Economic, Commercial and Intellectual Property Laws · Law relating to Patents

Patent Infringement, Remedies and Appeals under the Patents Act

Updated 11 October 2026 · Fact-checked

Patent infringement is a violation of the patentee's exclusive rights. The patentee files a suit in a district court or, if the defendant counter-claims for revocation, the High Court hears it. The court can grant an injunction, plus damages or an account of profits. Appeals against Controller decisions lie to the High Court under section 117A.

Understand Infringement, Remedies and Appeals

A patent gives the patentee exclusive rights over the invention. If someone uses those rights without permission, that is infringement. The remedy is a civil suit. This topic asks four questions: where do you sue, what can the defendant argue, what relief can the court give, and where do you appeal.

Jurisdiction (section 104): No infringement suit can be filed in a court lower than a district court having jurisdiction to try it. If the defendant makes a counter-claim for revocation of the patent, the suit along with the counter-claim is transferred to the High Court for decision.

Defences (section 107): Every ground on which a patent may be revoked under section 64 is available as a defence. In suits about making, using or importing a machine, apparatus or article, using a process, or importing, using or distributing a medicine or drug, it is also a defence that the act is in accordance with the conditions in section 47. Separately, section 49 says patent rights are not infringed by use of the invention on a foreign vessel, aircraft or land vehicle that is in India only temporarily or accidentally, within the limits given in that section.

Reliefs (section 108): The court may grant an injunction, subject to such terms as it thinks fit. At the plaintiff's option, it grants either damages or an account of profits. The court may also order infringing goods, and materials and implements mainly used to make them, to be seized, forfeited or destroyed, without any compensation.

Related protections: Section 104A deals with burden of proof in process patents. Section 106 protects a person from groundless threats of infringement proceedings. Section 109 lets an exclusive licensee sue. Section 113 deals with certificates of validity and costs. Section 151 requires courts to send orders to the Controller. Appeals against the Controller's decisions are governed by section 117A.

Key rules to remember

Court for infringement suit (s.104): Not lower than a District Court; with a revocation counter-claim, the suit goes to the High Court; The counter-claim and the suit are decided together by the High Court.
Reliefs (s.108): Injunction + (damages OR account of profits) + seizure, forfeiture or destruction of infringing goods; Damages and account of profits are alternatives at the plaintiff's option. Seizure or destruction is without compensation.
Defences (s.107): Any s.64 revocation ground + s.47 conditions (for the listed acts); Section 47 conditions apply to making, using or importing machines, apparatus or articles, using processes, and importing, using or distributing medicines or drugs.
Burden of proof in process patents (s.104A): Patentee first proves the product is identical to the product directly obtained by the patented process; then the court may direct the defendant to prove a different process; Applies if the patent is for a process for a new product, or there is a substantial likelihood of the identical product being made by the process and the patentee could not find the process used despite reasonable efforts. The court will not require disclosure of trade secrets if that would be unreasonable.
Groundless threats (s.106): Declaration that threats are unjustifiable + injunction + damages; A mere notification of the existence of a patent is not a threat.
Exclusive licensee (s.109): Exclusive licensee may sue for infringement after the date of the licence; the patentee is added as defendant unless joined as plaintiff; A patentee added as defendant bears no costs unless he enters appearance and takes part.
Appeal against Controller (s.117A): Within 3 months from the date of the decision, order or direction, or such further time as allowed; Appeal lies only against decisions under the listed sections. The appeal is to the forum substituted for the Appellate Board (the High Court) following the 2021 amendment.

How to solve Infringement, Remedies and Appeals questions

Use this method for any problem or theory question on patent infringement and remedies.

1Identify the stage: is it a suit, a threat, a defence, or an appeal against the Controller?
2State the forum: district court under section 104, or the High Court if there is a counter-claim for revocation.
3Check whether the act is infringement. Look for defences: section 64 revocation grounds, section 47 conditions, or section 49 foreign vessel use.
4For process patents, check section 104A: who bears the burden and what the patentee must prove first.
5List the reliefs under section 108: injunction, damages or account of profits, and seizure or destruction.
6Check special parties or situations: exclusive licensee (section 109), groundless threats (section 106), certificate of validity (section 113).
7For appeals, check the section is listed in section 117A(2) and the three-month limit.
8Write a clear conclusion that answers the question asked.

Quickest way: Forum, defence, relief, appeal

When to use it: Use when time is short or the question asks you to list remedies or advise a party.

Forum: district court; High Court if revocation counter-claim.
Defence: s.64 grounds, s.47 conditions, s.49 foreign vessels.
Relief: injunction, then damages or account of profits, then seizure or destruction.
Appeal: Controller decision, three months, section 117A.
Add the section number beside each point.

Common mistakes in Infringement, Remedies and Appeals

Saying a patentee can claim both damages and an account of profits.
Students treat all reliefs in section 108 as cumulative.
Fix: Remember that the plaintiff chooses either damages or an account of profits. The injunction can be granted along with either.
Saying the suit is always filed in the High Court.
Students confuse the transfer rule with the original forum.
Fix: The suit starts in a district court. Only a counter-claim for revocation moves the suit and counter-claim to the High Court.
Treating any letter mentioning the patent as a groundless threat.
Students overlook the Explanation to section 106.
Fix: A mere notification of the existence of a patent is not a threat. A threat means a threat of infringement proceedings.
Saying the court must pay compensation for destroyed infringing goods.
Students assume property seizure needs compensation.
Fix: Section 108(2) allows seizure, forfeiture or destruction without payment of any compensation.
Claiming an appeal lies against every order of the Controller or the Central Government.
Students ignore the list in section 117A(2).
Fix: Appeal lies only against decisions under the sections listed in section 117A(2). Also note the three-month time limit.
Forgetting that the patentee must first prove identity of product under section 104A.
Students read only the court's power to direct the defendant.
Fix: State the proviso: the patentee first proves the product is identical to the product directly obtained by the patented process.

Worked examples

Example 1

Alpha Pharma Ltd holds a patent for a process of making a new drug. Beta Labs sells an identical drug. Alpha sues Beta in the district court. Beta counter-claims for revocation of the patent. Advise on the forum and on who must prove what.

Show the solution

Provision: section 104 bars suits in any court lower than a district court. Its proviso says that if the defendant makes a counter-claim for revocation, the suit with the counter-claim is transferred to the High Court.
Facts: Beta has made a revocation counter-claim, so the proviso applies.
Burden: under section 104A, the patent is for a process for a new product, so the court may direct Beta to prove its process is different. But Alpha must first prove that the drug is identical to the product directly obtained by the patented process.
Trade secrets: the court will not require Beta to disclose manufacturing or commercial secrets if that would be unreasonable.

Answer: The suit and counter-claim go to the High Court. Alpha must first prove product identity; the court may then direct Beta to prove its process differs, without forcing disclosure of trade secrets that it would be unreasonable to reveal.

Example 2

Rohan's patent is infringed by Sunrise Industries. Rohan wants to know what reliefs the court can grant and whether the infringing stock can be taken away.

Show the solution

Provision: section 108(1) lets the court grant an injunction, subject to terms it thinks fit, and at the plaintiff's option either damages or an account of profits.
Rohan must choose between damages and an account of profits; he cannot take both.
Section 108(2): the court may order infringing goods, and materials and implements mainly used to create them, to be seized, forfeited or destroyed as it deems fit.
This is without payment of any compensation.

Answer: Rohan can obtain an injunction and either damages or an account of profits, as he chooses. The court may also order seizure, forfeiture or destruction of the infringing goods and the materials and implements mainly used to make them, without compensation to Sunrise.

Exam tips

Write the section number with every point: 104, 104A, 106, 107, 108, 109, 113, 117A.
For a case-study question, use the order: provision, facts, conclusion.
Learn the difference between a defence (section 107) and a groundless threats action (section 106).
In appeal questions, mention the three-month limit and that the right of appeal exists only for the sections listed.
If asked about the appellate forum, note that the Appellate Board references were replaced by the High Court after the 2021 amendment.

Practice questions from Law relating to Patents

Infringement, Remedies and Appeals in other exams

The same ground in other exams, if you are preparing for more than one or want another angle on it.

CS ProfessionalInfringement, Remedies and Offences

Infringement, Remedies and Appeals: frequently asked questions

Which court hears a patent infringement suit in India?

Under section 104, a court not lower than a district court having jurisdiction. If the defendant counter-claims for revocation of the patent, the suit and counter-claim are transferred to the High Court.

What defences can a defendant take in a patent infringement suit?

Every ground of revocation under section 64 is available as a defence. For making, using or importing articles, using processes, or importing, using or distributing medicines or drugs, compliance with section 47 conditions is also a defence.

Can a patentee get both damages and an account of profits?

No. Section 108(1) gives the plaintiff the option of either damages or an account of profits. An injunction can be granted in addition.

What is a groundless threat of infringement proceedings?

Under section 106, a person aggrieved by threats of infringement proceedings can sue for a declaration that the threats are unjustifiable, an injunction and damages. The court may grant relief unless the defendant proves that the acts are or would be infringement. Merely notifying the existence of a patent is not a threat.

What is the time limit for appeal against a Controller's decision?

Section 117A(4) requires an appeal within three months from the date of the decision, order or direction, or within such further time as the appellate forum allows.