Part 3 of the Patent Infringement and Patent Administration Study Series
Quick Answer
The main remedies for patent infringement in India are an injunction and, at the plaintiff's option, either damages or an account of profits. A court may also order infringing goods and materials to be seized, forfeited or destroyed. These remedies are civil, discretionary and governed principally by Sections 104, 108 and 111 of the Patents Act, 1970.
Patent infringement affects the exclusive rights granted to a patentee. Once infringement is established, a remedy should stop the unlawful conduct, compensate or strip the profit derived from it, and prevent infringing goods from returning to the market. At the same time, the court must apply the statutory limits and consider the facts of the particular dispute.
Patent Infringement and Patent Administration: Complete Study Series
- Patent Infringement in India: Meaning, Rights and Tests
- Patent Infringement Doctrines in India: Equivalents, Complete Coverage and Estoppel
- Remedies for Patent Infringement in India
- Defences in Patent Infringement Cases in India
- Controller of Patents: Powers and Functions in India
- IPAB Abolition in 2021: History and Present Patent Appeal System
The official text of the Patents Act, 1970 should be read with the facts and procedural stage of each case.
Where is a patent infringement suit filed?
Section 104 provides that an infringement suit cannot be instituted in a court inferior to a District Court having jurisdiction. If the defendant makes a counterclaim for revocation of the patent, the suit and counterclaim are transferred to the High Court for decision.
This forum rule is separate from the question of who may sue. The patentee may enforce the patent, while Sections 109 and 110 separately deal with the rights of an exclusive licensee and a licensee under a compulsory licence. It is therefore inaccurate to treat every person described as a licensee as automatically entitled to institute an infringement suit.
Exam Note: Remember the distinction between Section 104, which deals with the forum, and Sections 109–110, which deal with specified licensees.
What remedies are available under Section 108?
Section 108 recognises three principal forms of relief:
| Remedy | Purpose | Important point |
|---|---|---|
| Injunction | Stops or restrains infringement | May be interim or permanent |
| Damages or account of profits | Provides monetary relief | The plaintiff must choose between the two |
| Seizure, forfeiture or destruction | Removes infringing goods and relevant materials from circulation | Ordered when the court considers it appropriate |
These remedies are not automatic. The court considers the evidence, the validity and scope of the patent, the alleged infringing acts, the conduct of the parties and the form of relief actually claimed.
What is an injunction in a patent case?
An injunction is a court order restraining the defendant from continuing the acts found or alleged to infringe the patent. It is often the most important remedy because continued manufacture or sale during litigation can reduce the commercial value of the patent before the case is finally decided.
Interim injunction
An interim or temporary injunction operates while the suit is pending. At this stage, the court does not conduct a complete trial. It generally considers whether:
- the plaintiff has shown a prima facie case;
- the balance of convenience favours protection; and
- refusal of relief may cause an injury that cannot adequately be repaired later by money.
Patent cases add technical and public-interest questions to this familiar test. The court may have to examine the apparent strength of the patent, the claim comparison, the defendant's validity challenge and the effect of an order on the parties and the public.
The earlier interim proceedings in F. Hoffmann-La Roche Ltd. v. Cipla Ltd. are frequently discussed because the court considered access to a life-saving medicine while refusing temporary relief. The dispute later proceeded to a full trial and appeal, so a student should not treat the interim order as the final infringement decision. The later Division Bench judgment is available from the official Delhi High Court website.
Permanent injunction
A permanent injunction is granted after the court finally finds infringement and concludes that continuing restraint is justified. It normally prevents the defendant from carrying out the infringing acts for the remaining term of the patent, subject to the precise wording of the decree.
In Merck Sharp & Dohme Corp. v. Glenmark Pharmaceuticals Ltd., the Delhi High Court's Division Bench examined the suit patent, claim coverage and the requirements for interim protection. The official judgment dated 20 March 2015 is useful for understanding how claim construction and the apparent strength of the infringement case affect injunctive relief.
What is the difference between damages and an account of profits?
Section 108(1) permits the plaintiff to choose damages or an account of profits. Both are monetary remedies, but they answer different questions.
| Monetary remedy | Central question | Basic purpose |
|---|---|---|
| Damages | What loss did the plaintiff suffer because of the infringement? | Compensation |
| Account of profits | What profit did the defendant make from the infringement? | Preventing the defendant from retaining wrongful gain |
Damages
Damages seek to place the plaintiff, so far as money can do so, in the position in which the plaintiff would have been if the infringement had not occurred. Relevant evidence may include lost sales, price erosion, licence terms, market conditions and the causal connection between the infringement and the claimed loss.
The existence and amount of loss must be proved. A court should not assume that every sale by the defendant would necessarily have become a sale by the patentee.
Account of profits
An account of profits focuses on the benefit obtained by the defendant from the infringing activity. The defendant may be required to disclose relevant accounts, after which the court determines the profit properly attributable to the infringement.
This remedy can be difficult in practice when a product contains many non-infringing components or when reliable accounts are unavailable. It remains an alternative to damages, not an additional amount automatically recoverable with damages.
Key Distinction: Damages measure the patentee's proved loss. An account of profits examines the infringer's attributable gain.
Can a court seize or destroy infringing goods?
Yes. Section 108(2) allows the court to order infringing goods, and materials and implements predominantly used to create them, to be seized, forfeited or destroyed without payment of compensation, as the court considers appropriate.
This relief prevents the same stock or manufacturing material from re-entering commerce after judgment. Its use depends on the facts. The wording of Section 108(2) should be followed carefully because it does not authorise the destruction of every item remotely connected with the defendant's business.
How does innocent infringement affect relief?
Intention is generally not required to decide whether an act falls within the patentee's exclusive rights. Knowledge can, however, affect monetary relief.
Under Section 111(1), damages or an account of profits cannot be granted against a defendant who proves that, at the date of infringement, the defendant was unaware and had no reasonable grounds for believing that the patent existed. Section 111(4) preserves the court's power to grant an injunction.
Innocent infringement is therefore not a complete answer to the suit. It may protect the defendant from the two monetary remedies while leaving injunctive relief available.
What special rule applies to process patents?
Section 104A addresses the evidentiary difficulty faced by the holder of a process patent. The manufacturing method may be known only to the defendant.
The plaintiff must first prove that the defendant's product is identical to the product directly obtained by the patented process. The court may then direct the defendant to prove that its process is different when either:
- the patented process produces a new product; or
- there is a substantial likelihood that the identical product was made by the patented process, and reasonable efforts have not enabled the plaintiff to determine the process actually used.
The shift is conditional. Identical products do not reverse the burden automatically in every process-patent case. The court must also protect manufacturing and commercial secrets against unreasonable disclosure.
Does the Controller award infringement remedies?
Infringement remedies under Section 108 are granted by courts. The Controller of Patents performs different statutory functions, including opposition proceedings, compulsory licensing, amendment and restoration. A compulsory licence may reduce the possibility of unlawful use by creating a lawful route to work the patent, but it is not damages or an injunction for past infringement.
The Controller's wider powers are explained separately in Controller of Patents: Powers and Functions in India.
Key Takeaways
- Patent infringement in India is enforced principally through civil proceedings.
- Section 104 sets the minimum court and transfers a suit with a revocation counterclaim to the High Court.
- An injunction may be interim or permanent, but it remains a discretionary remedy.
- Damages and an account of profits are alternatives under Section 108(1).
- Section 108(2) permits appropriate orders for seizure, forfeiture or destruction.
- Lack of knowledge may restrict monetary relief under Section 111 without necessarily preventing an injunction.
Frequently Asked Questions
Is patent infringement a criminal offence in India?
An ordinary claim that someone has infringed the exclusive rights in a patent is pursued through civil proceedings. The Patents Act contains separate offences relating to matters such as false entries or falsely representing an article as patented, but those provisions should not be confused with the civil infringement action.
Can a patentee receive damages and an account of profits together?
No. Section 108 gives the plaintiff an option between damages and an account of profits.
Can an injunction be granted before the trial ends?
Yes. A court may grant an interim injunction after considering the prima facie case, balance of convenience and risk of irreparable injury, together with patent-specific factors.
Can infringing goods be destroyed?
Yes. Section 108(2) permits seizure, forfeiture or destruction of infringing goods and specified materials or implements when the court considers the order appropriate.
Does accidental infringement remove all liability?
No. If Section 111(1) is proved, damages and an account of profits may be unavailable for the relevant infringement, but the court can still grant an injunction.
Who grants compensation for patent infringement?
The competent civil court grants infringement relief. The Controller's licensing and administrative powers serve different purposes.
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Last verified: 27 September 2026. Statutory references were checked against the official India Code text of the Patents Act, 1970.