India: Is Software Patentable In India?

Last Updated: 30 May 2019
Article by Sonal Sodhani


The fast growing software industry and a faster pace of technological advancements have made it essential to protect the intellectual property (IP) vested in the software, programs and all those machines that use such programs and software. Software are a set of instructions that commands the operation of a system and are intangible in nature. Due to this different nature of the software, it falls outside the category of any traditional goods and thus, it won't be justified to treat it in a like manner with other goods. Unlike other traditional goods, when a software is sold, the buyer gets a license to use the particular software along with some other particular and specified rights indicating the dos and don'ts for the licensee.

Software and computer programs face a cutthroat competition in the market and are pretty vulnerable to suffer undue economic loss as it might be accessed by users without payment and also, software are vulnerable to piracy and being copied. Further, due to fierce competition, there is a serious threat of being outdated very soon as the competitors might bring a competing product quickly. Protection of software under IPR mechanism will not just protect the economic interest of the owner but also will promote innovation and creativity.

Software and IP Laws

Talking of software, copyright and patent are two IP protection that comes to the mind, immediately. Copyright is the most common method of protecting software program as writing source code and programs is similar to writing any type of literary or artistic work. Patent is the strongest way to protect an IP but there are many stringent criteria to be fulfilled in order to get a patent for software. Further, copyright infringement and piracy of software is not something new in this digital era, rather with such advanced technology it is even possible to copy the entire program code. Adding to that, copyright protection does not protect the process, procedure or discovery. In general, novelty, non-obviousness and industrial usage are the criteria for granting patent to any invention, however, computer software and algorithms fall in a different category. Patent laws create an exception with scientific discoveries, mathematical formulae, and algorithms. Computer programs are considered as a form of applied mathematics. In India, software is not directly patented but it can be granted patent if it is attached with novel hardware, an invention which is unique and capable of industrial use.

According to RBI's annual survey, export of India's software services increased by 11.6% to $108.4 billion in 2017-18. For such expansion and growth of the software industry, the IP laws have been amended time and again. However, there is still no law that specifically and exclusively deals with software and computer programs. Software is protected under copyright, patents and at sometimes under the trade secrets. Even though we have legal provisions for IP protection, but the country fails in having a developed jurisprudence and therefore, American approach is applied majority of the times in dealing with such cases. Even the amended Information Technology Act of 2008 does not talk about the IP protection of computer software and programs.

Software and Copyright

According to Sec. 2 (o) of the Copyright Act, 1957, computer programs come within the ambit of literary works. However, the Act does not distinguish between the source codes and object code and so, both are covered under the literary work of the computer program. However, for a software or computer program to be granted copyright protection, it is essential that the work is original.

As a general rule, the owner of the copyright is the author of the work himself. However, in case of employee-employer relationship, unless an agreement to the contrary, if the work is made during the course of the employment, employer is the first owner of the work. Similar to the case of employer-employee relation is the case with the software and computer program. The owner of the copyrighted software has exclusive right to store and reproduce the software. Any third party doing the same without property authority will be liable for copyright infringement.

However, the Act permits fair use and reverse engineering of the program and the same won't constitute to be an infringement. Further, creating copies or adaptation of such program by a lawful possessor of such program in order to create temporary back up for the chances of loss or destruction of such software program, for the purpose for which it was transferred, shall not amount to infringement. In addition to these, any person having been granted a license by the copyright owner to use his copyrighted work, cannot be made liable for copyright infringement.

Software and Patent

Though the expression of the methods of programming codes can be copyrighted, the operational methods and principles of the program cannot be granted a copyright. Also, since reverse engineering is a fair use of the program, reverse engineering of trade secret is permissible.

Hence, patent becomes essential for protection of software as patent works on scope and not on how one developed the work. Patent can be an ideal solution when the question concerns protection of ideas and functional aspect of a software. But, for being granted a patent, it is necessary that the program is not merely an algorithm but is a technical invention that is eligible for such grant of patent. As per Sec. 3 (k) of the Patent Act, 2002, computer program cannot be patented per se.

For a computer software to be eligible for a patent grant, it must not be –

1. Business method, mathematical method or algorithm

2. A computer program that cannot be patentable

However, a software can be patented if it is attached to an invention and that it is a component of such invention. To avoid the claim of sec. 3 (k) it is essential to show that a hardware is an essential part of the invention along with the software or computer program.

Similar to copyright, patent laws also allows the patent owner to give license or assign his patented work to any individual or third party giving them certain rights over patented work. Such license is to be granted by a written agreement wherein all the terms and conditions are precisely mentioned.

Software and Trade Secrets

Idea, structure or design specification of software may be included as a trade secret. Trade secret protection depends on the nature of the software and how it is distributed. A software which is distributed only as an object code can be protected partially if the source code is kept confidential.

However, there are several limitations to trade secret acting as a method of protection. There is no way the owner can have a remedy against any person or party who is able to reverse engineer the trade secret from the data made available in the public domain. It is further important to mention that if software or computer technology is vulnerable and can be easily copied, then such technology is not fit to be a trade secret.

Trade Secrets are protected under contract and tort laws in India. However, such contractual protection is limited to the parties that sign the contract and thus, does not have any effect on the parties who are not a party to the contract provided they act in good faith.

Software Contracts

Similar to any other contract, software contracts are also governed by the Indian Contract Act. Such software contracts can be in the form of agreement or license or maybe sale. If a software fits into the definition of "goods" as per Sale of Goods Act, which includes any movable property tangible or intangible, shall be governed by the principles and provisions of Sale of Goods Act. In Tata Consultancy Services v. State of Andhra Pradesh (271 ITR 401) Supreme Court considered software to be good, further stating that irrespective of the IP of a software, computer software can be considered as 'goods' and is liable for taxes.

License Agreement

Though there is no stopping of the rightful owner of a software or computer program from granting access to his work to any third party, it has been seen that the owners of software prefer granting license to the buyers than actually selling the software to one. This is preferred for the reason that license is firstly governed by IP laws and further, license provide a scope of retention of some substantial and important rights related to the software and leaves greater chances of controlling the software with the owner of the said software. As a result, such software license ensures that almost all rights are reserved with the owner except the right of running the software on the licensee's device.


In general, protection of computer software in India is under the copyright laws, itself. However, there is a scope of protection of literal and non-literal parts of the software, fair use criteria and authors right under the ambit of license agreements which is yet to be discovered and recognised by the Indian courts. It is further concluded that such program can also be protected under the patent laws provided that it is not merely an algorithm based software but is an invention per se. With no proper legislation defining the scope of protection of software as a trade secret, trade secret seems as a limited and restricted option for protection of IP vested in the software.

In such an advancing and growing digital era, having such limited options for protection of one's original work in the field of software and computers might lead to lack of innovation and creativeness coming forward. Hence, it is essential that all these laws which are so scattered and vaguely made, be developed and put in place for better protection of the creator's work.




3. V T Thomas v. Malayala Manorama, AIR 1988 Ker. 291


5. Ibid

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions