How Can A Software Be Patented?

5th June, 2025 - 5:01 am Categories: Patent Filing 0 Comments

In a world where apps run our businesses, algorithms power our decisions, and code shapes nearly every aspect of life, protecting software-based innovation has never been more important. But if you’ve ever wondered whether you can actually patent a piece of software, you’re not alone it’s one of the most debated and misunderstood areas of intellectual property.

While software is undeniably innovative, patenting it isn’t always straightforward. Laws vary across countries, and terms like “abstract idea” or “technical effect” can make the process feel more like a legal maze than a creative safeguard.

In this blog, we’ll break down what it really means to patent software, the requirements you’ll need to meet, and how to approach the process in a way that gives your invention the best shot at legal protection without getting lost in the jargon.

Can Software Be Patented?

When it comes to patenting software, the answer isn’t a simple yes or no especially in India. Unlike the United States, where software can be patented under certain  technical conditions,  India has stricter boundaries. Here, software “as such” is not patentable, which means just  writing code or creating an algorithm isn’t enough to get patent protection.

However, there’s a practical path forward:

If your software is integrated with a novel hardware component or brings about a technical effect, it may qualify for a patent.

You can’t patent just the lines of code. But if your software controls a unique device, improves hardware performance, or interacts with a physical system in a new way it might pass the test.

Indian patent law encourages innovation that solves real-world technical problems, not just virtual logic or data processing. That’s why, when drafting a software patent application, inventors often describe how the software is technically implemented, what specific hardware it runs on, and the tangible benefits it brings.

 “In India, software can be patented but only when it’s more than just software”

3.Criteria For Patentability

For any invention software included to be granted a patent, it needs to meet three basic criteria:

• Novelty
• Inventive step
• Industrial applicability

In simple terms, the invention must be new, not obvious to someone skilled in the field, and it must have a practical use.

When it comes to software, especially in countries like India, there’s also an extra layer: the software must produce a technical effect or be tied to hardware. Simply automating a known process or writing code that performs basic calculations won’t cut it. The software should solve a technical problem in a way that hasn’t been done before and it should be clearly described in the application to show how it works and what it achieves.

Drafting the Patent Application

Drafting a patent application for software requires more than just a description of the code. It’s about clearly defining how the software works, the technical problem it solves, and how it interacts with hardware (if applicable). The application must include a detailed description of the software’s functionality, along with flowcharts, diagrams, or algorithms that help explain the system. It’s crucial to write precise claims that cover the unique aspects of the software whether it’s a novel method of processing data or a new way of improving hardware performance. The more thorough and clear the description, the easier it will be for patent examiners to understand and evaluate the invention.

Another key element in drafting a strong application is writing precise claims that cover the novel aspects of the software. These claims should focus on the specific technical contributions, whether it’s a new algorithm, method of data processing, or system architecture. It’s important to highlight how the software improves or enhances existing technology, as this will be crucial in proving its inventiveness.

Additionally, you should also describe the working example of the software in action. This could be through use-cases or flow diagrams that demonstrate how the software behaves under different conditions. The more thoroughly you can convey the technical solution, the better chance the patent application will have of being granted.

Jurisdictional Differences

Patent laws are not the same everywhere what qualifies as patentable software in one country might not stand a chance in another. In the United States, software inventions are patentable if they meet the “Alice test,” which basically checks whether the invention is more than just an abstract idea and has a concrete technical implementation. In the European Union, the rules are more restrictive software is only patentable if it produces a further technical effect, such as controlling a machine or improving the efficiency of computer operations.

In India, software is only patentable when it is combined with hardware or causes a measurable technical effect. Simply automating a task or creating a business process using software is not enough. This means that applicants often need to position their inventions as part of a larger technical system or device. Understanding these jurisdictional differences is crucial when filing internationally, as it helps inventors structure their claims and descriptions to meet the specific legal standards of each region. A one-size-fits-all patent application is rarely successful each country demands its own strategy.

Tips for a Strong Software Patent          

Drafting a strong software patent is as much about strategy as it is about substance. First, be sure to clearly define the technical problem your invention addresses, followed by a detailed explanation of how your software provides a novel solution. Focus on what sets your invention apart whether it’s a new way to optimize data handling, a smarter user interaction model, or an improvement in processing efficiency. Describe not just what your software does, but how it does it.

Tie the software functionality to hardware or a technical effect wherever possible. This is especially important in countries like India or the EU, where software alone is not considered patentable. Use diagrams, flowcharts, and system architecture sketches to support your description. When writing claims, strike a balance between broad coverage and technical specificity this helps protect your invention from minor tweaks by competitors while avoiding rejections from the patent office. Lastly, consider working with a patent attorney who understands the nuances of software IP, especially for multi-jurisdiction filings.

 Common Mistakes to Avoid

Even the best ideas can be rejected if the patent application isn’t handled properly. One major mistake is being too vague or too broad in your claims this often leads to objections or rejections during examination. On the flip side, writing claims that are too narrow can leave your invention vulnerable to imitation, as others might work around your protection with minor changes. Another frequent issue is failing to demonstrate a technical effect, especially in software-related inventions. Without showing how your software improves functionality or solves a technical problem, the application may be dismissed as abstract or routine.

It’s also common for inventors to focus too much on coding logic and not enough on the overall system, making it difficult for examiners to assess its real-world applicability. Lastly, skipping a prior art search or misunderstanding the novelty of your invention can cause big setbacks if something similar already exists, your patent could be denied or later invalidated. Avoiding these pitfalls starts with a clear understanding of both technical requirements and patent law basics.

Patenting a software invention might seem like navigating a maze of legal and technical requirements but with the right approach, it’s entirely achievable. The key is understanding that software must offer more than just functionality; it must present a new and inventive solution to a technical problem, and in some cases, be integrated with or tied to a physical system.

Whether you’re working on a cutting-edge AI model, a medical diagnostic platform, or an automation tool, it’s worth protecting your intellectual property especially in a world where innovation moves fast and competition is fierce. By focusing on the technical impact of your invention, respecting jurisdictional rules, and drafting your application with clarity and precision, you give your software idea the best chance of becoming a legally protected innovation

Author:  Senthil, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.