INDIA Trends and Developments Contributed by: Anu Paarcha, Aniruddh Bhatia, Mishthi Dubey and N Parvati, Saikrishna & Associates
Litigate to Innovate: the Emerging Trends in Indian Patent Jurisprudence The Indian patent litigation landscape has expe- rienced notable changes in the past year, driven by technological advancements and the demand for efficient dispute resolution. While India has been an active hub for pharmaceuticals and life sciences patent litigation, it has increasingly become a focal point for various other types of patent litigation, including standard essential patent (SEP) and FRAND litigation and computer software patents. The year 2024, in particular, saw significant developments in patent litigation, emphasising expedited trials rather than the tra- ditional lengthy process of seeking interim relief. This article will explore the key trends that have emerged in this field. Software/Computer Program/Business Method: Per Se Patentable? The governing patent statute in India – ie, the Patents Act, 1970 – has, through Section 3(k), traditionally maintained a restrictive approach towards software/algorithm/business method patents. The provision explicitly excludes inven- tions that are “computer programs per se”, algo- rithms, or mathematical and business methods from patentability. India’s stance is rooted in its history of preventing monopolies in techni- cal functions and ensuring software accessibil- ity for its tech sector. The Patent Office’s early guidelines interpreted this exclusion broadly, effectively creating a high barrier for software- related inventions. However, subsequent guide- lines – ie, the Computer-Related Invention (CRI) Guidelines issued by the Controller of Patents – have from time to time clarified the scope of this exclusion and indicated that computer programs which allow for a technical contribution may be patentable.
In contemporary times, however, the landscape of software patent protection in India has under- gone a paradigm shift, driven by a series of watershed judgments from the Delhi and Madras High Courts. Beginning with Ferid Allani v Union of India and Others, 2019:DHC:6944, in 2019 the Delhi High Court laid the groundwork for a more nuanced interpretation of software patentability, noting that “[a]cross the world, patent offices have tested patent applications in this field of innovation, on the fulcrum of ‘technical effect’ and ‘technical contribution’”. If the invention demonstrates “technical effect” or “technical contribution”, it is patentable even though it may be based on a computer program”. Spurred by said observations, Indian courts have seen a flurry of cases challenging the Pat- ent Office’s orders rejecting patents for comput- er software-related inventions. In 2023, the Delhi High Court in Microsoft Technology Licensing LLC v The Assistant Controller of Patents and Designs, 2023:DHC:3342 held that “[i]f the sub- ject matter is implemented on a general-purpose computer but results in a further technical effect that improves the computer system’s functional- ity and effectiveness, the claimed invention can- not be rejected as non-patentable for being a ‘computer programme per se’”. It directed the Controller of Patents to reassess the examina- tion of the patent. In 2024, the Delhi High Court in cases such as Ab Initio Technology LLC v The Assistant Con- troller of Patents and Designs, 2024:DHC:5708 held that a benevolent approach is to be taken while assessing “technological effect/contribu- tion”, and sought to illustrate technical effect in the following manner: “‘Technical effect’ is the bridge or the connect between an input and the processor. If an ingen-
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