Intellectual Property Rights - Law and Practice · Patent Documentation, Examination and Infringement

Patent Infringement and Remedies under the Patents Act, 1970

Updated 11 October 2026 · Fact-checked

Patent infringement is the unauthorised use of a patented invention that violates the patentee's exclusive rights. The suit lies in a district court or High Court (Section 104). The court may grant an injunction and, at the plaintiff's option, damages or an account of profits (Section 108). Innocent infringement bars damages, not injunction (Section 111).

Understand Patent Infringement and Remedies

A patent gives the patentee exclusive rights over the invention. When someone makes, uses, sells or imports the invention without permission, the patentee can sue. This suit is called a suit for infringement. This page covers where you file it, what defences exist and what relief the court can give.

Jurisdiction (Section 104). No suit for infringement, for relief against groundless threats (Section 106) or for a declaration of non-infringement (Section 105) can be filed in a court lower than a district court. If the defendant makes a counter-claim for revocation of the patent, the suit and the counter-claim are transferred to the High Court for decision.

Reliefs (Section 108). The court may grant an injunction, on such terms as it thinks fit. The plaintiff then chooses between damages and an account of profits. Damages compensate the patentee for loss. An account of profits makes the infringer hand over the profit made from infringing. You cannot have both. Under Section 108(2) the court may also order infringing goods, and materials and implements mainly used to create them, to be seized, forfeited or destroyed, without any compensation.

Limits on relief. Section 111(1) bars damages and account of profits against a defendant who proves that, on the date of infringement, he was not aware and had no reasonable grounds to believe the patent existed. The word "patent" or "patented" on an article does not by itself give awareness unless the patent number accompanies it. The court may refuse damages for infringement during non-payment of the renewal fee before extension (Section 111(2)). After an amendment by disclaimer, correction or explanation, no damages are granted for use before the amendment decision, unless the original specification was framed in good faith and with reasonable skill and knowledge (Section 111(3)). In every case, the court's power to grant an injunction stays (Section 111(4)).

Related provisions. Every ground for revocation under Section 64 is a ground of defence (Section 107(1)). Government use and similar conditions under Section 47 are also defences (Section 107(2)). Use on foreign vessels, aircraft or land vehicles that are in India temporarily or accidentally is not infringement, if reciprocity exists (Section 49). An exclusive licensee can sue like the patentee (Section 109). If only some claims are valid, relief can be granted on the valid claim (Section 114).

Key rules to remember

Court with jurisdiction: Infringement suit → not below a district court; with revocation counter-claim → High Court; Section 104. The suit and the counter-claim go to the High Court together.
Reliefs available: Injunction + (damages OR account of profits) + seizure, forfeiture or destruction of infringing goods; Section 108. The plaintiff chooses one of damages or account of profits. Destruction is without compensation.
Innocent infringer: No damages or account of profits if defendant proves no awareness and no reasonable grounds to believe the patent existed; Section 111(1). Injunction is still available under Section 111(4). The label "patented" without the patent number is not enough to show awareness.
Exclusive licensee: Exclusive licensee may sue for infringement after the date of licence; patentee joined as plaintiff or added as defendant; Section 109. The added patentee is not liable for costs unless he appears and takes part.
Partially valid specification: Valid claim infringed → relief; if invalid claim not framed in good faith with reasonable skill → injunction only; Section 114. If the invalid claim was framed in good faith, full relief is available, subject to court discretion on costs and date of damages.
Groundless threats: Aggrieved person may seek declaration + injunction + damages; Section 106. Mere notification of the existence of a patent is not a threat.

How to solve Patent Infringement and Remedies questions

Use this order for any case-based question on infringement. Tie each step to the facts given.

1Identify the parties and their status: patentee, exclusive licensee, defendant, or person threatened.
2Check whether the act complained of falls within the patentee's rights and whether the patent was in force (lapsed or restored patents: Section 62).
3Decide the forum: district court at minimum; High Court if there is a revocation counter-claim (Section 104).
4List possible defences: revocation grounds (Section 107(1)), Section 47 conditions (Section 107(2)), foreign vessel exception (Section 49).
5Test the knowledge of the defendant for Section 111(1). Check for a patent number on the product.
6State the reliefs: injunction, damages or account of profits, and seizure or destruction (Section 108).
7Add special points: partially valid claims (Section 114), amendments (Section 111(3)), transmission of judgment to the Controller (Section 151(2)).
8Conclude clearly with the relief likely to be granted and advise the client.

Quickest way: Forum, defence, knowledge, relief

When to use it: Use this when you have limited time for a short case question.

Forum: district court or High Court (Section 104).
Defence: is any Section 64 or Section 47 ground available?
Knowledge: is the defendant innocent under Section 111(1)?
Relief: injunction always possible; damages or account of profits only if not innocent.
Write the section numbers next to each point.

Common mistakes in Patent Infringement and Remedies

Saying the plaintiff can claim both damages and an account of profits.
Students treat all reliefs as cumulative.
Fix: Section 108(1) says "either damages or an account of profits" at the plaintiff's option. Injunction can be added to either.
Saying an innocent infringer escapes all relief.
Section 111(1) is remembered, but 111(4) is missed.
Fix: Innocence bars damages and account of profits only. The court can still grant an injunction.
Treating the word "patented" on a product as proof of knowledge.
It seems like a clear notice.
Fix: Under the Explanation to Section 111, the patent number must accompany the word.
Filing the suit in any civil court or magistrate's court.
Students forget the court hierarchy.
Fix: Section 104 requires a district court at minimum. A revocation counter-claim moves the whole matter to the High Court.
Treating a notice that merely mentions the patent as a groundless threat.
Any warning letter looks like a threat.
Fix: Under the Explanation to Section 106, mere notification of the existence of a patent is not a threat of proceedings.
Ignoring Section 114 when only some claims are invalid.
Students assume the whole patent falls.
Fix: The court may grant relief on the valid claim. Without good faith in the invalid claim, relief is limited to an injunction.

Worked examples

Example 1

Veda Pharma Ltd holds a patent for a process. Kiran Labs uses the process without licence. Kiran Labs proves it had no knowledge of the patent and no reasonable grounds to believe one existed. Veda sues in the district court. Advise on the reliefs available.

Show the solution

Forum: a suit for infringement can be filed in a district court having jurisdiction (Section 104).
Kiran Labs is the defendant and claims innocence. Section 111(1) bars damages or an account of profits if the defendant proves lack of awareness and of reasonable grounds for belief, at the date of infringement.
The burden is on Kiran Labs to prove this.
If proved, Veda cannot get damages or an account of profits. Section 111(4) keeps the court's power to grant an injunction.
If Kiran Labs fails to prove innocence, Veda can seek an injunction and either damages or an account of profits (Section 108(1)).

Answer: If Kiran Labs proves innocence, Veda can get only an injunction. If not, Veda can get an injunction plus either damages or an account of profits, and the court may also order destruction of infringing goods.

Example 2

Arjun Industries sues Meera Tech for infringement of a patent. Meera Tech files a counter-claim seeking revocation of the patent. Before which court will the matter be decided? Can Meera Tech use the grounds for revocation as a defence?

Show the solution

The suit was filed in a district court, which is the minimum forum under Section 104.
Meera Tech made a counter-claim for revocation. The proviso to Section 104 requires transfer of the suit along with the counter-claim to the High Court.
Section 107(1) makes every ground of revocation under Section 64 available as a defence in an infringement suit.
So Meera Tech can plead those grounds both as a defence and in its counter-claim.
If the court finds a claim valid or invalid in the suit, it must send a copy of its judgment and decree to the Controller, who makes an entry in a supplemental record (Section 151(2)).

Answer: The High Court decides the suit and the counter-claim together. Meera Tech can use Section 64 revocation grounds as a defence.

Exam tips

Quote section numbers: 104 for forum, 108 for reliefs, 111 for limits, 107 for defences.
Write "either damages or account of profits" exactly; examiners look for it.
In case questions, always test innocence under Section 111 and say that an injunction survives.
Mention the counter-claim and High Court transfer whenever the defendant attacks validity.
End with a firm conclusion that names the reliefs the court is likely to grant.

Practice questions from Patent Documentation, Examination and Infringement

Patent Infringement and Remedies in other exams

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

CS ExecutiveInfringement, Remedies and Appeals

Patent Infringement and Remedies: frequently asked questions

Which court hears a patent infringement suit in India?

A district court having jurisdiction, or any higher court, can hear it. No lower court can. If the defendant makes a counter-claim for revocation, the suit and counter-claim go to the High Court (Section 104).

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

No. Section 108(1) allows the plaintiff to choose either damages or an account of profits. An injunction can be granted along with either.

Can an exclusive licensee file an infringement suit?

Yes. The holder of an exclusive licence has the same right as the patentee to sue for infringement after the date of the licence. The patentee must be joined as plaintiff or added as defendant (Section 109).

Is selling goods marked 'patented' enough to prove the buyer knew of the patent?

No. The word alone is not enough. The patent number must accompany it, as stated in the Explanation to Section 111(1).

Can I sue for infringement that happened while a patent had lapsed?

No. Where a patent is restored, no suit can be filed for infringement between the date it ceased to have effect and the date of publication of the restoration application (Section 62(2)).