Patentability of CRI’s in India: Assessing the 2025 IPO Guidelines

Introduction

The legal status of Computer Related Inventions (CRI’s) has largely been in debate over the years. Section 3(k) of the Patents Act, 1970[1] expressly bars the patentability of computer programmes per se. Recently, on the 29th of July, 2025 the Indian Patent Office (IPO) has issued certain guidelines for Examination of Computer Related Inventions[2] intended to clarify their position on section 3(k) among other thigs.

To qualify for patent, a subject must first be an invention. Section 3 provides for what does not constitute an invention under the Patents Act, 1970. Section 3(k) in particular reads as -

“a mathematical or business method or a computer programme per se or algorithms”

Regarding the scope of the term ‘computer programme per se’ the guidelines explain that the underlying substance of an invention is to be given primacy during an examination. If the substance of any claim exists in the form of a method/process, apparatus/system/device, computer program product/computer readable medium, then it cannot be patented. The reasoning for the same provides that the exclusion under section 3(k) must not be bypassed by mere wordplay when the substance remains a computer programme.

On a reading of the new guidelines along with the patent act, the following question arises – Can any claim adjacent or incidental to the subject matter in section 3(k) be placed under the exception alongside mere computer programmes? The new guidelines seem to indicate that such incidental claims also must be brought under this exception. This blog argues that the interpretation of ‘computer program per se’ in the guidelines is erroneous as it runs the risk of undermining the legislative intent of the parliament, judicial clarity of courts, etc.

Doctrinal Misstep in Definition

An algorithm is generally an abstract mathematical procedure. This could include a variety of processes like statistical correlation, sorting lists, splitting data, etc. The act does not allow for such abstract processes to become a patentable claim as it would restrict basic mathematic functions. It cannot be allowed that the rights mathematical process be owned be a person as it goes against the interest of technological development.

The guidelines have provided a definition for ‘algorithm’ under clause 2.1. The definition has been entirely extracted from the Madras High Court judgement - Microsoft Technology Licensing LLC vs Assistant Controller of Patents and Designs.[3] This case is one which deals with rejection of a patent claim on the grounds of section 2(ja) of the Patents Act, 1970[4] i.e., the definition of inventive step. This other aspect being the crux of the case, the court did not delve into the assessment of claims with respect to the exception, namely section 3(k). This lack of specificity would lead to a shortsighted approach in adjudicating claims regarding computer programmes and algorithms.

An inventive step analysis is one that arises subsequent to the actual determination of whether a subject matter is patentable. It is used to assess novelty and apparent obviousness of an object within a patentable subject matter. It exists at a layer below a patentability assessment. On the other hand, section 3(k) provides for an exception to what is considered an invention. It expressly prohibits the patentability of a computer programme per se and algorithm by prohibiting their status as an invention. This assessment, unlike inventive step, is primary in determination of whether the subject matter constitutes an invention.

By accepting the court definition in Microsoft Technology, the IPO effectively front-loads the exclusion as per the patent act and creates a risk for premature denial of patents due to this restricted view. A doctrinal misstep at the definition stage itself can severely restrict the Indian landscape when it comes to examination of computer related patents without any reasonable justification for doing so.

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Legislative Intent v. Interpretation

It is crucial to note whether due importance has been given to legislative intent while drafting the new guidelines.

However, it must be observed whether such a construction is in line with legislative intention. The Joint Parliamentary Committee in 1999 upon examination of the Patents (Second Amendment) Bill, 1999[5] have expressed their stance upon the addition of the suffix ‘per se’ to the term computer programme under section 3(k) of the Patents Act, 1970. The report reads as -“In the new proposed clause (k) the words ''per se" have been inserted. This change has been proposed because sometimes the computer programme may include certain other things, ancillary thereto or developed thereon. The intention here is not to reject them for grant of patent if they are inventions. However, the computer programmes as such are not intended to be granted patent. This amendment has been proposed to clarify the purpose.”[6]

The IPO was not oblivious to the above during the drafting of the new guidelines. In fact, the intent of the legislature was verbally affirmed in the guidelines under clause 4.5.4 which reads as –

“…the legislative intent for the exclusion under section 3(k) is not absolute with regard to all computer programme led inventions, rather it leaves scope for allowability of certain other things, ancillary thereto or developed thereon.”

Though declared, has it been sufficiently incorporated into the guidelines? The interpretation of the scope of ‘algorithm’ under the guidelines seem to be contrary. From an analysis of clause 4.4.2[7] [Form and Substance], it can be observed that the term algorithm was to be given a broader meaning than that of computer program. It proceeds to include various forms of claims such as method/process, apparatus/system/device, computer program product/computer readable medium, which are to be unpatentable, along with a non-exhaustive list of examples in Annexure-I.

The parliament's intention is crystal clear as to what is to be excluded under the act as per the report. The intent behind the addition of per se is to isolate the term computer programme from any ancillary claims made that would constitute an invention by themselves. However, the guidelines seem to follow an inverse reasoning. The scope of algorithm has been expanded in such a manner which makes it indistinguishable from ancillary claims regarding computer programmes in certain scenarios.

For example, an apparatus that is aimed at executing an algorithm would not be patentable as it is merely a program per se. However, an apparatus aimed at controlling a robotic hand which user sensor feedback, though a genuine invention, may be denied patent due to this broad definition of algorithm. This enhanced scope creates a scenario where ‘algorithm’ entirely overshadows and negates the effectiveness of ‘computer program per se’ as an exclusion.

Apart from legislative intent, this interpretation of the patents act also contravenes certain judicial trends that have arisen in recent years. In precedents like the case of Ferid Allani vs Union of India,[8] the Delhi High Court in 2019 has recognized ‘technical contribution’ as a valid ground of patentability while upholding the Joint Committee Report. The current interpretation of algorithm underscores the developing Indian jurisprudence in this regard aside from contravening the parliament's position. While it is important to prohibit ingenuine computer creations to obtain a patent title, it is equally if not more crucial to ensure that genuine original creations do not get restricted from the status of invention.

Vagueness of ‘Mere Incidental Effects’

The guidelines have not left the wide scope of ‘algorithm’ unchecked, it has its own exclusion. Under clause 4.5.4[9], the guidelines essentially state that the exception of computer programme per se and algorithm under section 3(k) can be bypassed under a certain condition. This condition requires the “...presence of a technical solution to a technical problem through technical means and thereby achieving technical effects, which are beyond mere incidental effects…”

With this, the IPO intends to allow inventions that produce tangible improvements in technology rather than mere incidental algorithmic processes. This counter to the exclusion is a step in the right direction which is in line with parliamentary legislative intent. Although, there does still exist a major shortcoming. The term ‘mere incidental effects’ has been left undefined and completely vague.

Stating that the algorithm must achieve a technical effect beyond a mere incidental effect is simply descriptive in nature, it provides no usable benchmark. It neither defines clearly what counts as a ‘technical effect’ nor does it provide a benchmark for assessing ‘mere incidental effect.’ The guidelines further fail to provide any precedential value. No such judicial decisions have been cited that clarify the concept and aid readers gain an understanding as to what the threshold of incidental effect is.

Way Forward

It is no question that the current legal landscape encompassing computer programmes and algorithms needs much rework and clarity. In light of the abovementioned, the author would like to put forward a few possible constructive solutions.

Firstly, a clarificatory circular to be released by the IPO with the effect of restricting the broad scope given to ‘algorithm’ as per the current guidelines. This is to bring the rules in line with the legislative intent depicted in the Joint Parliamentary Committee Report, keeping the guidelines intra vires its parent act.

Secondly, provide an updated annexure list including illustrative examples on the clarified position. A change in definition of ‘algorithm’ naturally requires significant reshaping in the provided examples. New illustrations that adopt the clarified stance are essential as this would demonstrate the practical applicability of the corrected guidelines and would greatly assist in distinguishing software per se and software with technical contribution.

Thirdly, a coherent standard to be introduced to determine the constituents of mere incidental effect. The IPO can release a series of borderline scenarios regarding the assessment of incidental effects. This would go a long way in acceptable determination of what constitutes a genuine invention by giving a clear standard or threshold that is to be observed by the examiners.

Conclusion

Due to the confusion of auxiliary claims with "computer programs per se," the 2025 Guidelines

for Examination of Computer-Related Inventions run the risk of overexpanding the exclusion under Section 3(k) even though they are a huge leap towards the updating of India's patent system. Uncertainty in CRI determination is created by lack of incorporation of judicial advancements, critical oversight regarding legislative intent, and ambiguity surrounding "technical effect." Consistency and certainty are important for ensuring innovation and investor confidence. These regulations must be refined by the IPO to ensure that they encourage technical progression without undermining the delicate balance that Parliament envisioned.

Author: Praneet Reddy, 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. 

[1] Patents Act 1970, s 3(k) (India)

[2] Office of the Controller General of Patents, Designs and Trade Marks, ‘Guidelines for Examination of Computer Related Inventions (CRIs)’ (29 July 2025)

https://ipindia.gov.in/Home/NewsDetail?News=29%20July%202025%20%3A%20Publication%20of%20New%20Guidelines%20for%20Examination%20of%20Computer%20Related%20Inventions%20(CRIs)%20-%202025 accessed 9 October 2025

[3] Microsoft Technology Licensing LLC v Assistant Controller of Patents and Designs (2024) Madras HC, WP No 12193 of 2021 (decided 3 July 2024)

[4] Patents Act 1970, s 2(ja) (India)

[5] Patents (Amendment) Bill 2002 (Bill No 123 of 2002) (India)

[6] India, Joint Committee on the Patents (Second Amendment) Bill, 1999 (Government of India, 1999)

[7] [7] Office of the Controller General of Patents, Designs and Trade Marks, ‘Guidelines for Examination of Computer Related Inventions (CRIs)’ (29 July 2025)

https://ipindia.gov.in/Home/NewsDetail?News=29%20July%202025%20%3A%20Publication%20of%20New%20Guidelines%20for%20Examination%20of%20Computer%20Related%20Inventions%20(CRIs)%20-%202025 cl 4.4.2 accessed 9 October 2025

[8] Ferid Allani v Union of India (Delhi High Court, 12 December 2019) W.P.(C) 7/2014, 2019 SCC OnLine Del 11867

[9] Office of the Controller General of Patents, Designs and Trade Marks, ‘Guidelines for Examination of Computer Related Inventions (CRIs)’ (29 July 2025)

https://ipindia.gov.in/Home/NewsDetail?News=29%20July%202025%20%3A%20Publication%20of%20New%20Guidelines%20for%20Examination%20of%20Computer%20Related%20Inventions%20(CRIs)%20-%202025 cl 4.5.4 accessed 9 October 2025