Can You Patent Software in India? What Section 3(k) Really Means
Section 3(k) of the Patents Act excludes 'a computer programme per se' and algorithms from patentability. This is the single most misunderstood provision for software and AI founders - it does not mean software is unpatentable, but it does mean how you frame the invention is everything.
What 'per se' changes
The exclusion targets a computer programme claimed on its own. An invention that uses software to achieve a technical effect or solve a technical problem - beyond the ordinary running of a program on general hardware - can be patentable.
The technical effect test
Examiners look for a demonstrable technical contribution: improved hardware performance, better resource utilisation, enhanced security, or a real-world technical result. Claims framed purely as business logic or abstract steps tend to fall foul of 3(k).
Drafting matters most
The same underlying invention can be granted or refused depending on how the specification and claims are written. Anchoring the invention in its technical architecture and effect is what carries it through examination.
AI and ML inventions
Machine-learning inventions face the same test. A novel model applied to produce a concrete technical improvement is on firmer ground than a claim to the algorithm itself.
We draft computer-implemented and AI inventions around their technical effect from the first line, because with Section 3(k) the framing decides the outcome.
Evaluating an invention, planning a filing, or need portfolio guidance?
Start a Conversation