For Free and Open-Source Software development, the regulation of software patents is not merely an abstract, legal question of patentability. How patents for software are granted present a real and direct constraint on how software can be written, shared, modified, and deployed.
In India, Section 3(k) of the Patents Act was intended to safeguard this space by excluding “computer programmes per se” from patentability. However, over time, administrative actions like the various CRI Guidelines released by the Patent Office, and many judicial decisions, have steadily chipped away at this exclusion by borrowing from foreign jurisprudence, showing a clear deviation from the legislative intent to protect domestic innovators against “a monopoly of multinationals”. In fact, as we have found, a large portion of these sofware patents (~80% in 2023) were being granted to foreign entities and Big Tech firms!
This talk will examine the current state of software patents in India through the lens of FOSS, with particular focus on the 2025 Computer-Related Inventions (CRI) Guidelines. Drawing from SFLC.in’s work on software patents over the past decade, the session will look at whether recent developments are effectively expanding the meaning of patentable software through non-uniform and inconsistent legal tests such as “technical effect” and “technical contribution,” and what the impact of these tests are on the community-driven FOSS development and collaborative innovation ecosystem in the country. The session will also highlight the role of the FOSS Community in successfully campaigning against software patent deregulation in the past, and the importance of projects like the endsoftwarepatents project.
The talk will conclude by opening the floor to the community and inviting developers and other valued members to share experiences, emerging concerns (including around AI/ML), opinions on patenting practices, strategies to understand an increasingly ambiguous patent landscape, so as to establish deeper connections for potential collaborations, and to coordinate on community-led responses to state action.
What we will talk about:
The history of software patent law in the country and the intent of the Parliament
How the administrative and judicial decisions deviate from this intent
How this deviation causes harm to domestic software development, and especially collaborative innovation such as in the FOSS community
What SFLC.in has done on this in the past; What we are doing now
Avenues for coordination and collaboration with the FOSS Community
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