Is software patentable in India?

Software as such - a set of instructions written in a programming language - is not patentable under Section 3(k) of the Patents Act 1970, which excludes mathematical methods, business methods, and computer programs per se. However, software that produces a technical effect beyond the mere running of the program on a computer - such as a novel method of data compression, a technical improvement in network communication, or a new signal processing algorithm - may qualify as a patentable invention if it meets the requirements of novelty, inventive step, and industrial applicability. The Indian Patent Office's guidelines on computer-related inventions clarify this distinction, and several software patents have been granted in India where the technical contribution is demonstrable.

What is Section 3(d) of the Patents Act and why does it matter for startups?

Section 3(d) is a uniquely Indian provision that prevents the grant of patents for new forms of known substances - such as new salts, esters, polymorphs, or formulations of an existing molecule - unless the applicant demonstrates significantly enhanced efficacy. It was introduced to prevent evergreening - the practice of filing minor modification patents to extend effective patent protection beyond the life of the original patent. This provision is most relevant to pharmaceutical and biotech startups. Any startup working in drug development, formulation technology, or biomaterial science needs specialist patent counsel familiar with Section 3(d) before filing.

How long does a patent last in India and can it be extended?

A patent in India lasts for exactly 20 years from the date of filing the patent application - not from the date of grant. There is no extension mechanism in Indian law. Once 20 years have elapsed, the invention enters the public domain and anyone can use it freely. This is fundamentally different from trademarks, which can be renewed indefinitely. For pharmaceutical startups, the gap between patent filing and regulatory approval for a new drug can consume a significant portion of the 20-year term, which is why patent strategy must be built around maximising commercial exploitation within the available term.

What is a compulsory licence and can a competitor use my patent without my permission?

A compulsory licence under Sections 84 to 92 of the Patents Act allows the government or a third party to use a patented invention without the patent owner's consent in specific circumstances. Under Section 84, any person may apply to the Controller of Patents for a compulsory licence three years after the patent is granted if the patented invention is not being worked in India, is not available to the public at reasonably affordable prices, or is not available in sufficient quantities. Under Section 92, the government can direct the Controller to grant compulsory licences in cases of national emergency or extreme urgency. The landmark Bayer v. Natco case in 2012 was India's first compulsory licence grant and remains the leading precedent in this area.

Introduction to Patents for Startups India 2026

Why Patents Matter for Startups Beyond Protection

Most startup founders think of patents primarily as protective tools - documents that stop competitors from copying your technology. This is correct but incomplete. Patents create value for startups in at least four ways that founders should understand before making any patent filing decision: they establish competitive moats that make the startup defensible; they signal technological credibility to investors and acquirers; they create licensing revenue opportunities; and they provide negotiating leverage in IP disputes. A patent that is never litigated can still be enormously valuable if it discourages competitors from entering your technology space and strengthens your fundraising narrative.

What Is a Patent Under Indian Law

Under the Patents Act 1970, a patent is a statutory monopoly granted to an inventor by the Controller General of Patents, Designs and Trade Marks (CGPDTM). The patent gives the patentee the exclusive right to make, use, offer for sale, sell, or import the patented invention in India for a period of 20 years from the filing date. In exchange for this monopoly, the patentee publicly discloses the technical details of the invention in the patent specification, contributing to the stock of public knowledge and enabling others to build on the disclosed technology after the patent term expires.

The Three Requirements of Patentability

An invention must satisfy three fundamental requirements to be patentable under Indian law. Understanding these requirements helps founders identify which of their innovations are worth pursuing for patent protection.

1
Novelty

The invention must be new - it must not have been disclosed anywhere in the world before the patent filing date. Disclosure includes published articles, conference presentations, public demonstrations, prior patents, and even the inventor's own earlier publications. This is why public disclosure before filing is so dangerous - a single conference presentation or a blog post about your technology can destroy novelty and permanently bar you from obtaining a patent on that invention.
2
Inventive Step (Non-Obviousness)

The invention must involve an inventive step - it must not be obvious to a person having ordinary skill in the relevant field at the time of filing. This is the most difficult requirement to assess objectively. A combination of two known elements that produces an unexpected result may have an inventive step. A minor modification of an existing product that any competent engineer would make as routine work does not. Indian courts have clarified that commercial success, though not determinative, can be evidence of non-obviousness.
3
Industrial Applicability

The invention must be capable of being made or used in any kind of industry. This is a relatively easy requirement to satisfy for most technology and manufacturing innovations. Pure scientific discoveries, mathematical theorems, and aesthetic creations do not qualify - they are not capable of industrial application in the legal sense.

What Cannot Be Patented in India — Section 3 Exclusions

Section 3 of the Patents Act lists a significant number of subject matter categories that are expressly excluded from patentability, regardless of whether they are novel and non-obvious. For startup founders, the most commercially relevant exclusions are:

Excluded Subject Matter	Section	Startup Impact
Inventions contrary to public order or morality	3(b)	Rare in practice
Discoveries of scientific principles	3(c)	Basic research startups
Mathematical methods	3(k)	Fintech, AI/ML algorithms as such
Computer programs per se	3(k)	Pure software - but technical effect can overcome this
Business methods per se	3(k)	Business model patents not available
New forms of known substances without enhanced efficacy	3(d)	Critical for pharma and biotech startups
Methods of agriculture or horticulture	3(h)	Agritech process patents limited
Essentially biological processes for plants/animals	3(j)	Biotech and agritech founders
Traditional knowledge	3(p)	Prevents biopiracy but limits some natural product patents

Patent Ownership — Who Owns the Invention

Under the Patents Act, the first and true inventor is entitled to apply for a patent. However, ownership of the patent application and the granted patent is a separate question from inventorship - and this distinction is where startup IP ownership problems most commonly arise. An employee who invents something in the course of their employment typically assigns the patent rights to the employer under the terms of their employment agreement. A freelancer or independent contractor who develops an invention does not automatically assign it - a specific written assignment agreement is required. A co-founder who develops an invention before the company is incorporated owns it personally unless they assign it to the company.

For Indian startups, this means that before any patent application is filed, the chain of title must be verified: who invented it, what contract governs their relationship with the company, and has a written assignment been executed? These questions are far easier to address before filing than after, when a dispute about inventorship or ownership can hold up prosecution for years.

Patent Rights and Their Limits

A granted patent gives the patentee the right to exclude others from making, using, selling, offering for sale, or importing the patented invention in India during the patent term. These rights are not absolute. Section 47 permits the government to use a patent for its own purposes. Section 107A allows for research and experimental use, regulatory approval preparation (Bolar exception), and parallel import of patented products sold by or with the consent of the patent holder. Compulsory licences under Sections 84 to 92 can require a patent owner to allow third-party use under specific circumstances.

Patent Infringement

Patent infringement in India is actionable in the High Court - District Courts have no jurisdiction. Section 104 provides that a patent infringement suit must be filed in the High Court of competent jurisdiction - typically the High Court where the plaintiff resides, carries on business, or where the cause of action arises. Remedies include injunction (including interim injunction pending trial), damages or account of profits (elect one), and delivery up of infringing articles. Criminal remedies for patent infringement are not available under Indian law - it is a purely civil wrong.

Critical Patent Red Flag

Presenting your invention at a conference, publishing a paper, posting a technical description online, or demonstrating it to potential customers before filing a patent application. Any public disclosure destroys novelty and permanently prevents you from obtaining a patent on that invention in India and most other countries. File first - disclose after. If you have already disclosed, consult a patent attorney immediately to assess whether any filing options remain.

For the practical next step - how to file a patent and build a filing strategy - read the Patent Filing Strategy guide. For the complete IP framework, visit the Startup IP Hub.

Introduction to Patents for Indian Startup Founders — Patentability, Rights, Infringement, and Strategy