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!