Software is one of the most misunderstood areas of patent law most founders assume their code is automatically patent-protected, when in practice, “software as such” is excluded from patentability in India, and abstract algorithms face heavy scrutiny in the US too. AI adds a newer complication on top: can an AI system even be listed as an inventor? Regulators have already answered that one, and the answer is no.
This post covers what’s actually patentable in software and AI, where the two systems diverge, where innovation is concentrated, and how PATHtoIP fits into the process.
What Makes a Software or AI Invention Patentable
The Three Basic Tests
Novelty, inventive step, and industrial applicability apply but software claims face an additional threshold question first: is this a genuine technical invention, or just an abstract idea implemented in code?
What Typically Gets Filed
- Technical improvements to system performance faster processing, reduced memory usage, improved data compression
- Novel hardware-software interactions where software controls or improves a physical process
- Machine learning methods tied to a specific technical application, not just a general algorithm
- User interface innovations with a demonstrable technical effect, not merely aesthetic changes
Search and Freedom to Operate
Patentability Search
Software patent search needs to look beyond patent databases into open-source repositories and technical publications, where a lot of prior art in this space actually lives.
Freedom to Operate
Especially important when building on open-source components or third-party APIs, since licensing terms can restrict commercial use even where no patent is directly infringed.
India vs. the US: A Quick Comparison
| India | United States | |
| Governing law | Patents Act, 1970 | 35 U.S.C. (Patent Act) |
| Software patentability | Excluded under Section 3(k) as “computer programme per se,” unless tied to a technical effect or novel hardware | Assessed under the Alice Corp. v. CLS Bank (2014) two-step test for abstract ideas |
| AI as an inventor | Rejected Indian law requires a natural person as inventor | Also rejected the USPTO and courts have held AI systems cannot be named as inventors (the DABUS case) |
| Protection route for code itself | Copyright, automatically on creation | Copyright, automatically on creation |
Section 3(k) is the central hurdle in India, it explicitly excludes computer programs “per se,” meaning a claim needs to demonstrate a genuine technical effect (like improved hardware efficiency) rather than just automating a known process. The US applies a similar filter through Alice, asking whether a software claim is directed to an abstract idea and, if so, whether it adds “significantly more” than routine implementation. On AI inventorship, both systems have landed in the same place: the DABUS case, where an inventor tried to name an AI system as the sole inventor, was rejected by patent offices and courts in multiple jurisdictions, including India and the US, on the basis that only a natural person can be an inventor.
Where Innovation Is Actually Happening
Large Language Models and Generative AI
A rapidly expanding filing category, though many core techniques remain difficult to patent due to their abstract, algorithmic nature.
Edge AI and On-device Processing
Running AI models efficiently on limited hardware a technical-effect angle that tends to clear patentability hurdles more easily than pure algorithmic claims.
AI-assisted Software Development Tools
Code generation and review tools, an increasingly crowded and fast-moving space.
Cybersecurity and Threat Detection
Software methods with a clear technical effect, often easier to patent than general-purpose AI claims.
Protecting the Product from Every Angle
Copyright
Protects the source code itself, automatically, from the moment it’s written, no registration required, though registration can help with enforcement.
Patents
Reserved for genuine technical improvements, a novel data compression method or an efficiency gain in how a system processes information, not the general concept of applying AI to a known problem.
Trade Secrets
Proprietary algorithms, training data curation methods, and model architectures are frequently kept as trade secrets rather than disclosed through a patent, especially when the algorithm’s inner workings aren’t visible from the product’s output.
Trademarks
Brand and product naming increasingly contested as AI product names proliferate across a crowded market.
How PATHtoIP Helps
- Patentability searches across patent databases, open-source repositories, and technical literature
- Freedom to Operate analysis for products built on open-source components or licensed APIs
- Patent drafting and filing framed around genuine technical effect to clear Section 3(k) scrutiny in India and Alice scrutiny in the US
- Trademark filing for software products and platforms
- Technology landscape analysis to identify genuinely open ground in fast-moving AI subfields
Frequently Asked Questions
Can I patent my software or app in India?
Only if it does more than automate a known process the claim needs to demonstrate a genuine technical effect, such as improved hardware performance, rather than being “a computer programme per se,” which Section 3(k) excludes.
Can an AI system be listed as the inventor on a patent?
No. Both Indian and US patent law require a natural person as the inventor — the DABUS case tested this directly, and patent offices in multiple countries rejected AI-only inventorship.
If my software can't be patented, is it still protected?
Yes, the code itself is automatically protected by copyright from the moment it’s written, regardless of whether the underlying method or system also qualifies for a patent.
Building a software product or AI system and not sure what’s actually protectable? PATHtoIP can help you map it out and reach out at info@pathtoip.com.
