters because Section 59 permits amendment only by way of disclaimer, correction or explanation, and only within the scope of the claims as filed. A Section 3(k) rescue by amendment after the first examination report is limited to what the specification already contains.

Specification architecture

Open on the technical problem in the technical field. State the prior art limitation as a technical limitation. Describe the mechanism with flowcharts and the working relationship between components. Include a dedicated technical effect passage with quantified improvement against a named baseline. Close with the best method of performing the invention.

Language to strike from a draft

• Optimises revenue, improves conversion, reduces operational cost, enhances customer engagement
• Business rules, pricing logic, workflow, user preference, recommends, ranks
• Computer readable medium storing instructions, as a claim category on its own
• Displays, presents, visualises, dashboard, as the terminal step of a claim
• A machine learning model, used without architectural detail

The substitution that does the work

Replace the business outcome with the system effect. “A method for reducing payment failures” becomes “a method for reducing authorisation latency in a transaction processing pipeline by pre-computing routing state at the terminal”. Same invention, different claim, different outcome.

References: Patents Act 1970, Sections 10(4), 10(5), 57, 59. CRI Guidelines 2025, paras 4.4.1 to 4.4.3, 4.5.

Prior art search and patentability assessment

For computer related inventions the prior art that defeats novelty is more often a paper, a repository or a product release note than a patent. A search confined to patent databases is not a search.

Cover InPASS for Indian filings, Espacenet, PATENTSCOPE, the USPTO database and Google Patents for the patent literature, and then arXiv, IEEE Xplore, the ACM Digital Library, GitHub, conference proceedings and product changelogs for the non-patent literature. For AI work, preprints routinely predate filings by months.

Table 6: Search types and what each answers

Search	Question answered	Typical turnaround
Knock-out or novelty search	Has this been done before	1 to 2 weeks
Patentability opinion	Is it likely to clear Sections 2(1)(j), 2(1)(ja) and 3(k)	2 to 3 weeks
Freedom to operate	Can we ship without infringing	4 to 8 weeks
Invalidity or validity search	Can this patent be challenged or defended	4 to 6 weeks

Patentability and freedom to operate answer different questions, and a grant does not clear the right to ship.

The filing process, step by step

An Indian patent application runs through ten stages, each with a statutory hook and a deadline. Jurisdiction is territorial: applications are filed at the patent office at Delhi, Mumbai, Chennai or Kolkata by reference to the applicant’s address for service, place of business or domicile, and the file stays with that office.

Table 7: Stages, provisions and deadlines

Stage	Provision	Deadline	Extendable
Provisional or complete specification filed	Sections 7, 9, 10	Complete within 12 months of provisional	No, but Rule 138 relief may apply
Statement and undertaking on foreign applications	Section 8(1), Form 3	At filing or within 6 months, then within 3 months of the FER	Yes, 3 months
Publication	Section 11A	18 months from priority	Early publication on Form 9
Request for examination	Section 11B, Rule 24B, Form 18	31 months from priority for applications filed on or after 15/03/2024, 48 months for earlier filings	Rule 138, at ₹10,000 per month for the reduced category
First examination report and reply	Rule 24B(5) and (6)	6 months from the FER	Yes, 3 months on Form 4 at ₹1,000 per month for the reduced category
Hearing	Section 14, Rule 129A	Notice of at least 10 days, written submissions within 15 days of the hearing	Adjournment on request at ₹1,000
Pre-grant opposition	Section 25(1), Rule 55, Form 7A	Any time after publication and before grant	Not applicable
Grant	Section 43	On the Controller being satisfied	Not applicable
Post-grant opposition	Section 25(2), Form 7	Within 12 months of publication of grant	Not applicable
Renewal	Section 53, Form 4	Annually from the third year	6 months on Form 4, then restoration under Section 60

Two structural options sit alongside the main sequence. A divisional application may be filed under Section 16 at any time before grant where the claims disclose more than one invention, and the examination request for a divisional is due within 31 months of the parent filing or 6 months of the divisional filing. Amendments under Sections 57 and 59 are available before and after grant, at ₹800 and ₹1,600 respectively for the reduced category.

Since the Patents (Amendment) Rules 2024, a pre-grant representation carries a fee, ₹4,000 for the reduced category and ₹20,000 for others on Form 7A, and the Controller first considers whether a prima facie case is made out before issuing notice to the applicant.

Table 8: Forms directory

Form	Purpose	Fee, reduced category	Fee, others
1	Application for grant of patent	₹1,600	₹8,000
2	Provisional or complete specification	No fee up to 30 pages and 10 claims	Same
3	Statement and undertaking under Section 8	No fee	No fee
4	Extension of time	₹480 to ₹10,000 per month by provision	₹2,400 to ₹50,000 per month
5	Declaration as to inventorship	No fee	No fee
7	Post-grant opposition	₹8,000	₹40,000
7A	Pre-grant representation	₹4,000	₹20,000
8A	Certificate of inventorship, Rule 70A	₹900	Not applicable
9	Request for early publication	₹2,500	₹12,500
13	Amendment before grant	₹800	₹4,000
13	Amendment after grant	₹1,600	₹8,000
15	Restoration under Section 60	₹2,400	₹12,000
16	Recordal of assignment or licence	₹1,600 per patent	₹8,000 per patent
18	Request for examination	₹4,000	₹20,000
18, Rule 20(4)(ii)	Examination request on a PCT national phase case	₹5,600	₹28,000
18A	Expedited examination, Rule 24C	₹8,000	₹60,000
18A	Conversion from Form 18 to 18A	₹4,000	₹40,000
25	Permission to apply for a patent outside India, Section 39	₹1,600	₹8,000
26	Authorisation of a patent agent	No fee	No fee
27	Statement of working	No fee	No fee
28	Claim to startup or small entity status	No fee	No fee
29	Withdrawal of application	No fee	No fee
31	Grace period claim, Rule 29A	₹500	₹2,500
32 and 33	Complaint and appeal on adjudication of contraventions	Per the Patents (Amendment) Rules 2025	Same

All figures are e-filing rates from the First Schedule to the Patents Rules 2003. Physical filing costs roughly 10 percent more, so e-filing is the base rate and not a discount.

References: Patents Act 1970, Sections 7, 8, 9, 10, 11A, 11B, 14, 16, 25, 43, 53, 57, 59, 60. Patents Rules 2003, Rules 20, 24A, 24B, 24C, 55, 70A, 129A, 131, 138, First Schedule. First Schedule, official fee table.

How long a software patent takes in India

Expect 3 to 5 years from filing to grant on the standard route and 9 to 18 months on the expedited route. Computer related inventions sit at the slower end of both, because a Section 3(k) objection in the first examination report is close to standard and adds a response cycle and often a hearing.

The reported system-level numbers explain why. The Controller General’s Annual Report 2024-25 records 33,504 patents granted in FY 2024-25 against 103,057 in FY 2023-24, and 90,971 examination requests filed against 15,726 applications examined in the same year. The drop followed the promotion of a large number of examiners to controller after a 2023 reorganisation and a delay in replacement recruitment. The office inducted 407 examiners in January 2025 following a four-month induction programme.

For an application filed now, the operative reading is that the first examination report is the bottleneck, not the grant decision, and that the expedited route under Rule 24C is the only prescribed way to move position in that queue.

References: CGPDTM Annual Report 2024-25.

Expedited examination and the fast-track routes

Form 18A under Rule 24C is the only mechanism that places an application in the priority examination queue, and eligibility is closed. The fee is ₹8,000 for the reduced category and ₹60,000 for others, and an existing Form 18 can be converted for ₹4,000 or ₹40,000.

Eligible categories under Rule 24C(1), each requiring supporting evidence with the form:

• A startup, with recognition valid on the date of filing Form 18A
• A small entity, with the declaration on Form 28
• An applicant who is a natural person and female, where at least one applicant qualifies
• A department of government, an institution wholly or substantially financed by government, and government companies
• An applicant who selected India as the International Searching Authority or International Preliminary Examining Authority in the corresponding PCT application
• An applicant eligible under a Patent Prosecution Highway arrangement, Rule 24C(1)(j)
• Sectors notified by the Central Government from time to time

Early publication on Form 9 at ₹2,500 is the second accelerant. It pulls publication forward from 18 months and allows examination to proceed sooner, at the cost of putting the disclosure into the public domain and opening the pre-grant opposition window earlier.

Foreign filing licence: the Section 39 position

A person resident in India may not apply for a patent outside India for an invention unless an application has been filed in India at least six weeks earlier and no secrecy direction is in force, or the Controller has granted written permission. The permission is sought on Form 25 at ₹1,600 for the reduced category, and the Controller is required to dispose of the request within 21 days, except where the invention relates to defence or atomic energy.

The consequences are two, and they sit in different provisions. Section 40 provides that an application made in contravention of Section 39 shall be deemed to have been abandoned, and any patent granted on it is liable to be revoked, a ground repeated at Section 64(1)(n). Section 118 makes contravention punishable with imprisonment which may extend to two years, or fine, or both.

The pattern that catches Indian startups is structural. A Delaware or Singapore parent files a US provisional on work done by engineers in Bengaluru. The applicant is foreign, so the founders assume Section 39 is not engaged. The trigger is the residence of the inventor, not the identity or domicile of the applicant. Where the named inventors are resident in India, a foreign-first filing without permission engages Section 39 regardless of who owns the invention.

The sequence that avoids it: identify inventor residence before any filing, file in India first or obtain Form 25 permission, then file abroad. Where a foreign-first filing has already happened, the position is case specific and the remedy depends on timing, disclosure and what has already been granted.

References: Patents Act 1970, Sections 39, 40, 64(1)(n), 118. Patents Rules 2003, Rule 71, Form 25. First Schedule, entry 41.

PCT, the Paris route and jurisdictional differences

The Patent Cooperation Treaty buys optionality. One international application preserves the right to enter national phase in over 150 states, in India within 31 months from the priority date under Rule 20(4)(i). The transmittal fee at the Indian receiving office is ₹3,200 for the reduced category and ₹16,000 for others, with no transmittal fee for ePCT filing. The Paris route, direct national filings within 12 months of priority, is cheaper where only one or two markets matter.

The examination request on a national phase case carries a higher fee, ₹5,600 for the reduced category against ₹4,000, and since the 2024 rules the 31-month examination deadline coincides with national phase entry, so Form 18 is now filed alongside entry rather than seventeen months later.

Table 11: Software patentability by jurisdiction

Jurisdiction	Governing provision	Operative test	Business methods
India	Section 3(k), Patents Act 1970	Technical effect or technical contribution, per CRI Guidelines 2025	Absolute bar, no technical effect analysis
European Patent Office	Article 52(2)(c) and 52(3) EPC	Technical character, technical features assessed for inventive step	Qualified by “as such”, technical implementation can survive
United States	35 U.S.C. 101	Judicial abstract idea framework, two steps	No statutory exclusion, assessed as an abstract idea
United Kingdom	Section 1(2), Patents Act 1977	Four-step contribution approach	Qualified by “as such”
China	Patent Law and Examination Guidelines	Technical solution using technical means to solve a technical problem	Assessed as a technical solution
Japan	Patent Act	Creation of technical ideas using the laws of nature	Assessed on concrete implementation

The consequence for a single specification is that India is the strictest of these on business methods and among the more demanding on disclosure for AI. A specification built for India will usually travel. One built for the United States or Europe frequently will not.

References: Patents Rules 2003, Rule 20(4), First Schedule entries 28, 50, 51. EPC Articles 52(2)(c) and 52(3). 35 U.S.C. 101. UK Patents Act 1977, Section 1(2).

Who owns the invention: employees, contractors and the flip

India has no statutory rule vesting patent rights in an employer. Section 6 allows an application by the true and first inventor, by an assignee, or by the legal representative of a deceased person entitled to make the application. Ownership by a company therefore rests entirely on an assignment, and an assignment of a patent or an interest in it is valid only if in writing and reduced to a document embodying all the terms, under Section 68, with recordal on Form 16 at ₹1,600 per patent.

This is the sharpest contrast with copyright. Section 17(c) of the Copyright Act 1957 vests copyright in the employer for a work made in the course of employment under a contract of service, which is why founders assume code ownership follows employment and are surprised that inventions do not. Neither provision helps with contractors: a contract for services does not transfer either right without an express assignment.

The diligence file should contain invention assignment covenants in every employment contract, express assignment and moral rights waivers in every contractor, consultant and agency agreement, assignments covering pre-incorporation work by founders, and recorded assignments on Form 16 where a patent stands in a founder’s personal name.

On a flip or reverse flip, moving a patent between the Indian company and a foreign parent is a transfer of an intangible asset. It carries a valuation question, a capital gains question for the transferor, FEMA consequences on the consideration, and a transfer pricing consequence on any licence back. Sequencing matters alongside Section 39: the assignment should not be the step that creates a foreign-first filing position.

References: Patents Act 1970, Sections 6, 68. Copyright Act 1957, Section 17(c). First Schedule, entry 24.

What a patent is worth in a funding round

A pending application is a disclosure item. A granted patent is a valuation input and a warranty the founders can actually give. The practical value in a round sits less in the monopoly than in the ability to answer the IP schedule without qualifications.

Investors test four things: that every invention is owned by the company and not by a founder or a contractor, that the IP schedule is complete and matches the register, that the representations on ownership and non-infringement in the share subscription agreement can be given without carve-outs, and that nothing in the portfolio was filed in breach of Section 39.

On accounting, internally generated intangibles are recognised under Ind AS 38 only where the development phase criteria are met, so most filing and prosecution cost is expensed as incurred rather than capitalised. For tax, patents fall in the intangible block and attract depreciation at 25 percent on the written down value.

Tax treatment of patent income

Royalty from a patent developed and registered in India is taxed at 10 percent on a gross basis under Section 115BBF of the Income-tax Act 1961, with no deduction allowed for expenditure. The conditions are narrow: the assessee must be resident in India and be the true and first inventor whose name is entered on the register as patentee, at least 75 percent of the expenditure on developing the invention must have been incurred in India, and the option must be exercised on or before the due date under Section 139(1). If the income is not offered on that basis in any of the five succeeding assessment years, the benefit is lost for the following five assessment years.

The condition that catches startups is the first one. A company cannot be a true and first inventor, which means the concessional rate in practice reaches individual inventors rather than the operating company that investors require to hold the IP. That tension is worth surfacing at structuring stage rather than at the first licensing transaction.

Table 12: Patent-related income and its treatment

Income	Provision	Rate	Condition or form
Royalty on a patent developed and registered in India	Section 115BBF	10 percent, gross	Form 3CFA, Rule 5G, option by the Section 139(1) due date
Royalty received by a resident individual inventor	Section 80RRB	Deduction capped at ₹3 lakh	Certificate from the prescribed authority
Royalty paid to a non-resident	Sections 195 and 115A	20 percent plus surcharge and cess under the Act, commonly 10 to 15 percent under a treaty	Form 15CA and 15CB, treaty residence certificate
Assignment of a patent	Sections 2(14) and 45	Capital gains, not royalty	Holding period determines the head
Licensing or assignment consideration	CGST Act 2017	GST at the applicable rate for IP services	Reverse charge on import of the service
In-house R&D expenditure	Section 35(2AB)	Deduction at 100 percent	Approval by the prescribed authority

When not to patent: copyright, trade secrets and design

For most Indian software products the correct answer is copyright plus contract, with patents reserved for the two or three mechanisms worth 20 years of public disclosure. Source code is a literary work under Section 2(o) of the Copyright Act 1957 read with the definition of a computer programme at Section 2(ffc). Protection arises on creation, lasts for the author’s lifetime plus 60 years, and registration is optional and evidentiary rather than constitutive.

Table 13: Choosing the right instrument

Instrument	What it protects	Term	Disclosure required	Stops independent creation
Patent	The technical method or system	20 years from filing	Full, published at 18 months	Yes
Copyright	The expression, the code as written	Life of the author plus 60 years	None	No
Trade secret	Any confidential technical or commercial information	Indefinite while secret	None	No
Design registration	The visual appearance, including screen displays where registrable	10 years, extendable by 5	Representation published	Yes, for the appearance
Trade mark	The product name and mark	10 years, renewable	Mark published	Yes, for the mark

The deciding question between a patent and a trade secret is detectability. If infringement cannot be observed from the outside, a patent buys a right that cannot be policed while publishing the method to every competitor. Model weights, training data, hyperparameter configurations and internal tooling usually belong on the trade secret side.

India has no trade secret statute. Protection runs through contract, confidentiality obligations and common law, with Section 27 of the Indian Contract Act 1872 limiting how far a post-employment restraint can go.

References: Copyright Act 1957, Sections 2(ffc), 2(o), 17, 22. Designs Act 2000. Indian Contract Act 1872, Section 27.

Why applications get refused, and how to respond

The recurring refusal grounds for computer related inventions are Section 3(k) on the computer programme per se or algorithm limb, Section 3(k) on the business method limb, obviousness under Section 2(1)(ja), and insufficiency under Section 10(4). The response has to work at claim level. Argument alone rarely moves a Section 3(k) objection.

A response that tends to work is structured in five parts: construe the claim and identify the essential technical features, state the technical problem in the technical field, identify the technical effect with a quantified comparison, map that to the applicable step test in the CRI Guidelines 2025 by paragraph number, and file an amended claim set with narrower fallbacks within the scope of the claims as filed.

Arguments that do not work: a grant on the same family in another jurisdiction, the presence of a processor and a memory in the claim preamble, the assertion that the algorithm itself is novel, and reliance on decisions favourable to the applicant without addressing the decisions against.

If the application is refused, the appeal lies to the High Court under Section 117A, and in Delhi to the Intellectual Property Division. The Intellectual Property Appellate Board was abolished by the Tribunals Reforms Act 2021 and is no longer the forum, a point still misstated on widely read pages. A review or setting aside of the Controller’s order under Section 77(1)(f) or 77(1)(g) is available on Form 24 at ₹1,600 for the reduced category.

After grant: renewals, working statements and enforcement

Grant starts obligations. Renewal fees run annually from the third year under Section 53 on Form 4, with a six-month extension available and restoration under Section 60 on Form 15 where the patent has lapsed. A statement of working must be filed on Form 27 in respect of every period of three financial years, starting from the financial year commencing immediately after the year of grant, with no fee.

Non-filing or false information on the statement of working attracts consequences under Section 122, and since the Jan Vishwas (Amendment of Provisions) Act 2023 these are dealt with through an adjudication mechanism, the procedure for which was notified through the Patents (Amendment) Rules 2025 on 25/11/2025 with new Forms 32 and 33 for complaints and appeals.

Enforcement runs under Section 108 for remedies, injunction, damages or account of profits, and delivery up, with the defences at Section 107 including every ground on which the patent could be revoked under Section 64. For software patents the practical constraint is evidentiary rather than legal: a claim drafted around a server-side mechanism the defendant never exposes is difficult to prove infringed, which is a reason to draft at least one claim readable from an observable output.

References: Patents Act 1970, Sections 53, 60, 64, 107, 108, 122, 146(2). Patents Rules 2003, Rule 131. Jan Vishwas (Amendment of Provisions) Act 2023. Patents (Amendment) Rules 2025, G.S.R. 865(E), 25/11/2025.

Outdated positions still circulating

Five statements that were correct once, are repeated widely, and are wrong as at September 2026.

Table 14: What you will read elsewhere against the current position

Commonly published	Current position	Authority
The CRI Guidelines of June 2017 and their three-step test govern examination	Superseded on 29/07/2025 by the CRI Guidelines 2025, which apply four limb-specific step tests	CGPDTM, 29/07/2025
The request for examination is due within 48 months	31 months for applications filed on or after 15/03/2024	Rule 24B, Patents (Amendment) Rules 2024
The six-month deadline to reply to the FER is non-extendable	Extendable by 3 months on Form 4 at ₹1,000 per month for the reduced category	Rule 24B(6), First Schedule entry 4(iii)
Appeals against refusal go to the IPAB	The IPAB was abolished in 2021, appeals go to the High Court under Section 117A	Tribunals Reforms Act 2021
Software needs novel hardware to escape Section 3(k)	The novel hardware requirement lacks any basis in law	Raytheon, Delhi HC, 15/09/2023, para 21
There are three fee categories, with a small entity rate between natural person and large entity	The current First Schedule has two e-filing columns, with small entities in the reduced slab	First Schedule, Patents Rules 2003
Form 27 is filed annually	Once every three financial years	Rule 131, as amended in 2024
E-filing gives a 10 percent discount	E-filing is the base rate and physical filing costs about 10 percent more	First Schedule

Common mistakes that cost founders time and money

Filing abroad first without permission. An India-resident inventor files a US provisional through a foreign parent. The Indian application is deemed abandoned under Section 40, any patent is liable to revocation under Section 64(1)(n), and contravention is punishable under Section 118 with imprisonment up to two years, or fine, or both. Fix: check inventor residence before any filing, use Form 25 where a foreign-first filing is commercially necessary.

Claiming the commercial outcome. The specification opens on the market problem, so the claim reads as a business method or a programme per se. By the time the FER arrives, Section 59 limits what can be amended to what the specification already supports. Fix: write the technical problem and the technical effect into the specification at drafting stage.

Docketing the examination request at 48 months. A post 15/03/2024 filing docketed on the old rule misses the 31-month deadline and the application is treated as withdrawn under Section 11B(4). Relief under Rule 138 costs ₹10,000 per month for the reduced category and is discretionary. Fix: audit any portfolio migrated from a legacy docketing system.

Disclosing before filing. A demo day, a public repository, a preprint. Sections 29 to 34 are narrow, and Form 31 under Rule 29A covers specific public display situations at ₹500. There is no general twelve-month grace period in India. Fix: file a provisional before any disclosure.

No invention assignment from contractors. Discovered in diligence, when the contractor has leverage. Fix: express assignment in every contractor and consultant agreement, and clean-up assignments before a round rather than during one.

Decision framework: file, defer or do not file

Six questions decide it.

1. Is the problem the invention solves a technical problem, or a commercial one
2. Is the inventive part the mechanism, or the workflow the mechanism supports
3. Can the specification teach a person skilled in the art to work it without undue experimentation
4. Will the market this protects still exist in ten to twenty years
5. Could infringement be detected from outside the product
6. Is there budget for prosecution, a hearing and at least one foreign phase

Four or more yes answers point to filing, and to filing in India first with expedited examination. Two or three point to a provisional to hold the date while the answer to question three is built. Fewer than two point to trade secret and contract, and to spending the money on the product.

FAQs

Q: Can software be patented in India?
A: Yes, where the invention produces a technical effect. Section 3(k) excludes a computer programme per se, not software-based inventions as a class.

Q: Is an algorithm patentable in India?
A: Not on its own. Where the algorithm is implemented with disclosed technical specifics and produces a technical effect, the inventive feature is the implementation and the claim can be granted.

Q: Can a business model be patented in India?
A: No. The business method limb of Section 3(k) is not qualified by “per se”, and the Delhi High Court held in OpenTV that the bar is absolute.

Q: Can a mobile app be patented?
A: The app as such cannot. A technical mechanism inside it, for example an authentication method or a compression technique, may be, if it produces a technical effect.

Q: Can AI be named as an inventor in India?
A: No. Section 6 requires a person, and the CRI Guidelines 2025 state that AI-generated inventions are not patentable for that reason.

Q: Are AI-assisted inventions patentable in India?
A: Yes, where AI is used as a tool in the inventive process and the invention meets the patentability criteria and shows technical effect through a tangible application.

Q: What must an AI patent specification disclose?
A: Model architecture, training data characteristics, pre-processing, training parameters and validation results tied to the claimed technical effect, sufficient to work the invention without undue experimentation under Section 10(4).

Q: When is the request for examination due?
A: Within 31 months of the priority date or filing date for applications filed on or after 15/03/2024. Applications filed earlier remain on 48 months.

Q: What happens if I miss the examination deadline?
A: The application is treated as withdrawn under Section 11B(4). Relief under Rule 138 is discretionary and costs ₹10,000 per month for the reduced category.

Q: Can the six-month deadline to reply to the FER be extended?
A: Yes, by up to three months on Form 4, at ₹1,000 per month for the reduced category under Rule 24B(6).

Q: How long does a software patent take in India?
A: Three to five years on the standard route, nine to eighteen months with expedited examination under Rule 24C.

Q: What is Form 18A?
A: The request for expedited examination under Rule 24C. The fee is ₹8,000 for the reduced category and ₹60,000 for others.

Q: Do startups get a discount on patent fees?
A: Yes. DPIIT-recognised startups sit in the reduced fee slab alongside natural persons, small entities and educational institutions, claimed on Form 28.

Q: What are the renewal fees?
A: ₹800 a year for years 3 to 6, ₹2,400 for years 7 to 10, ₹4,800 for years 11 to 15 and ₹8,000 for years 16 to 20, for the reduced category. ₹76,800 across the full term.

Q: Do I need a foreign filing licence?
A: If the inventor is resident in India, yes, unless an Indian application was filed at least six weeks earlier. Permission is sought on Form 25 at ₹1,600.

Q: Can I file a US provisional before filing in India?
A: Not without permission under Section 39, if any inventor is resident in India. Filing through a foreign parent does not change the position.

Q: What is the PCT national phase deadline in India?
A: Thirty-one months from the priority date. Since 2024 the examination request falls due at the same point.

Q: Is patent royalty taxed differently in India?
A: Royalty on a patent developed and registered in India can be taxed at 10 percent on a gross basis under Section 115BBF, subject to conditions that most operating companies cannot meet.

Q: Is GST payable on patent licensing?
A: Yes, IP licensing is a supply of service, with reverse charge applying on import of the service. Confirm the current rate before contracting.

Q: Who owns an invention made by an employee in India?
A: The employer only by assignment. There is no statutory employer ownership rule for patents, unlike Section 17(c) of the Copyright Act 1957 for code.

Q: Can a patent stay in a founder’s personal name?
A: It can, but investors will require assignment to the company under Section 68 and recordal on Form 16, and the transfer can trigger a fee differential.

Q: Where do I appeal a patent refusal?
A: To the High Court under Section 117A. The IPAB was abolished by the Tribunals Reforms Act 2021.

Q: What is Form 27?
A: The statement of working, filed once every three financial years with no fee. It moved from annual filing in 2024.

Q: Should I patent my software or keep it a trade secret?
A: Patent where infringement is detectable from outside the product. Keep it secret where it is not, which is usually the case for model weights, training data and internal tooling.

External sources:

• Indian Patent Office, CGPDTM
• CRI Guidelines 2025
• First Schedule, official fees
• CGPDTM Annual Report 2024-25

References:

• Patents Act 1970, Section 3(k), and Sections 3(l), 3(m), 3(n). Text at Indian Patent Office, Sections of the Patents Act.
• Patents (Amendment) Act 2002 (No. 38 of 2002), in force 20/05/2003.
• Report of the Joint Committee on the Patents (Second Amendment) Bill, presented to the Rajya Sabha and laid before the Lok Sabha on 19/12/2001. Copy hosted at ipindia.gov.in.
• Patents (Amendment) Ordinance 2004, promulgated 27/12/2004, effective 01/01/2005, not ratified. Language restored by the Patents (Amendment) Act 2005.
• Guidelines for Examination of Computer Related Inventions (CRIs) 2025, Office of the Controller General of Patents, Designs and Trade Marks, notified 29/07/2025, paras 1.2, 3.1, 3.3, 3.4, 4.5, 4.5.4. Full text PDF.
• Ferid Allani v Union of India, Delhi High Court, W.P.(C) 7/2014 and CM APPL. 40736/2019, 12/12/2019.
• OpenTV Inc v Controller of Patents and Designs, Delhi High Court, C.A. (COMM.IPD-PAT) 14/2021, 11/05/2023, paras 67, 72, 73.
• Raytheon Company v Controller General of Patents and Designs, Delhi High Court, C.A. (COMM.IPD-PAT) 121/2022, 15/09/2023.
• Microsoft Technology Licensing LLC v Assistant Controller of Patents and Designs, Madras High Court, (T) CMA (PT) No. 49 of 2023, 03/07/2024, para 25.
• Blackberry Limited v Assistant Controller of Patents and Designs, Delhi High Court, C.A. (COMM.IPD-PAT) 229/2022, 30/08/2024.
• European Patent Convention, Article 52(2)(c) and Article 52(3). United States, 35 U.S.C. 101

1. Patents Act 1970, Sections 2(1)(ac), 2(1)(j), 2(1)(ja), 3, 3(k), 10(4), 10(5). Text at Indian Patent Office, Sections of the Patents Act.
2. Guidelines for Examination of Computer Related Inventions (CRIs) 2025, CGPDTM, notified 29/07/2025, paras 1.2, 3.1, 4, 4.1, 4.2, 4.3, 4.4. Full text PDF.
3. Telefonaktiebolaget LM Ericsson (Publ) v Lava International Ltd, Delhi High Court, CS(COMM) 65/2016, 28/03/2024, paras 87 to 88 on the seven-step novelty approach.
4. Biswanath Prasad Radhey Shyam v Hindustan Metal Industries Ltd, AIR 1982 SC 1444.
5. F. Hoffmann-La Roche Ltd v Cipla Ltd, Delhi High Court, 07/09/2012, on the person skilled in the art standard.
6. Ferid Allani v Union of India and Others, Delhi High Court, W.P.(C) 7/2014 and CM APPL. 40736/2019, 12/12/2019, para 11.
7. Microsoft Technology Licensing LLC v The Assistant Controller of Patents and Designs, Delhi High Court, C.A. (COMM.IPD-PAT) 29/2022, 15/05/2023, para 41.
8. OpenTV Inc v The Controller of Patents and Designs, Delhi High Court, C.A. (COMM.IPD-PAT) 14/2021, 11/05/2023, paras 67, 72, 73.
9. Raytheon Company v Controller General of Patents and Designs, Delhi High Court, C.A. (COMM.IPD-PAT) 121/2022, 15/09/2023, para 21.
10. Telefonaktiebolaget LM Ericsson (Publ) v Lava International Ltd, Delhi High Court, CS(COMM) 65/2016, 28/03/2024, paras 87 to 88.
11. Microsoft Technology Licensing LLC v The Assistant Controller of Patents and Designs, Delhi High Court, C.A. (COMM.IPD-PAT) 185/2022, 16/04/2024, paras 33 to 35.
12. Microsoft Technology Licensing LLC v Assistant Controller of Patents and Designs, Madras High Court, (T) CMA (PT) No. 49 of 2023, 03/07/2024, paras 23, 25, 36.
13. Ab Initio Technology LLC v Assistant Controller of Patents and Designs, Delhi High Court, C.A. (COMM.IPD-PAT) 26/2021, 30/07/2024, para 38.
14. Blackberry Limited v Assistant Controller of Patents and Designs, Delhi High Court, C.A. (COMM.IPD-PAT) 229/2022, 30/08/2024, paras 48, 52.
15. Blackberry Limited v Controller of Patents and Designs, Delhi High Court, C.A. (COMM.IPD-PAT) 318/2022, 30/08/2024.
16. Caleb Suresh Motupalli v Controller of Patents, Madras High Court, C.M.A. (PT) No. 2 of 2024, 29/01/2025, paras 21 to 32.
17. Kroll Information Assurance LLC v Controller General of Patents, Designs and Trade Marks, Delhi High Court, November 2025.
18. Judgment copies for most of the above are hosted by the Indian Patent Office at ipindia.gov.in, CRI case laws, Annexure II.