Patents, designs and copyright
Three separate statutes, three separate offices, and for most businesses one question: what else that I own is protectable, and is it worth the cost. This guide covers what India will and will not patent, why a design has to be filed before the product is shown to anyone at all, and the copyright question that breaks more due diligence reviews than any other in Indian practice: who actually owns work done by a contractor.
Patents: what India will not patent
Section 3 of the Patents Act 1970 lists what is not an invention. Two exclusions decide most commercial questions.
Section 3(k) excludes "a mathematical or business method or a computer programme per se or algorithms". Read the drafting carefully: the qualifier "per se" attaches only to the computer programme limb. Business methods are excluded outright, with no softener. Sections 3(m) and 3(n), covering schemes and rules for performing a mental act or playing a game, and the presentation of information, are the adjacent traps that catch interface and dashboard claims.
Section 3(d) excludes the mere discovery of a new form of a known substance that does not enhance known efficacy. It is a pharmaceutical and chemistry provision and is usually padded into general guides where it does not belong.
What changed for software in 2025, and it is significant
The IP Office published Guidelines for Examination of Computer Related Inventions, 2025, and they replace the practical reliance on the older guidelines. The change that matters commercially: the guidelines state that allowability under section 3(k) "does not necessitate presence of Novel Hardware", but rather the presence of a technical solution to a technical problem through technical means. The old novel hardware test is gone. Anything written before 2025 telling an Indian software business that it must claim new hardware is now wrong.
The guidelines set a four step enquiry: construe the substance of the claim as a whole and identify its essential technical features; identify the problem and the solution and whether they are technical; ask whether that technicality produces a technical effect beyond an incidental one; then conclude. Technical effect is illustrated by faster processing, better memory management, improved security, better device control and optimised resource allocation. A claim pitched at a level of abstraction with no technical specifics remains an excluded algorithm, and a claim that solves a business or administrative problem remains an excluded business method however much computing it recites.
The practical translation for a software business. A fintech workflow, a pricing engine or a marketplace matching rule is very unlikely to be patentable in India. A compression scheme, a scheduling algorithm that measurably improves device or network performance, or a security protocol may well be. Either way, copyright in the source code is available and automatic, and the two protect different things. See the copyright section below.
The patent journey, and the deadline that changed
- Provisional to complete: twelve months. Section 9(1) requires the complete specification within twelve months of an application filed with a provisional, failing which the application is deemed abandoned. A provisional is not available for a convention or PCT national phase application.
- Publication: eighteen months from the filing date or the priority date, whichever is earlier. Early publication can be requested on Form 9. On publication the applicant gets the like privileges and rights as if the patent had been granted, but cannot commence infringement proceedings until grant.
- Request for examination: 31 months, not 48. Examination is not automatic. The Patents (Amendment) Rules 2024 substituted thirty one months for forty eight months in Rule 24B(1), on Form 18. The period runs from the date of priority or the date of filing of the application, whichever is earlier; where no priority is claimed there is nothing to compare and it runs from the Indian filing date. There is a transitional saving in the new clause 24B(1)(vi): applications filed before the 2024 rules commenced on 15 March 2024 keep the old 48 month period. Guidance that states either figure flat is wrong for one cohort or the other.
- Putting the application in order for grant: six months from the issue of the first statement of objections, under Rule 24B(5), extendable by three further months on Form 4 under Rule 24B(6), but the extension must be requested before the six months expires. Nine months is the outer limit.
- Form 3, foreign filing particulars. The 2024 rules moved this deadline to three months from the issue of the first statement of objections. It is a real trap for any applicant running a parallel foreign family.
The foreign filing licence, which is the point most often missed
Section 39 provides that no person resident in India may apply for a patent outside India except under a written permit from the Controller, unless an application for the same invention has been made in India not less than six weeks before the foreign application, and no secrecy direction under section 35 is in force. Where the invention relates to defence or atomic energy, the Controller cannot grant a permit without Central Government consent.
So the rule for an Indian business is simple and inflexible: either file in India first and wait six weeks, or obtain a permit on Form 25 before any foreign or PCT filing. Breach has three consequences, not one. It is a criminal offence under section 118. It is a ground for revoking the Indian patent under section 64. And section 40 deems the Indian application abandoned or the patent liable to revocation automatically, which is the one that bites first, because it needs no proceedings and no one has to bring anything.
On the PCT itself: national phase entry into India is 31 months from the priority date under both Chapter I and Chapter II, so India has no 30 or 31 month split. For a national phase application the relevant date is the priority date as defined in section 2(1)(w), the earliest priority claimed in the international application, failing which the international filing date, which is the deemed Indian filing date. And the twenty year term runs from the international filing date, not from national phase entry: a national phase patent granted in year five has around fifteen years of life left, not twenty.
The two 31 month periods now expire on the same day, and this is the single most commercially useful line on this page. National phase entry under Rule 20(4)(i) is 31 months from priority. Since March 2024 the request for examination under Rule 24B(1)(i) is also 31 months from priority. Before the amendment there was a seventeen month cushion between them. There is none now. An applicant entering the national phase on the deadline has no time left in which to file the request for examination, so the request has to go in with national phase entry, or immediately on it.
Treat the request for examination as a deadline that cannot be missed. Miss it and the application is deemed to have been withdrawn under section 11B(4). Whether the six month extension and condonation route in the amended Rule 138 reaches it is unsettled: the 2024 amendment substituted Rule 138 without an exclusion list and moved the list of excluded periods into a new Rule 137(2), which by its terms disapplies Rule 137 rather than Rule 138, and no clarification has been issued. Commentary is split. No applicant should plan on the basis that relief is available.
Patent fees, expedited examination and keeping the patent alive
The First Schedule runs two columns: a concessional column for a natural person, startup, small entity or educational institution, and a higher column for everyone else. The status is claimed on Form 28, and if the application is later transferred to a non-qualifying person the difference becomes payable. E-filing rates:
| Item | Form | Natural person, startup, small entity or educational institution | Everyone else |
|---|---|---|---|
| Application for a patent | Form 1 | ₹1,600 | ₹8,000 |
| Request for examination | Form 18 | ₹4,000 | ₹20,000 |
| Request for examination, PCT national phase | Form 18 | ₹5,600 | ₹28,000 |
| Request for expedited examination | Form 18A | ₹8,000 | ₹60,000 |
| Early publication | Form 9 | ₹2,500 | ₹12,500 |
| Permission to file abroad | Form 25 | ₹1,600 | ₹8,000 |
| Statement of working | Form 27 | No fee | No fee |
The gap between ₹8,000 and ₹60,000 for expedited examination is the sharpest concession in the schedule, and it is the strongest practical reason to formalise startup or small entity status before filing rather than after.
Who can request expedited examination
Rule 24C, on Form 18A. The eligible categories were substantially widened in 2019 and now include startups, small entities, a natural person applicant, or joint applicants all of whom are natural persons, where at least one is female, government departments, statutory and government owned institutions, government companies, substantially government financed institutions, applications in notified sectors, and applicants eligible under an arrangement with a foreign patent office. The female applicant route and the small entity route are the two most useful to an Indian business and are the two most often omitted from published guides. Under Rule 24C the examiner reports within one month, extendable to two, objections issue within fifteen days of that report, and the Controller disposes of the application within three months of the final reply.
Working statements and renewals
Form 27, the statement of working, is no longer annual. The Patents (Amendment) Rules 2024 changed it to once in respect of every period of three financial years, starting from the financial year after the one in which the patent was granted, filed within six months of the end of each such period. The Controller may extend by up to three months on Form 4. There is no fee. Any compliance calendar still showing an annual Form 27 is out of date.
Renewal fees start from the third year, and rise in bands: ₹800 a year for years three to six, ₹2,400 for seven to ten, ₹4,800 for eleven to fifteen and ₹8,000 for sixteen to twenty on the concessional column, and five times those figures otherwise. Under section 53(2) a patent ceases to have effect if the renewal fee is not paid within the prescribed period, and section 53(4) puts the subject matter into the public domain.
A lapsed patent can be restored, but the window is fixed and short: an application on Form 15 within eighteen months of the date the patent ceased to have effect, supported by a verified statement setting out the circumstances of the failure. The Controller restores only if satisfied that the failure was unintentional and that there has been no undue delay, and the application is published so any interested person may oppose it on those two grounds. Restoration is then conditional on paying the unpaid renewal fees plus an additional fee.
Designs: the right that dies the moment you show the product
Section 2(d) of the Designs Act 2000 protects only features of shape, configuration, pattern, ornament or composition of lines or colours applied to an article, which in the finished article "appeal to and are judged solely by the eye". It expressly excludes any mode or principle of construction and anything that is in substance a mere mechanical device. That carve-out is the dividing line from patents: a patent protects how a thing works, a design protects only how it looks. A feature dictated by function is not registrable as a design.
Term
Ten years from registration under section 11(1), extendable by one further period of five years on Form 3, applied for before the ten years expires. There is no post expiry extension; the only route back is restoration under section 12 within one year of lapse. Note section 5(6): a design is registered as of the date of the application, so the ten years runs from filing, not from the certificate.
The novelty trap, stated precisely, because it is routinely stated wrongly. Section 4 bars registration of a design that "has been disclosed to the public anywhere in India or in any other country by publication in tangible form or by use or in any other way prior to the filing date". India has no general grace period for designs. Putting the product on your website, showing it to distributors without a confidentiality obligation, listing it on a marketplace, or launching it at a trade fair before filing will normally destroy the design right, and is a ground for cancellation later.
The only relief is section 21, and it is narrow and notice dependent: exhibiting at an industrial or other exhibition to which the section has been applied does not bar registration, provided prior notice is given to the Controller on Form 9 and the application is filed within six months of first exhibition. That is not a general six month grace period, though it is very commonly described as one.
The operating rule: file the design before the product is shown to anyone outside a confidentiality obligation.
Classification is by the Locarno Classification, mandated by Rule 10(1) as amended in 2021, with 32 classes of goods and sub-classes. The IP Office notes that classification is administrative and does not affect the scope of protection. Fees on the concessional column are ₹1,000 to file on Form 1 and ₹2,000 to extend on Form 3, against ₹4,000 and ₹8,000 for everyone else; concessional status is claimed on Form 24.
Screen designs and graphical user interfaces
A graphical user interface can be registered as a design in India. That was doubted for years, and it was settled in March 2026 by the Calcutta High Court in NEC Corporation v. The Controller of Patents and Designs. The Court held there is no per se exclusion of a graphical user interface under section 2(d), and that a screen design is registrable case by case where it satisfies sections 2(a) and 2(d), that is, where it is associated with an article and is not purely function driven. It rejected the argument that a design must be permanently visible, holding that visibility during normal operation is enough, so an interface that appears only when the device is switched on does not fail on that ground.
Two things that decision did not do, both of which are routinely overstated. It did not order registration: it set the refusals aside and remanded them to the Controller for fresh hearing, and it noted the absence of clear Registry guidance on the point. And it did not make the classification decisive. Locarno class 14-04 is where such an application is filed. Classification is administrative and cannot create, grant or exclude design protection. So the accurate statement is that screen designs are registrable where the statutory tests are met, and that Registry practice is still settling, not that they are registered as a matter of course.
Proposed, not in force. DPIIT published a concept note in January 2026 proposing protection for graphical user interfaces and virtual designs, a twelve month grace period, deferred publication, a five plus five plus five year term, and accession to the Hague Agreement. It is a consultation. No Bill has been introduced. Nothing in it is law. The current position remains ten years extendable by five under section 11, with no general grace period, as set out above.
It is worth knowing about because it would put the screen design position beyond doubt and would change both the term and the grace period. Anyone weighing the timing of a design filing should take advice on where this stands at the time.
Copyright: automatic, and the thing you probably do not own
Copyright subsists automatically in original literary, dramatic, musical and artistic works, cinematograph films and sound recordings, under section 13(1) of the Copyright Act 1957. There is no registration requirement and no notice requirement. It protects the expression of an idea, not the idea.
What registration actually buys, and it is less than people think
Registration is voluntary and its effect is evidential. Section 48 makes the Register prima facie evidence of the particulars entered, and lets certified extracts be admitted without further proof or production of the original. It does not create the copyright, does not conclusively establish ownership, and is rebuttable. Its real value is procedural: it shifts the practical burden in a dispute, saves proving chain of title from scratch, and is a useful anchor for takedowns, customs recordal and investor diligence. For software, the deposit at registration also fixes a dated record of what the code was.
Applications use Form XIV, one per work, with a mandatory waiting period: under Rule 70 of the Copyright Rules 2013 the Registrar enters the particulars only if no objection is received within thirty days. The Office's own guidance puts normal turnaround at two to three months, so thirty days is a floor and not an expectation. Fees are ₹500 for a literary, dramatic, musical or artistic work, but ₹2,000 for an artistic work used or capable of being used in relation to goods or services, which is the rate that applies to a logo. Software registers as a literary work at ₹500.
Terms
Every term runs from the beginning of the calendar year following the triggering event, so in practice terms expire on 31 December.
| Work | Term |
|---|---|
| Literary, dramatic, musical and artistic works published in the author's lifetime | Life of the author plus sixty years (section 22). For joint authorship, measured from the last surviving co-author. |
| Photographs | Life plus sixty, as artistic works. Section 25, which used to give photographs sixty years from publication, was omitted in 2012. Any guide still quoting it is quoting a repealed section. |
| Anonymous and pseudonymous works | Sixty years from the beginning of the year following first publication (section 23). |
| Cinematograph films | Sixty years from the year following publication (section 26). |
| Sound recordings | Sixty years from the year following publication (section 27). |
Software
Section 2(o) includes computer programmes, tables and compilations including databases within "literary work". Source and object code are therefore protected automatically on creation, for life plus sixty years, with the additional right under section 14(b) to sell or commercially rent copies.
The relationship with the patent exclusion is worth stating plainly, because the two are often presented as alternatives. They protect different things. Copyright protects the particular expression, the code as written. It gives no monopoly over the underlying idea or functionality, so an independently written competing program that does the same job does not infringe. A patent would give that functional monopoly, but section 3(k) puts it out of reach for most business software. For the ordinary software product the realistic package is copyright in the code, contractual protection through licence terms and confidentiality, trade secrecy in what is not published, and a trademark on the product name.
The one that breaks due diligence: employees versus contractors
Section 17 begins with the default: the author of a work is the first owner of the copyright in it. Two provisos change that, and the boundary between them is where the money is.
- Proviso (c): a work made in the course of the author's employment under a contract of service belongs to the employer, absent agreement to the contrary.
- Proviso (b): a photograph, painting, portrait, engraving or cinematograph film made for valuable consideration at another person's instance belongs to that person, absent agreement to the contrary. That is a closed list.
Read those together and the consequence for an Indian business is stark:
- Code, copy, documentation, logos and drawings created by your employees in the course of employment vest in the company by default.
- The same work commissioned from a freelancer, an agency or an outsourced development firm vests in the contractor, not in the company that paid for it. Proviso (c) covers a contract of service, not a contract for services, and proviso (b)'s list does not include software, logos as such, or ordinary literary work. Paying the invoice transfers nothing. At best the company has an implied licence to use the deliverable for the purpose it was commissioned for. It does not own it, cannot stop the contractor reusing it, and cannot cleanly assign it to an acquirer.
The cure, and it has a form requirement. Section 19(1): "No assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorised agent." Section 19 also requires the assignment to identify the work and to specify the rights assigned, the duration, the territorial extent and the consideration. An oral agreement, an email saying "you own it", or a purchase order is not a valid assignment.
Practically: every contractor engagement, including logo and website design, needs a signed written assignment. It is also prudent to put a confirmatory assignment in employment contracts, because the boundary of "in the course of employment" is contestable for work done outside the job description or on personal time. This is the issue that turns up at Series A, when a company discovers that its website, its logo and part of its codebase belong to three people who stopped working with it years ago.
What changed recently, and one thing that is only proposed
- Guidelines for Examination of Computer Related Inventions, 2025. Discussed above. The most consequential change on this page.
- Guidelines for the Use of Artificial Intelligence in Patent Examination, published 7 August 2026. These bind examiners and controllers rather than applicants: AI may assist with screening, classification, search, translation and technical comparison, human review is mandatory, and the examiner remains fully responsible for every official act. Nothing changes for applicants. We mention it because clients ask.
- The Copyright Office web presence has moved. As at 15 August 2026, copyright.gov.in redirects to the IP India site, and the Act, Rules and fee content is served from there. The e-filing application itself still sits at the old address. Any older document linking to copyright.gov.in content pages now has broken links.
- Mandatory electronic know your customer verification at the IP Office, with a deadline of 31 August 2026. It binds enrolled patent and trade mark agents and attorneys rather than applicants generally, and the notices state no penalty for missing it.
- The Patents (Amendment) Rules 2025, notified in November 2025 and in force. They rebuild the chapter on adjudication of penalties and appeals: a complaint form, a show cause procedure with at least seven days' notice, orders ordinarily within three months, and an appeal within sixty days. Nothing about filing, examination, fees or working statements changes, so no figure on this page moves. Worth knowing that the IP Office's own rules page does not list them, so their absence from that page is not evidence they do not exist.
- Screen designs are registrable. The Calcutta High Court held in March 2026, in NEC Corporation v. The Controller of Patents and Designs, that there is no per se exclusion of a graphical user interface under the Designs Act. Set out in the designs part above. Registry practice is still settling.
- The DPIIT designs concept note of January 2026, set out in the designs part above, is a consultation and not law.
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This page is general information, not professional advice. Indian patent, design and copyright procedure changed materially in 2024, 2025 and 2026, and how any of it applies depends on your own facts. Take professional advice before acting on anything on this page. We are happy to be that adviser, but we do not act on a web page, ours or anyone else's, without one.