“SOFTWARE PATENTABILITY IN INDIA: A CRITICAL ANALYSIS OF SECTION 3(K), TECHNICAL CONTRIBUTION, AND GLOBAL PATENT REGIMES IN THE ERA OF AI AND HIGH-PERFORMANCE COMPUTING”
AUTHOR – SHREYA MISHRA* & DR. SHOVA DEVI**
* STUDENT AT AMITY LAW SCHOOL, AMITY UNIVERSITY UTTAR PRADESH, LUCKNOW CAMPUS
** ASSISTANT PROFESSOR AT AMITY LAW SCHOOL, AMITY UNIVERSITY UTTAR PRADESH, LUCKNOW CAMPUS
BEST CITATION – SHREYA MISHRA & DR. SHOVA DEVI, “SOFTWARE PATENTABILITY IN INDIA: A CRITICAL ANALYSIS OF SECTION 3(K), TECHNICAL CONTRIBUTION, AND GLOBAL PATENT REGIMES IN THE ERA OF AI AND HIGH-PERFORMANCE COMPUTING”, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 6 (5) OF 2026, PG. 350-359, APIS – 3920 – 0001 & ISSN – 2583-2344.
ABSTRACT
Software has changed so much over the years, from basic machine code back in the day to all this stuff with AI and cloud computing now, plus things like 5G that make everything faster. It is kind of wild how it has reshaped the whole world, economies and industries and even how people live. In India, this has brought up big questions about patents for software.
The Patents Act from 1970 has this Section 3(k) that says computer programs by themselves cannot be patented. It is meant to stop companies from locking up ideas that everyone should be able to use, protecting the public and keeping tech open. But the problem is, what does per se really mean? There is no clear definition, so judges and patent offices interpret it differently sometimes. That creates uncertainty, I think, for people trying to innovate or start businesses.
This makes it tough for startups especially, because they need some way to protect their ideas without jumping through too many hoops. The legislative idea behind 3(k) was cautious, to avoid monopolies, but in practice it might slow down real progress in software.
Then there are the guidelines from the Indian Patent Office on computer related inventions. They talk about needing a technical contribution, like making hardware work better or speeding up processes somehow. It is not just the code alone, but how it affects the system technically.
Cases like Ferid Allani against the Union of India helped shape this, showing that if there is a real technical effect, it might be patentable. More recent ones with Comviva Technologies build on that, evolving what counts as technical.
Comparing to other places, the US is more open with their Alice test, letting some software patents through if they are not too abstract. Europe has this technical effect idea under their convention, similar but maybe a bit stricter. India though sticks to a tighter line, which could affect how competitive we are globally, with investments and all.
That divergence matters a lot for the tech sector here. It might discourage big R and D efforts.
Now with AI and machine learning coming up strong, it gets even messier. These technologies mix algorithms with real applications, so where do you draw the line? The current rules in India do a good job preventing evergreening, like patenting small tweaks to old stuff, but they might hold back new breakthroughs too.
I am not totally sure, but it feels like the framework needs tweaking to keep up without losing the public interest part.
For recommendations, maybe clarify what per se covers exactly. Add a clear test for technical contribution, make those CRI guidelines stronger legally. Align a bit more with international stuff, but keep our priorities in mind.
A better system would help with certainty, I suppose, and boost innovation. It could draw more investment and help India lead in digital stuff. Though, this part is a bit messy to wrap up neatly.
KEYWOEDS: Software Patentability, Section 3(k) of the Patents Act 1970, Computer Programs per se, Technical Contribution, Technical Effect, Computer Related Inventions (CRI) Guidelines, Artificial Intelligence and Patent Law, Innovation and Intellectual Property Rights, Comparative Patent Regimes, TRIPS Agreement, High-Performance Computing, 5G Technology, Legal Uncertainty in Patentability, Startups and Innovation Ecosystem, Evergreening of Patents, Public Interest vs Private Rights, Digital Economy and Patent Policy