CRI Blog Series Blog 1

I.       Introduction

The Indian Patent Office has recently published the Draft Guidelines for Computer-Related Invention, 2025.[1] The discussion for patentability of the Computer Related Inventions (CRIs) has emerged from the qualifying word per se appended to the category “computer program” mentioned in cl. (k) u/s 3. This provision was introduced in the Patent Act vide the 2002 amendment.[2] To understand the true meaning of the word “per se” some historical legislative context might be useful. The original bill, as introduced in 1999, did not have qualifying words per se with computer programs.[3] The word “per se” was recommended by the joint committee with the intent: “… 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.”[4] The Indian Patent Office(IPO) issued guidelines in 2016 (2016 Guidelines) and further revised them in 2017 (2017 Gudelines) for the examination of CRIs to bring uniformity and consistency in the patent examination procedure[5]. To grapple with rapidly evolving technologies and corresponding inventions to foster consistency, the IPO has proposed new draft guidelines.[6] In this series of blogs, an effort is made to understand the evolution in CRI jurisprudence and the significant developments through the new guideline.

II.    Evolution of CRIs related jurisprudence in India.

The exclusion under cl.(k) of Section 3 reads as, “a mathematical or business method or a computer programme per se or algorithms”[7]. The plain reading of this provision will bring out four exclusionary categories within cl. (k) as follows:

a.         mathematical method,

b.         business method,

c.         computer program per se, and

d.         algorithms.

Section 3 largely deals with the subject matters or inventions which may qualify for other tests under the Patent Act, such as novelty, non-obviousness, etc., but are barred from getting protection in the form of a patent. The arrangement of Section 3 will bring to notice that each clause creates a separate class of exclusion from patentability, and within each clause, there are multiple categories which are analogous so that they form a single class of exclusionary categories. When any objection is raised by the opponent or examiner for any invention on the ground of contravention of cl. (k) such an objection can be made specifically relying on one of the four exclusionary categories within the clause or one or more categories.

A.    Evolution of Technical Effect and Technical Contribution Test

The Indian courts, while interpreting the effect of per se qualification, have adopted and evolved a test of technical effect or technical contribution for determining patentability u/s 3(k).

The Hon’ble Delhi High Court (DHC) in the Ericsson case has held that the invention having a technical contribution or technical effect, and which is not merely a computer program, is a patentable invention.[8] In Ferid Allani, the Hon’ble DHC has observed that the technical effect was defined in the 2013 draft guidelines, but the same was absent in the 2017 guidelines. Observing this development, Pratibbha M Singh, J., opined that the patentability test of technical effect and technical contribution has been well settled, and the meaning of technical effect is no longer in dispute.[9] Patentability of CRIs and their dependence on hardware components have changed over the period. In the 2016 Guidelines, novelty of hardware, or technical contribution in actual hardware, was listed as an essential patentability requirement for CRI.[10] Although this requirement for patentability was dropped during the revision of guidelines in 2017. The Hon’ble DHC in 2023, relying on Ericsson Case (Supra) and 2017 guidelines, has held that a pure software program is also patentable if it provides a technical solution to a technical problem, and the presence of a hardware component is not necessary.[p1] [VT2] [11] The Parliamentary Standing Committee recommended that IPR protection be given for an approach in linking mathematical models or algorithms to the tangible technical device or practical applications.[12] These recommendations are analogous to the patentability criterion of technical effect and technical contribution evolved by the Courts. The Hon’ble DHC has held that for technical effect or technical contribution, novelty of hardware is not a necessary element, but improvement of scheduling of jobs in a High-Performance Computing system (hardware) is sufficient. [13]

The court while overturning the objection of the controller for a cookie based two level authentication method/ system on a ground that the invention is a mere computer program per se held that, computer program used as a mere tool or means for creating a technical solution to be implemented on a general-purpose computer is a patentable invention.[14] The Madras High Court has summarised its understanding of the s. 3(k) as an invention is patentable if it has a technical effect which are not limited to data sets or particular applications and improves the efficiency of the system or has an effect on hardware.[15]

Through above above-cited cases, the various Hon’ble High Courts have applied technical effect or technical contribution as a test for patentability. By application of such tests, the courts have created lines dividing inventions into two territories of patentability and non-patentability. In taxation law, it has been a settled and accepted proposition by Indian courts that argument by analogy is unavoidable to determine whether a particular expenditure is capital or revenue nature.[16] A similar approach can be adopted in the patent law for determining patentability u/s 3(k) to ensure consistent treatment of inventions. For understanding this patentability line, we need to analyse in detail various cases where the technical effect or contribution is applied.

B.     What does technical effect or technical contribution connote?

What is a Technical Effect and Technical Contribution under EU Patent Law[p3] [VT4] 

Many of the previous cases cited above have acknowledged similarity in EU patent law regarding computer programs, and they have used similar standards of technical effect and technical contribution in India to analyse patentability. In the EU, it is recognised that the normal manipulation of computer hardware by a computer program is not a technical effect. If the computer program brings an effect which is patentable, then the exclusion of computer programs is not applied to such inventions.[17] In determining technical effect, a comparison with prior art shall not be made[p5] [VT6] . The improvement of the processing time of the non-patentable process above the cited prior art can not constitute a technical effect.[18] Computer-implemented data structures that map functional data of a computing system may have a technical effect, but structuring cognitive data for human interpretation does not have a technical effect.[19]

What is the Technical Effect and Technical Contribution in Indian CRI Jurisprudence?

To assess the technical contribution of the invention claimed the claim should be read along with the explanation given in the complete specification.[20] If such a contribution is purely a sequence of instructions, then it needs to be examined under the exclusionary category of algorithms.[21] If an invention creates a technical contribution for hardware beyond the program itself, meaning by solves any technical problem, or has further technical effects, then such an invention is patentable.[22] The Hon’ble DHC has held that the inclusion of words per se wasto allow patents which provide a technical contribution over the prior art.[23] This observation has also been used in subsequent cases, which gives the inference that Indian jurisprudence as of now allows comparison with prior art to determine the presence of technical contribution/ effect. An improvement in the security and authentication method of a computer system using an algorithm or a computer program qualifies as a technical contribution and technical effect for the purpose of patentability.[24]  The technical effect was said to be achieved when an efficient link is created between the input and processing unit to provide efficient and faster computation and output.[25] The computer method for compressing digital media data applied on a hardware component (i.e. processor) for the reduction of storage requirements is a technical effect.[26] The method that reduces memory requirements in web pages by creating a single command surface for similar objects in unrelated applications achieves a technical effect.[27] Technical contribution or technical effect is demonstrated by the practical application of the computer program or tangible interaction of an algorithm or computer program with the hardware components in a particular invention.[28]

III. Conclusion

In this blog, the position regarding how Indian courts have evolved the test of “technical effect” also known as technical contribution or technical solution for determining the patentability u/s3 (k) is analysed. As the actual determination of the presence or absence of technical effect is a factual determination, and to ensure uniformity, each case needs to be analysed by analogy with already determined cases as to what amounts to technical effect. There may be cases that pose novel situations before adjudicating bodies where analogy may not be effective. In such cases, the spirit of the provision must be adhered to. The next question that normally arises from this discussion is, will this test of technical effect be applicable to the remaining three categories u/s3 (k) as they are not qualified by word per se. This question will be analysed in the next blog of this series.

[1] Office of the Controller General of Patents, Designs and  Trade marks, “Public Notice: Invitation for Comments on Draft CRI Guidelines 2025”, (25 March 2025) available at: https://ipindia.gov.in/newsdetail.htm?1067.

[2] The Patent Amendment Act, 2002 (Act 38 of 2002), s. 4.

[3] The Patents (Second Amendment) Bill, 1999 (Bill XLIX of 1999), s. 4.

[4] Rajya Sabha Secretariat, “Report Of The Joint Committee On The Patents (Second Amendment) Bill, 1999”, cl. 4, (December, 2001), available at:https://elibrary.sansad.in/server/api/core/bitstreams/a5426574-261b-4ba8-94ed-771882ba1bcd/view.

[5] Office of the Controller General of Patents, Designs and  Trade marks, “Guidelines for Examination of Computer Related Inventions (CRIs), 2017”, available at: https://www.ipindia.gov.in/writereaddata/Portal/Images/pdf/Revised__Guidelines_for_Examination_of_Computer-related_Inventions_CRI__.pdf.

[6] Office of the Controller General of Patents, Designs and  Trade marks, “[Draft] Guidelines for Examination of Computer Related Inventions (CRIs), 2025”, available at: https://ipindia.gov.in/writereaddata/Portal/Images/pdf/Draft_CRI_Guidelines_Publication_March2025.pdf.

[7] The Patent Act, 1970 (Act of 197), s. 3(k).

[8] Telefonaktiebolaget LM Ericsson (PUBL) v. Intex Technologies (India) Limited, 2015 SCC OnLine Del 8229, para. 120.

[9] Ferid Allani v. Union of India and Ors., 2019 SCC OnLine Del 11867 , paras. 14-16.

[10] Office of the Controller General of Patents, Designs and  Trade marks, “Guidelines for Examination of Computer Related Inventions (CRIs),”, (19 February, 2016). available at: https://ipindia.gov.in/writereaddata/Portal/IPOGuidelinesManuals/1_83_1_Guidelines-for-Examination-of-CRIs-19-2-2016.pdf

[11] Microsoft Technology Licensing LLC v. Assistant Controller of Patents and Designs, 2023 SCC OnLine Del 3370, para. 6.

[12] Rajya Sabha Secretariat, “161^st Report on Review of the Intellectual Property Rights Regime in India”, para. 8.7, available at: https://files.lbr.cloud/public/2021-07/161_2021_7_15.pdf?VersionId=S01fCQEC5DzDqKNymsGgxal6YXmJbUwM.

[13] Raytheon Company v. Controller General of Patents and Designs, 2023 SCC OnLine Del 5770, para. 21.

[14] Id., para. 47.

[15] Caleb Suresh Motupalli v. Controller of Patents, 2025:MHC:293, para. 34.

[16] Empire Jute Co. Ltd. v. C.I.T., (1980) 4 SCC 25, para.12.

[17] Case T 1173/97, International Business Machines Corporation, ECLI:EP:BA:1998:T117397.19980701, para. 6.2 & 6.4.

[18] Case T 1370/11, Microsoft Technology Licensing, LLC, ECLI:EP:BA:2016:T137011.20160311.

[19] Case T 1194/97 , Koninklijke Philips Electronics N.V., ECLI:EP:BA:2000:T119497.20000315, para. 3.3.

[20] Blackberry Ltd. v. Controller, Patents and Designs, 2024 SCC OnLine Del 6027, para. 36.

[21] Id., para. 59.

[22] Ferid Allani v. Union of India and Ors., 2019 SCC OnLine Del 11867.

[23] Microsoft Technology Licensing, LLC v. Assistant Controller of Patents and Designs, 2023 SCC OnLine Del 2772, para. 37.

[24] Microsoft Technology Licensing, LLC v. Assistant Controller of Patents and Designs, 2023 SCC OnLine Del 2772, paras. 48&49.

[25] AB Initio Technology LLC v. Assistant Controller of Patents and Designs, 2024 SCC OnLine Del 5185, para. 38.

[26] Microsoft Technology Licensing, LLC  v. Assistant Controller of Patents and Designs, 2024 SCC OnLine Del 3239, para. 35.

[27] Microsoft Technology Licensing LLC, One Microsoft Way v. Assistant Controller of Patents, Patent Office, 2024 SCC OnLine Mad 2785, para. 35.

[28] Koninklijke Philips N.V. v. MAJ (RETD) Sukesh Behl and Anr., 2025 SCC OnLine Del 1121, para. 139.

Authored by: Mr. Viraj Thakur

Pursuing LLB ’25, Faculty of Law, University of Delhi | IN Patent Agent |

For reading CRI BLOG SERIES PART 2 –