Section 104 of the Patents Act, 1970
Jurisdiction
Fixes the District Court as the lowest court for patent suits, with transfer to the High Court when the defendant counter-claims for revocation.
Official legal text
The verbatim statutory text of this provision is reproduced from the official source and checked by our legal reviewer before it is published here. Until that check is complete for this page, read the exact wording directly from the official source linked below — it is the only version that governs.
Treat this page as a guide. The provision as officially published, along with the Gazette notifications that apply to it, remains the governing text and overrides any simplification here.
What this section says, in plain language
Section 104 answers the first question in any patent dispute: where do you file? The answer is that a suit for infringement of a patent, a suit for a declaration of non-infringement under Section 105, and a suit for relief against groundless threats under Section 106 cannot be filed in any court lower than a District Court that has jurisdiction to try the suit. Munsif courts, civil judge junior division courts and similar courts below the District Court are excluded, whatever the value of the claim.
The reason is competence rather than status. Patent cases involve claim construction, prior art, expert evidence and complex injunction questions. The Act keeps them in courts that are equipped for that work and, through the second part of the section, moves them higher still when the patent itself is under attack.
That second part is the one that decides how most Indian patent litigation actually unfolds. If the defendant, instead of merely denying infringement, files a counter-claim for revocation of the patent, the suit together with the counter-claim must be transferred to the High Court for decision. The logic is simple: only the High Court can revoke a patent, so validity and infringement should be tried together by the same forum rather than split between two courts with a risk of conflicting findings.
The practical consequence is that a revocation counter-claim is a strategic move, not just a defensive one. A defendant sued in a District Court far from its base can change the forum by putting validity in issue. A patentee choosing where to sue should therefore plan on the assumption that the case may end up in the High Court, and should assess its own patent for validity risk before filing rather than after transfer.
The overall picture became simpler after the Tribunals Reforms Act, 2021 abolished the Intellectual Property Appellate Board. Standalone revocation petitions under Section 64 now go to the High Court, appeals from the Controller lie to the High Court under Section 117A, and infringement suits still start in the District Court under Section 104 unless and until a revocation counter-claim moves them up. Section 104 says nothing about which territorial court is right; that continues to be governed by the ordinary rules of civil procedure on where the defendant resides or carries on business, or where the cause of action arose.
Why this section matters
Patentees planning enforcement, exclusive licensees, defendants and their advisers, and any business that has received an infringement notice.
At the point of filing a patent suit, and again the moment a revocation counter-claim is filed.
A floor on which court may hear patent suits, and a mandatory transfer to the High Court once revocation is counter-claimed.
A suit filed in a court below the District Court is liable to be returned or dismissed for want of jurisdiction, wasting the limitation period and giving the other side an early advantage.
How it works in practice
A counter-claim moves the case to the High Court
Kestrel Robotics Pvt Ltd holds a patent on a warehouse sorting arm and finds that Godavari Automation Pvt Ltd of Vijayawada is selling a similar unit. Kestrel files an infringement suit in the District Court at Vijayawada, where Godavari has its factory, and asks for an interim injunction. Godavari does not simply deny infringement. It files a written statement together with a counter-claim for revocation, arguing that the main claim is obvious over a German patent published three years before Kestrel's priority date, and that the specification does not disclose how the gripper achieves the claimed tolerance. Because a counter-claim for revocation has been filed, the suit and the counter-claim must go to the High Court, and the District Court transfers the whole matter. Kestrel now faces a validity contest in a higher forum, with the interim injunction application still undecided. Had Kestrel commissioned a validity opinion and a freedom to operate search before suing, it would have known that the German document existed and could have framed its claim strategy differently.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- Patent infringement suits, declaratory suits under Section 105 and threats suits under Section 106 must start at District Court level or higher.
- No court below the District Court can try these suits, regardless of the amount claimed.
- A defendant's counter-claim for revocation forces transfer of the suit and counter-claim to the High Court.
- Only the High Court can revoke a patent, so validity and infringement are tried together there.
- Territorial jurisdiction still follows the ordinary civil procedure rules.
- Since 2021, revocation petitions and appeals from the Controller also lie to the High Court.
Common mistakes and misunderstandings
- Assuming a small claim can be filed in a lower civil court. The bar applies regardless of the value of the suit.
- Treating a revocation counter-claim as an ordinary defence. It changes the forum for the entire case.
- Confusing subject-matter jurisdiction with territorial jurisdiction. Section 104 sets the level of court, not the place.
- Filing a suit without a validity assessment, then being surprised when the patent is attacked and the case moves up.
Connected provisions
- ActSection 105Power of court to make declaration as to non-infringement
- ActSection 106Power of court to grant relief in cases of groundless threats of infringement proceedings
- ActSection 107Defences, etc., in suits for infringement
- ActSection 64Revocation of patents
- ActSection 108Reliefs in suits for infringement
- ActSection 117AAppeals to High Court
The rules connected to a section are listed on their own because they are subordinate legislation. They cannot go beyond the Act, but they can be changed by notification without a new statute, so seeing them separately makes it easier to check whether the current procedure is still what you remember.
Forms, deadlines and fees
The official fee for anything described on this page is set out in the First Schedule to the Patents Rules. It is not the same for every applicant, and it is not the same for online and physical filing, which is why no amount is stated here. How Indian patent fees work.
Related judgments
Bajaj Auto Ltd. v. T.V.S. Motor Company Ltd.
JT 2009 (12) SC 103 (Supreme Court of India, judgment dated 16 September 2009)
Question before the courtHow trial courts should handle intellectual property suits that stall for years at the interim injunction stage.
HeldDealing with a long running dispute over an engine technology, the Court observed that suits about patents, trade marks and copyright too often become extended fights over interim orders while the main case waits. It directed that such suits be heard from day to day and brought to a conclusion within a short fixed period from filing, and asked courts and tribunals across the country to follow that approach. The direction concerned the conduct of proceedings; the Court did not decide the merits of the patent dispute.
Citation details are being confirmed against an official report before this summary is treated as verified.
Case notes are written in our own words from the judgment and are published only after legal review. They are not advice and not a prediction about any other matter. All case notes.
Questions people ask about Section 104
Where do I file a patent infringement suit in India?
In a District Court that has territorial jurisdiction, or in a High Court that exercises original civil jurisdiction where that is available. Section 104 bars any court below the District Court from trying patent infringement suits, declaratory suits under Section 105 and groundless threats suits under Section 106. Which District Court is the right one is decided by the ordinary rules of civil procedure, based on where the defendant resides or carries on business, or where the cause of action arose.
What happens if the defendant asks for my patent to be revoked?
The case moves up. When a defendant files a counter-claim for revocation, Section 104 requires the suit and the counter-claim to be transferred to the High Court for decision. This is because revocation is within the High Court's power alone, and it would be unsatisfactory to try infringement in one court and validity in another. Plan for this possibility before you sue: a defendant with a serious prior art position will often use the counter-claim to change the forum.
Can I still sue if my patent application has not been granted yet?
You cannot file an infringement suit on a pending application. Rights to sue arise on grant. What publication under Section 11A does give you is a claim for the period from publication to grant, which can only be pursued after the patent is granted. So an applicant who discovers copying should record the evidence, keep dated samples and invoices, and be ready to act once grant is notified. Speak to a professional about interim options rather than sending threatening letters, because Section 106 penalises groundless threats.
Does the IPAB still hear patent matters?
No. The Intellectual Property Appellate Board was abolished by the Tribunals Reforms Act, 2021, and its patent jurisdiction was transferred to the High Courts. Revocation petitions under Section 64 and appeals from decisions of the Controller under Section 117A are now filed in the High Court. Several High Courts have set up dedicated intellectual property divisions with their own rules, so check the rules of the relevant High Court before filing.
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