Introduction

The exponential growth of digital technologies has brought the protection of software and algorithms to the center stage of legal debates around the world. As software becomes integral to innovation in nearly every sector, questions concerning the eligibility, scope, and effectiveness of patent protection for software and algorithms have emerged as critical issues in intellectual property (IP) law. This article explores how different jurisdictions approach the patenting of software and algorithms, the practical requirements for patent eligibility, the broader policy debates, and the trends shaping the future of software patents.

What Makes Software and Algorithms Patentable?

Fundamental Patent Criteria

A patentable invention must generally satisfy three main requirements:

• Novelty: The invention must be new.
• Inventive Step (Non-obviousness): It must not be obvious to someone skilled in the field.
• Industrial Applicability: The invention should be capable of industrial use.

Algorithms—which are essentially sets of instructions or mathematical methods—have traditionally been considered abstract ideas, and such abstract concepts are not patentable on their own. However, if a software invention or algorithm is tied to a specific, novel technical solution or produces a tangible technical effect, many jurisdictions allow for patent protection^[1][2][3][4].

Global Approaches to Software and Algorithm Patents

United States

• The S. Supreme Court in Alice Corp. v. CLS Bank Int’l (2014) ruled that abstract ideas, including algorithms, cannot be patented unless they are transformed into a patent-eligible application by an “inventive concept.”
• Modern U.S. practice centers on whether the software provides a “technical solution to a technical problem”^[3][4].

Europe

• Article 52 of the European Patent Convention (EPC) excludes “programs for computers as such” from patentability unless the software produces a further technical effect—such as improving hardware performance or a technical process.
• The European Patent Office (EPO) has granted many patents for computer-implemented inventions that provide tangible technical contributions^[1][5][2].

India

• Section 3(k) of The Patents Act, 1970 excludes mathematical methods, business methods, computer programs ‘per se’, and algorithms from patentability.
• Software can be patented if it demonstrates technical innovation (e.g., is tied to novel hardware or achieves a technical effect beyond mere automation of manual processes)^[6][7][8].
• The law aims to balance protection against overbroad monopolies and stifling foundational innovation.

Japan and China

• These nations generally allow software patents where a concrete technical effect is demonstrated.

International Framework (TRIPS Agreement)

• The TRIPS Agreement mandates protection for inventions in all fields of technology, including software, if they meet the patent criteria.
• However, it also recognizes computer programs as literary works, eligible for copyright; thus, international practice is not harmonized and varies by country^[2][9].

Policy Debates and Practical Challenges

Abstract Ideas and Technical Effect

• Abstractness: Algorithms as pure mathematical constructs or business methods are not patentable. To overcome this, an inventor must show the software achieves a tangible technical effect—such as controlling machinery, processing data in a unique way, or solving a technical problem^[10][4][11].
• Documentation: Applications must clearly document the algorithm’s technical solution and inventive step.

Costs, Complexity, and Enforcement

• The process of securing and enforcing software patents is time-consuming, costly, and involves careful drafting to withstand scrutiny against the “abstract idea” doctrine.
• Differences in national laws and practice often require separate filings in each jurisdiction^[10][11].

Innovation and Competition

• Critics argue that broad software patents stifle innovation, enabling “patent trolls” and deterring small developers.
• Proponents contend patents incentivize investment in groundbreaking software by protecting R&D^[2].

Trends: Software and Algorithm Patenting

Global issuance of software-related patents has increased significantly in the past decade, especially in AI, machine learning, and blockchain fields.

AI and Machine Learning Patent Growth

• AI-related patent filings surged from roughly 6,000 in 2016 to over 16,000 in 2024, highlighting growing innovation and the centrality of algorithmic technologies^[12].

[image:1]

Line graph: Annual global AI/algorithm-related patent filings (2015–2025), showing steady growth and recent acceleration in the past five years.

Patent Filings by Country: Indian Example

Indian patent filings—while not specific to software—provide insight into large-scale growth and legislative adaptation to technology advancements^[13].

Major Patent Holders

Global software patent filings are led by companies including Qualcomm, Microsoft, Apple, Google, Samsung, and Huawei, all investing heavily in algorithmic and software innovation^[13].

Graph: Software Patent Filings by Major Technology

[image:2]

Bar chart showing software patent filings by technology type (AI, Data Processing, IoT, Blockchain) for 2024–2025, indicating the overwhelming dominance of AI and data-centric patents.

Protecting Software: Patent vs. Copyright

• Copyright covers the specific source code, user interface, and expressions, but not the underlying algorithm or concept.
• Patent grants exclusive rights over the innovative algorithm or process itself, barring others from imitation, regardless of code implementation^[14][15][4].
• Many inventors seek both types of protection, but patents are harder to obtain and enforce for software than copyrights.

Case Example: Google’s PageRank Algorithm

Google’s breakthrough PageRank algorithm, granted a U.S. patent, was not merely a mathematical formula; rather, it was a novel, practical process for web search ranking, demonstrating a concrete technical application and inventive step^[3].

Prospects: Future of Software Patents

• Expansion: Patent filings for software are likely to increase, especially in AI, quantum computing, and next-generation networks.
• Legal Uncertainty: The evolution of law, especially around AI-generated inventions and the technical effect test, will continue to shape what is patentable^[16].
• Decentralized Systems: Technologies like blockchain are challenging patent system enforcement and raising new questions of ownership and jurisdiction^[16].

Conclusion

Patent protection for software and algorithms is a complex, evolving field that sits at the intersection of law, technology, and policy. By incentivizing innovation while guarding against monopolization of abstract ideas, leading jurisdictions have tailored their approaches to balance these competing interests. As technology continues to reshape the global economy, strong—but carefully calibrated—IP regimes will remain essential for advancing software innovation and economic growth.