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Software Patent in US and India: A comparison

Imagine working every second of your waking hours, investing in a creation that you know is going to be a revolution for the upcoming industry. But after publishing and gaining public recognition, you discover that an unknown party has misused your creation, thus further degrading the quality


Imagine working every second of your waking hours, investing in a creation that you know is going to be a revolution for the upcoming industry. But after publishing and gaining public recognition, you discover that an unknown party has misused your creation, thus further degrading the quality of your product. At this stage, you would most likely seek any sort of protection for your product for further such exposure. This is where the laws of intellectual property rights come into play. More specifically, Patent laws. A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical way to a program.[1] Thus, patent laws are the bodies of law that provides legal enforceability and exclusive rights for the owners to protect their work from being duplicated, stolen, or misused.

Software and Patents

Softwares are those sets of instructions, data, or algorithms which operate the computer system and carry out specific tasks.[2] Thus, the websites we visit or the computer application we download are all classes of software. Thus, software patents ensure the owners their property right that protects computer programs or any performance from that computer. Unlike software copyright, which ensures protection for only the code of the program, a software patent ensures protection not only for the code but also for the methods, performance, and output of the program. As tempting and powerful as it sounds to obtain a software patent license, the reality is vastly different. There has been a never-ending debate on the topic that whether or not the software can be patentable. Due to this, there has been an ambiguity regarding the provision and has left owners confused or cautious to approach one. In this blog, we will discuss how software patentability is enforced under various jurisdictions.

Software Patents in the US

Home to the biggest global centre for innovation and technology, Silicon Valley is well known for being the brainchild behind some of the massive tech giants such as Apple, Meta, Cisco, etc. These are the pinnacle of human inventions that breathe and run on software. So how do software programs gain patent licenses under US jurisdiction? The road down for acquiring a software patent license under the US jurisdiction was a rigorous one throughout history. The United States Patent Law is a statutory body of law that establishes the implementation of intellectual property and provides exclusive rights to the respective author’s writing and creation. It is codified in the Title 35 of the United States Code and is authorized by the US Constitution, in Article 1, Section 8, Clause 8, where it states that: “Congress shall have Power […] To promote the Progress of Science and Arts, by securing limited times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries.”[3]  Even though the importance of various intellectual properties and their rights have been officially recognized, there have not been any specific mentions for software or computer programs. Thus, leaving room for ambiguity for the technical intellectual properties and such creators who also seek to retain and protect their original piece of work from being stolen or duplicated. In Gottschalk v. Benson (1972), two inventors by the name Gary Benson (plaintiff) and Arthur Tabbot filed a patent application for an algorithm that could covert binary decoded decimal numbers into true binary numbers. The Commissioner of Patent, Gottschalk (Defendant) filed a writ petition to be judicially reviewed by the US Supreme Court. It was then decided that, since the conversion of binary coded decimal, to pure binary number is purely mathematical, i.e., abstract, and had no practical application or advancement for the industry, such an application was denied of acquiring an official patent license.[4]

The case of Alice Corporation v. CLS Bank International showed a new direction to this question. Alice Corporation is an Australian company that invented a software-related financial transaction scheme that would protect its user from a settlement risk (the risk that only one party to a transaction will pay what it owes). The patent claimed to mitigate settlement risk through a computerized third-party intermediary. In 2002, Alice alleged that CLS Bank International was also using similar technology and thus CLS has infringed on Alice’s patent rights. In 2007, CLS Bank International filed a declaratory judgment against Alice Corporation, claiming that since the software-based financial transaction scheme is abstract, it does not qualify to be a patent-eligible subject matter, and thus; they have not infringed on Alice’s patent rights.[5] From the above case, in 2014, Supreme Court established a two-step inquiry under the current Patent law regime before a software would be patent-eligible. Thus, the current US Patent law has laid down that[6]:

  • The invention should be more than just an “abstract idea”; meaning the program should be able to compute or speed up previously available computation processes.
  • Even if the algorithm comprises such code, it should contain some additional elements that “transform” the abstract idea into a patent-eligible application.
    Hereby ”transforms” means that the software must solve the problem in an “unconventional” or by arranging any conventional array of elements in an unconventional way.

Software Patents in India

The question of patentability for software or computer algorithms in India starts from the sub-section of section 3 (k) of the Indian Patents Act 1970. It explicitly excludes patentability for subject matters, which contain “a mathematical or business method or a computer programme per se or algorithms”[7] So is there no scope for software patentability in India? There is. However, obtaining a software patent under Indian jurisdiction is not an easy task. According to the recent guidelines of 2017, issued by the Office of the Controller General of Patents, Designs & Trademark, whereby it states that:

“The sub-section 3(k) excludes mathematical methods or business methods or a computer programme per se or algorithms from patentability. Computer programmes are often claimed in the form of algorithms as method claims or system claims with some “means” indicating the functions of flow charts or process steps. It is well-established that, while establishing patentability, the focus should be on the underlying substance of the invention and not on the particular form in which it is claimed.”  What is important is to judge the substance of claims by taking the whole of the claim together. If any claim in any form such as method/process, apparatus/system/device, computer program product/ computer-readable medium falls under the said excluded categories, such a claim would not be patentable. However, if in substance, the claim, taken as a whole, does not fall in any of the excluded categories, the patent should not be denied.” [8] Thus, from the above statements, it can be inferred that software patentability is granted in India if:

  • The program can demonstrate a “technical advancement” or “technical effect”
  • The program is in conjunction with novel hardware.
  • It does not fall under the exceptions of Section 3 (k) of the Indian Patents Act 1970.

Hence, to obtain a software patent In India, the person drafting the patent application with utmost importance and attention to detail must mention the features, which demonstrate the technical and technical effect in the claims, where claims should be properly enabled in the specification of the software patent application. This would greatly enhance the applicability of the software and would increase the chances of acquiring a software patent license.[9]


Inventions surrounding computer programs or software are the need of the hour. Known for being the era of technology for a reason, it is becoming increasingly difficult to live without such technological advancement. With the current cutthroat competition in the rapidly emerging tech world, it seems reasonable for creators and engineers to exercise legal authority over their software from being stolen or duplicated. However, in the light of patenting software, the chances of overshadowing upcoming innovation or advancement increases, leaving little to no room for further enhancement or creation. Because of this, only a handful of companies get to dominate in the ever-growing technological industry. There is still a lot to discover regarding laws around software patenting. Thorough research and effective statutory laws are requested to be implemented.

Author(s) Name: Adrika Mitra (Calcutta University, West Bengal)


[1] “What is a Patent?” (WIPO) Accessed April 15 2022

[2] Linda Rosencrance, “Software” (Tech Target),physical%20aspects%20of%20a%20computer. Accessed April 15, 2022

[3] “Arti.S8.C8.1.1 Origins and Scope of the power” (Constitution Annoted),their%20respective%20Writings%20and%20Discoveries. Accessed April 16, 2022

[4] “Gottschalk v. Benson” (Oyez) Accessed April  17, 2022

[5] Stuti Sinha, “Case Analysis: Alice Corp. v. CLS Bank (134 S. Ct.2374(2014))” (Mondaq, August 29, 2018),Alice%20counterclaimed%20infringement. Accessed April 17, 2022

[6] “Is Software Patentable in the United States?” (“The Law”- Shah IP Law) Accessed April 17, 2022

[7] “Can you patent a software in India?” (IPExcel) Accessed April 17, 2022

[8] “Can you patent a software in India?” (IPExcel) Accessed April 17, 2022

[9] “How to Patent a Software in India” (IPExcel) Accessed April 18, 2022