In today’s digital era, software innovations have become increasingly integral to various aspects of our lives. It is essential to protect software innovations to maintain competitive advantage and foster continued innovation. Ensuring robust legal protection for these intellectual creations is therefore crucial. 

Software protection in India is governed by a complex legal framework designed to balance the interests of creators, businesses, and the public. Understanding these protections is vital for software developers and companies seeking to secure their intellectual property rights. 

Scope of Protection in Copyright

Copyright protection is a form of intellectual property right granted to the creators of original works. It covers a wide range of creative works, including literary, musical, and artistic compositions. In the context of software, copyright protection is particularly relevant as it safeguards the author’s unique expression of ideas through code.

For software, copyright protection ensures that the original source code and object code, which are considered the author’s intellectual property, cannot be copied, commercially exploited, or used without permission. This protection is important for software developers and companies, as it helps maintain the commercial value of their products and deter unauthorised use and distribution.

Coverage of Copyright for Software

As per the Indian Copyright Act, 19571, software is defined under the following categories:

  • Section 2(ffc) mentions “computer programme” means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result.”
  • Section 2(o) of the Act includes “computer programmes” within the definition of literary works. This classification allows software to be protected in the same manner as other literary works like books and articles.

The aspects of software that are protected under copyright include:

  • Source code: The human-readable instructions written by a programmer.
  • Object code: The machine-readable version of the source code after it has been compiled.
  • Overall structure: The general layout, organisation, and structure of the software.

By protecting these elements, copyright law ensures that the specific expression of the software developer’s ideas is safeguarded against unauthorised copying and use.

Limitations of Copyright

While copyright provides significant protection for software, it has its limitations. One of the fundamental principles of copyright law is that it protects the expression of an idea, but not the idea itself. This means that while the specific code written by a programmer is protected, the underlying processes, or methods described by that code are not. This limitation can be significant in the software industry, where functional aspects and innovative processes are often the most valuable parts of a programme.

Additionally, copyright does not protect the functional aspects of software. This means that the way a programme operates, the methods it uses, and the processes it follows cannot be protected under copyright. As a result, competitors can develop similar software that performs the same functions, as long as they do not copy the exact code or the specific expression used in the original software.

Patent Protection for Software

Patents are a form of intellectual property that grants the patent holder exclusive rights to their invention for a specified period, typically 20 years. Patents provide stronger protection than copyrights because they safeguard not only the specific expression of an idea but also the idea itself and its functional aspects. This means that a patented invention cannot be used, made, sold, or distributed without the patent holder’s permission, offering robust security against unauthorised use and encouraging innovation by protecting the inventor’s investment and effort.

Section 3(k) of the Patents Act2

The Indian Patents Act, 1970, contains specific provisions about what can and cannot be patented. Section 3(k) of the Act explicitly excludes “a mathematical or business method or a computer programme per se or algorithms” from being patented. This exclusion aims to prevent the patent system from being clogged with trivial or broad claims that could hinder technological progress and innovation.

By excluding computer programme “per se,” the law seeks to prevent the patenting of basic algorithm in software programmes without any novel technical contribution. This ensures that only significant technological advancements that involve software, rather than basic algorithms or business methods, can be considered for patent protection.

If a novel technical effect or improvement can be demonstrated, protection is available. The key is that the software must go beyond a mere computer programme and contribute to a technical field in a meaningful way.

Court Interpretations

Ferid Allani v. Union of India3

The case of Ferid Allani v. Union of India is pivotal in understanding the patentability of software in India. In this case, the petitioner sought a patent for a “method and device for accessing information sources and services on the web.” The application was initially rejected under Section 3(k) of the Patents Act, which excludes “computer programmes per se” from being patented.

However, the Intellectual Property Appellate Board (IPAB) and, subsequently, the Delhi High Court held that the invention was not merely a software programme. The court emphasised that if a software-based invention demonstrates a technical contribution or technical effect, it should be eligible for a patent. The judgement underscored that a narrow interpretation of Section 3(k) would be detrimental to technological innovation. Thus, the case established that software inventions with a technical effect, such as an improvement in computing technology or efficiency, can qualify for patent protection in India.

Telefonaktiebolaget LM Ericsson Vs Intex Technologies4

In the case of Telefonaktiebolaget LM Ericsson Vs Intex Technologies, Ericsson sued Intex for infringing its patents related to mobile technology, which included software components. The Delhi High Court ruled in favour of Ericsson, recognising that the patents in question involved technical advancements and provided a significant technical contribution.

The court affirmed that inventions integrating software components could be patented if they offered a technical solution to a technical problem. This decision reinforced the notion that software-related inventions are not automatically excluded from patentability. The key criterion is the presence of a technical contribution that extends beyond the mere application of a software programme.

Shaping the Understanding of Software Patents in India

These landmark cases have significantly influenced the interpretation of software patentability in India. They highlight the judiciary’s progressive stance that innovations involving software should not be excluded from patentability solely because they reference software programmes or algorithms. The critical factor is whether the invention provides a technical contribution or effect.

The rulings in these cases have set a precedent for evaluating software patents, encouraging innovators to seek patent protection for software-related inventions that demonstrate technical advancements. This judicial interpretation aligns with global practices, promoting a balanced approach to fostering technological innovation while adhering to statutory limitations.

Trade Secrets as a Mode of Protection 

Trade secrets are a form of intellectual property that protects confidential business information that provides a competitive edge. Unlike patents or copyrights, trade secrets do not require registration. Instead, they derive their protection from their inherent secrecy. Information such as formulas, practices, designs, instruments, or compilations of information that are not generally known and offer a business advantage can be considered trade secrets. Their importance lies in their ability to safeguard sensitive information indefinitely, provided the secrecy is maintained, offering a unique and robust form of protection.

Applicability to Software

Trade secrets are particularly relevant to software because they can protect a wide range of software-related information. This includes source code, algorithms, proprietary methods, and processes. For example, a unique algorithm that improves the efficiency of a programme or a specific source code implementation can be protected as a trade secret.

Maintaining the secrecy of software trade secrets involves implementing strict security measures. Companies often use confidentiality agreements (NDAs) to legally bind employees, contractors, and business partners to secrecy. Additionally, access to the trade secret information is restricted to only those who need to know for their work, and physical and digital security measures are put in place to prevent unauthorised access.

Frequently Asked Questions

1. How long do software patents last?

Software patents, like other patents, typically last for 20 years from the date of filing the patent application. This term is standardised to encourage innovation while ensuring that, after a reasonable period, the invention becomes publicly available, promoting further research and development.

2. What can be patented in software?

In the context of software, patentable subject matter includes software-related inventions that demonstrate a novel technical solution or improvement. For instance, a software programme that enhances the efficiency of hardware operations or introduces a new method of data processing can be considered for patenting. It’s crucial that the software exhibits a technical effect beyond mere software functionality.

3. Can you patent open-source software?

Yes, open-source software can be patented, provided it meets the patentability criteria. However, the open-source nature implies that the source code is freely available to the public, which can complicate the enforcement of patent rights. The patent holder would have to navigate the terms of the open-source licence while maintaining their patent rights. The decision to patent open-source software should be carefully evaluated based on the intended use and distribution.

4. Can software be patented in India?

Yes, software can be patented in India, but with certain limitations. According to Section 3(k) of the Patents Act, 1970, computer programmes per se are not patentable. However, if the software demonstrates a technical effect or a technical contribution, such as improving the efficiency of a hardware system, it may be considered for patent protection. The focus is on the technical advancement that the software brings about.

5. How can software be protected in India?

Software in India can be protected through various intellectual property rights mechanisms:

  • Copyright: Software is protected under copyright as a literary work. This protection covers the source code, object code, and sometimes the graphical user interface (GUI) of the software.
  • Patents: Software-related inventions that show a technical effect or improvement can be patented, providing robust protection for the functional aspects of the software.
  • Trade Secrets: Proprietary algorithms, processes, and other confidential information related to software can be protected as trade secrets. This requires implementing stringent confidentiality measures and agreements to prevent unauthorised disclosure.

These combined methods offer a comprehensive approach to safeguarding software innovations, ensuring legal protection and fostering further technological advancements in the industry.

In summary, software protection in India involves three main IP routes: copyright, patents, and trade secrets. Copyright protects the expression of software, patents can cover software-related inventions with technical effects, and trade secrets safeguard confidential information without formal registration.


  1. Copyright Act ,1957
  2. The Patents Act, 1970
  3. < last accessed on 05/06/2024 >
  4. < last accessed on 05/06/2024 >
Koushik Banerjee

Trademark Attorney

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