Software Patents in India

Last Updated at: Jul 06, 2021
All you need to know about Software Patents in India
Smartphone manufacturer Xiaomi has applied to the chinese patent office CNIPA for a patent on a new mobile concept. The firm is considering implementing waterfall displays on smartphones according to the patent submitted.


With the rapid growth in the world of technology and digital fields, a number of creators and inventors are trying their hands on various applications and developing new software. In a country like India, with such ingenious minds, it is almost impossible to trust the fact that software patent filing in India has still not been allowed completely.

Every innovator wants to make a mark, and stand apart from the crowd, wanting to get the complete right over their innovations. This is what patent means, protection for the invention.

The engineers and other young minds are developing and innovating new ideas each day, leading to an increase in the competition both nationally and internationally, intensifying the demands for software patents in India.

The legal protection of the innovation and creation of the individuals was recognized quite late in India, with the Patents Act coming into play in the year 1970, along with the Patents Rule which came into action from 20th April 1972. Even after the Patents act and rules came into play, there were certain limitations and obligations to the objects which could be patented by individuals.

After this, this act was amended and the Patents Amendment Act came into effect in 2003, under which some of the inventions were distinctly excluded from the registration for patents.

These inventions include:

Innovations including mathematical or business methods.

  Innovations which involve computer programme per se or algorithms

Any creation which is related to art, drama, music, cinematography or even television.

– Presentation of information and topography of integrated circuits 

As such, only those products and innovations are patentable as a part of the act which is capable of use in the industry or which is inventive/part of innovation.

While getting a software patent or any sort of patent in general in India is a complex process but not impossible.

 In order to get a patent in India, innovation must fulfil the following criteria:

  Novelty: The product which has to be patented must not have been published or the technology must not have used elsewhere.

 Inventive Step: The innovation must have an added feature of new technology compared or in addition to the existing technological and economical significance.

Industrial Applicability: The product so innovated must be capable of use in the industry.

Exclusion of patentability for software or mathematical programs.

If the software fulfils the above four criteria, then only it is possible to get it patented.

The software patent is not promoted in India due to the reason for innovation. According to the government, if all such innovations and software are patented, then a majority of the patents will be owned by a minority of the creators and firms limiting the innovation in a developing country like India, where the programmers, coders, and developers must be given the freedom to explore and innovate for the betterment.

Patent Your Innovation 

If not software patent, then what?

In India, most of the software and codes are protected by claiming copyright. But, this is not much of a good idea, as it only protects the software and not the underlying idea and innovation in it. Such copyright does not refrain others from copying the idea of functionality, whereas if this similar software is patented, it even allows and ensures the protection of ideas as well as the code.

How to file a patent in India?

Along with all this, to get the innovation patented in India, the steps for the patent filing procedure is as given below:

  1. Writing down the idea and the concepts which lie behind. Try and give a detailed description including its working, area of invention, coding, along with the advantages and how it is of use to the industry.
  2. To explain the working of the invention, try and include objects, sketches, diagrams, etc. which help in having a better perspective of the innovation.
  3. Check whether the innovation is enlisted and follows the patent criteria.
  4. After having thorough research, confirm and finalize whether you can continue with the patent application.
  5. After this, write a draft/patent application.
  6. Once all the specifications and requirements are fulfilled, publish the application.
  7. The next step is RFE,i.e., request for application. Only after the request is submitted, the examiner views and examines the application submitted.
  8. Respond and clear all the objections raised with respect to your innovation.
  9. Once all the requirements and the patent process in India is completed, the innovator is finally granted the patent and notified through the publishing of the innovation in the patent journal.

Even though the process of application for patent is simple, a lot of innovations are still not allowed to be patented in India, especially in the case of the technological field which includes software and application development, making it a complex process and demotivating the coders and programmers from building, developing and experimenting for the better which in turn also leads to the growth of the country as a whole.

Senior Executive - Content in Vakilsearch