Can You Patent Software and AI in India? Section 3(k) and the CRI Guidelines 2025 Explained

Not every programme is excluded — Section 3(k) of the Patents Act, 1970 excludes a computer programme per se, mathematical method, business method or algorithm, but the CGPDTM Guidelines for Examination of Computer-Related Inventions (CRIs) 2025 dated 29 July 2025 — the first revision since 2017 — reaffirm that a computer-implemented invention demonstrating a technical effect and technical contribution can be patentable, with no requirement of novel hardware and with both system and method claims available if the specification fully supports them. For Kerala AI, blockchain and quantum startups that had filings rejected under the old approach for lacking hardware recitation, the 2025 Guidelines change the drafting exercise.

What does Section 3(k) actually exclude?

The text is four limbs joined by or, each with its own scope:

Section 3(k) — what are not inventions: “a mathematical or business method or a computer programme per se or algorithms”

The Joint Parliamentary Committee that inserted per se in 2002 did so to preserve patentability for programmes with an ancillary technical application — the Guidelines’ entire structure is built on that distinction.

What did the CRI Guidelines 2025 change from 2017?

The 2017 Guidelines left examiners and applicants arguing past each other about whether hardware recitation was needed. The CRI Guidelines 2025 (29 July 2025) consolidate a decade of High Court guidance and settle three points:

1. Structured examination — inventive concept first. The examiner must identify the inventive concept of the claim as a whole, not dissect the claim into hardware and software parts and reject the software part in isolation. The question is whether the claim, read with the specification, is to a computer programme per se or to a technical application producing a technical effect.
2. Novel hardware not required. Reaffirming Ferid Allani v. Union of India (2019) Delhi High Court, Microsoft Technology Licensing v. Assistant Controller (Delhi High Court, C.A. 29/2022, 2023), Microsoft Technology Licensing v. Assistant Controller (Madras High Court, 2024), Raytheon Company v. Controller General (2023) Delhi High Court and BlackBerry Limited v. Controller of Patents (C.A. 318/2022, 30 August 2024) Delhi High Court (capability enhancement of a device avoids Section 3(k) even without new hardware; the companion BlackBerry appeal, C.A. 229/2022, was refused), the Guidelines state that a technical contribution can lie in improved functionality, not only in a new physical component.
3. AI disclosure standard. For AI and machine-learning inventions, the specification must disclose the model architecture, training methodology and parameters, and validation or test results showing the technical effect — for example, improved processing speed, enhanced security, reduced latency, or control of an industrial process. A claim that recites a generic neural network producing a business result without disclosing how the technical system is improved fails the test.

The Guidelines include an Annexure I of illustrative allowable and non-allowable claims per Section 3(k) limb — the most practical part of the document for drafters — and frame the assessment around a technical solution to a technical problem yielding a technical effect (the Guidelines’ technical effect and technical contribution test).

How does the technical effect test work in practice?

A quick decision tree that mirrors the Guidelines’ logic:

Claim as filed
  └─> Identify the inventive concept (what does the claim actually contribute?)
       └─> Is the contribution only a business method / abstract algorithm / programme per se
           with no disclosed technical effect?
            ├─ Yes → Section 3(k) exclusion applies — not patentable
            └─ No → Does the specification disclose a technical effect
                and technical contribution beyond the programme itself?
                 ├─ Yes, credibly disclosed and supported by description and results
                 │    → Not a programme per se — proceed to novelty, inventive step
                 │      and industrial applicability (Sections 2(1)(j), 2(1)(ja), 2(1)(ac))
                 └─ No, or effect asserted only in argument, not in specification
                      → Excluded — amend to disclose the effect or face objection

Examples that illustrate the line:

• Patentable (if disclosed): An image-processing pipeline that reduces bandwidth by 40 percent through a disclosed compression and edge-detection sequence, with architecture, training data governance and comparative test results in the specification — technical effect in network utilisation and processing speed.
• Patentable (if disclosed): A semiconductor fabrication control system where an ML model adjusts process parameters in real time to improve yield, with control-loop disclosure — technical effect in industrial process control.
• Not patentable: A claim to a method of calculating loan eligibility scores by weighting credit factors, implemented on a generic computer and described only by the business rules — business method, excluded even though a computer is recited.
• Not patentable: A claim to an algorithm for sorting search results by popularity, without disclosure of how the underlying retrieval system is technically improved — algorithm per se.

Law vs interpretation: Section 3(k) is the statutory exclusion. Whether a particular claim crosses into technical effect is interpretation by examiners and courts on the specification as filed — which is why the specification’s disclosure, not the claim’s wording alone, decides the case.

What should a Kerala startup put in the specification?

The specification is where the technical-effect case is won or lost. Under the 2025 Guidelines, an AI, blockchain or quantum filing should include:

• Technical problem statement — what existing technical system, device or process is deficient and how the deficiency is technical, not commercial (latency, accuracy, resource consumption, security).
• Technical solution — how the invention solves that problem through a computer-related implementation, described as a system and, where appropriate, as a method — both claim forms are allowable if supported.
• Architecture, training and parameters — for AI, the model architecture, training methodology, parameters and evaluation methodology, not a bare reference to a neural network.
• Test results and comparative data — before-and-after measurements showing the technical effect (speed, accuracy, resource use, yield) so the effect is not merely asserted in prosecution.
• Hardware context without hardware novelty — describe the computing environment in which the effect is achieved; do not fabricate a new hardware component to satisfy a supposed hardware requirement that the Guidelines say does not exist.

For Kochi startups using KSCSTE’s IP facilitation services — the Patent Information Centre – Kerala (PIC-Kerala), a TIFAC-DST satellite centre, and the Intellectual Property Rights Information Centre – Kerala (IPRICK), the State’s nodal IPR agency, through which KSCSTE empanels IP firms for subsidised drafting and filing and offers free prior-art search (confirm eligibility and scope with the Kerala State Council for Science, Technology and Environment before relying on it) — the 2025 Guidelines are particularly relevant because a significant number of earlier CRI refusals turned on the absence of hardware recitation — the ground the new Guidelines expressly correct.

How does this sit with copyright, trademark and trade secret?

A technology business rarely needs one IP right in isolation:

• Copyright — Section 2(o) Copyright Act — protects the specific code expression automatically (see the software copyright guide). Copyright does not protect the inventive idea the code implements.
• Patent — Section 3(k) Patents Act as interpreted by the CRI Guidelines 2025 — protects the inventive technical solution where the technical-effect test is met, for 20 years from filing, subject to examination.
• Trademark — Trade Marks Act, 1999 — protects the brand through which the solution is sold (see the online trademark infringement guide).
• Trade secret — contract and confidence — protects undisclosed know-how that is not published in the patent specification (see the trade secrets and NDA guide). Publication in a patent specification ends secrecy — choose the portfolio accordingly.

Primary sources

• Patents Act, 1970 — India Code (Sections 2(1)(j), 2(1)(ja), 2(1)(ac), 3(k), 10 on specification)
• CGPDTM Guidelines for Examination of Computer-Related Inventions (CRIs) 2025 — IP India, 29 July 2025 (Annexure I illustrative claims; AI disclosure standard)
• Ferid Allani v. Union of India (2019) Delhi High Court; Microsoft Technology Licensing v. Assistant Controller (Delhi High Court, C.A. 29/2022, 2023); Microsoft Technology Licensing v. Assistant Controller (Madras High Court, 2024); Raytheon Company v. Controller General (2023) Delhi High Court; BlackBerry Limited v. Controller of Patents (C.A. 318/2022, 30 August 2024) Delhi High Court