On 26 June, the CGPDTM issued a public notice inviting comments on the “Revised Draft CRI Guidelines 2025, Version 2.0.” Earlier, in May 2025, we had submitted our comments on the previous edition of the CRI guidelines. (here) This time around, the CGPDTM had organised in-person stakeholder meetings to discuss the comments received for the first version of these guidelines. Bharathwaj Ramakrishnan, our prolific blogger, had attended one of these meeting in Chennai on our behalf.
To CGPDTM’s credit, organising stakeholder meetings goes a long way in increasing transparency and credibility around the process of framing the guidelines. Software-based patent claims is a crucial area and how it is shaped will decide the future for ICT in India. NLSIU’s recent report- “The Rise of FOSS in India”- shows how free and open source software not only provides improved reliability but allows companies to develop internal technical and engineering capacity. If that is the case, do we need patents for software-based claims at all? If yes, what should be the standard? The recently released guidelines are supposed to achieve this goal.
In our earlier comments, we had submitted that the guidelines lacked a clear format and structure and did not contain illustrative examples. The new guidelines, fortunately, have been restructured in a coherent manner. Further, the guidelines have added numerous illustrative examples under each excluded subject matter to aid the examination process.
However, on substance, the guidelines have nothing new to offer, so much so that calling it ‘version 2.0’ seems a misnomer. (I’d call it version 1.01)
You can find our comments on the guidelines here.
The office has failed to provide the minutes for the stakeholder meetings conducted in Kolkata and Chennai. It does not provide the author(s) of the guidelines as well as suggestions/inputs given by various stakeholders in comments. An example of a more transparent exercise is the Law Commission’s 289th report on TS (here) which listed out all the suggestions provided by each stakeholder.
The office, again, fails to acknowledge the ‘fragmented landscape of sec. 3(k).’ For instance, the approach taken in, let’s say, Priya Randolph and Oneempower, leads to different conclusion on patentability of business methods. The former says that BMs are patentable so long as it demonstrates technical effect whereas the latter says it is unpatentable despite possessing technical character. The fragmentation holds true for other excluded subject matters also.
Further, without acknowledging the fragmentation, the guidelines chooses the approach which dilutes the bar against patentability u/s. 3(k). Despite being not qualified with the phrase ‘per se’, according to guidelines, algorithm and BM are patentable if the invention demonstrates technical effect or enhances functionality of the hardware. The illustrative examples provide ways of circumventing the bar u/s. 3(k).
The guidelines need to answer why it chose this approach? Is it because providing more patents towards such inventions incentivises innovation? if yes, is there any empirical data to ‘demonstrate’ this? Why is the guidelines ignoring the fact that ‘per se’ is not mentioned for other subject matter?
The judiciary as well as the Patent office are responsible for the dilution of section 3(k) over the years. Authors of various blogposts, have time and again, raised the issue that the interpretation is leading to a situation where statutory language and legislative intent are going for a toss. If this is how we intend to move forward, the least that can be done is provide empirical data to show that giving more patents to CRI inventions is indeed leading to increase in innovation. For instance, this report titled ‘The economic impacts of computer-implemented inventions at the European Patent Office’ analysis impact of CRI in different sector and impact on overall economy.
If we can’t expect statute-conforming interpretation, the least we can expect is data-backed analysis of issues. The interpretation, borrowing from the 3(k) puddle, must demonstrate ‘tangible’ benefits in real word which go beyond mere written words!
The office, again, fails to acknowledge the ‘fragmented landscape of sec. 3(k).’ For instance, the approach taken in, let’s say, Priya Randolph and Oneempower, leads to different conclusion on patentability of business methods. — why to blame executives, when judiciary commits a mistake of delivering contrasting judgements.
Judiciary will have to correct it eventually.
Other way out is Act amendment, India should desist from touching section 3 as the same is till date portrayed as a matter which they want to just maintain or don’t go into it.
Remember the technical matters are involved for a decision process, slight change in technicalities, drastic change in decision can be observed. Therefore IMO the current Act is sufficient enough to cover most of the aspects. Even adding illustrative examples have given coherency to the guidelines.
Let judiciary in some case settle the issue. Judiciary sees patent matters as if the applicant whose patent is refused is a victim just like in criminal matters. The lens of judiciary needs cleaning and realignment.
Dear Anon,
The blame lies with IPO too if they choose to pick one judgement over the other without providing reasons as to why it is correct. If the office was transparent on this, we could at least assess whether such reasons are correct or not. For now, it seems everyone is after diluting 3(k) to advance technology. Is this assumption even correct? The office, to the least, owes an answer on why it believes this is correct.
While the guidelines are non-binding on HCs, the examiners will need to rely upon on it while deciding applications.
No one can blame anyone if everyone’s complicit in diluting 3(k). As I see it, the drastic changes you are talking about are already taking place for the last 10 years. That too without basis in statute.
True that, IPO are not satisfying the reasons that literally opens and shifts the landscape or lens of judiciary.
But can guideline answer to the two contrasting case laws you have highlighted?
Anyways it’s debatable….but wish if you can throw some light on how IPO could have come out of the fragmented landscapes of the mentioned case law in guidelines.
Dear Anon,
Glad to reply to you on this. When I criticise the IPO, I am aware that it has a limited role in creating/building jurisprudence on 3(k). But in that limited role, it has a huge role to play. The guidelines, while bound by HCs judgements, could at least show their helplessness- should they dilute 3(k)or broadly interpret. By merely putting a statement out that HCs are unsure and providing contradictory conclusions, it could put truth to power. While I am sure this won’t suffice in creating a big change, sometimes acknowledging the problem is a first step towards resolving it. In what manner they could do it?- I think guidelines and controller’s decision are the best way to show that contradiction.