Section 3(K) Software Patent Exclusion Cases.
1. Section 3(k): Statutory Background
Section 3(k) of the Indian Patents Act, 1970 excludes the following from patentability:
“a mathematical or business method or a computer programme per se or algorithms.”
Key Expression: “computer programme per se”
The phrase “per se” is crucial.
It means computer programs as such, i.e., software standing alone, without technical application or technical effect.
Indian law does not allow pure software patents, but allows patents where software:
Is integrally linked with hardware, or
Produces a technical effect / technical contribution
2. Judicial and Administrative Interpretation of Section 3(k)
Indian courts and the Patent Office have clarified:
Mere automation of a known process is not patentable
Software that produces technical advancement may be patentable
Substance over form approach is applied (claims are examined, not title)
3. Important Case Laws on Section 3(k)
Case 1: Yahoo Inc. v. Assistant Controller of Patents (2011)
Facts:
Yahoo filed a patent application for a method of displaying search results more efficiently.
The invention involved ranking and categorizing search results using software logic.
Issue:
Whether the invention was a technical invention or merely a computer program per se.
Decision:
Patent was rejected under Section 3(k).
Reasoning:
The invention:
Was essentially a software-based method
Did not disclose any novel hardware
Did not show any technical effect beyond data processing
Legal Principle:
A method that only improves information presentation or data handling is not patentable.
Significance:
Established that search algorithms and ranking logic are excluded if no technical contribution exists.
Case 2: Ericsson v. Intex Technologies (2015)
Facts:
Ericsson owned patents relating to telecommunication technology (2G, 3G, AMR codecs).
Defendants argued that Ericsson’s patents were software-based and hit by Section 3(k).
Issue:
Whether telecom patents involving software are excluded under Section 3(k).
Decision:
Delhi High Court upheld patentability.
Reasoning:
The invention:
Was not a computer program per se
Involved hardware elements like base stations and mobile devices
Produced technical effects such as:
Reduced interference
Efficient bandwidth usage
Improved call quality
Legal Principle:
If software is embedded in hardware and achieves a technical effect, it is patentable.
Significance:
Major precedent confirming that embedded software is not barred under Section 3(k).
Case 3: Ferid Allani v. Union of India (2019)
Facts:
Patent application for a method of accessing web information using a novel architecture.
Rejected repeatedly under Section 3(k) as a computer program.
Issue:
Whether modern digital inventions should be examined rigidly under Section 3(k).
Decision:
Delhi High Court set aside the rejection.
Reasoning:
Court emphasized:
Patent law must keep pace with technological advancements
If a computer-based invention shows a technical effect, it is patentable
Examples of technical effect include:
Improved speed
Reduced memory usage
Enhanced security
Better resource management
Legal Principle:
The presence of a technical effect or technical contribution is decisive, not the mere presence of software.
Significance:
Most cited Indian case on software patents
Shifted interpretation from formal exclusion to purposive interpretation
Case 4: Microsoft Technology Licensing v. Assistant Controller of Patents (2016)
Facts:
Microsoft filed patents for methods involving:
Digital rights management
Secure data transmission
Issue:
Whether software that improves security qualifies as patentable.
Decision:
Rejection was overturned.
Reasoning:
The invention:
Solved a technical problem (unauthorized access)
Improved computer system security
Was not merely an abstract algorithm
Legal Principle:
Software improving the internal functioning of a computer system is patentable.
Significance:
Clarified that security-related software inventions may qualify for patents.
Case 5: Intellectual Property Appellate Board (IPAB) – Electronic Navigation Research Institute Case
Facts:
Application related to electronic navigation systems.
Patent office rejected it as software-based.
Issue:
Whether integration with hardware matters.
Decision:
Patent allowed.
Reasoning:
The invention:
Controlled navigation hardware
Improved accuracy and efficiency
Was inseparable from physical components
Legal Principle:
When software controls or improves a physical system, Section 3(k) does not apply.
Significance:
Important administrative precedent for hardware-software combination inventions.
Case 6: IBM India Pvt. Ltd. v. Assistant Controller of Patents (2021)
Facts:
IBM’s patent related to data processing and storage management.
Rejected as algorithmic and software-based.
Issue:
Whether data management techniques can be technical.
Decision:
Matter remanded for fresh examination.
Reasoning:
The invention showed:
Reduced processing time
Improved storage efficiency
These amounted to technical effects.
Legal Principle:
Efficiency improvement in computing resources may constitute a technical contribution.
Significance:
Reinforced Ferid Allani principles.
4. Tests Applied by Indian Authorities Under Section 3(k)
(A) Technical Effect Test
Examples accepted:
Reduced memory usage
Faster processing
Improved security
Enhanced hardware performance
(B) Substance Over Form Test
Merely adding words like “device” or “system” is insufficient
Examiner looks at actual contribution
(C) Novel Hardware Test (Not Mandatory)
Hardware integration strengthens patentability
But technical effect alone can suffice
5. Summary Table
| Case | Outcome | Key Principle |
|---|---|---|
| Yahoo v. Controller | Rejected | Data processing ≠ technical effect |
| Ericsson v. Intex | Allowed | Embedded software patentable |
| Ferid Allani | Allowed | Technical effect is decisive |
| Microsoft v. Controller | Allowed | Security improvements qualify |
| ENRI Case | Allowed | Hardware-software synergy |
| IBM v. Controller | Remanded | Resource optimization is technical |
6. Conclusion
Section 3(k) does not impose a blanket ban on software patents
Indian law adopts a balanced approach:
Excludes abstract software
Protects genuine technological innovation
The technical effect doctrine, especially after Ferid Allani, governs patentability
RELATED Blog
comments