Section 105 of the Patents Act, 1970
Power of court to make declaration as to non-infringement
Lets a person sue for a court declaration that what they make, use or sell does not infringe a particular patent.
Official legal text
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The authority is the enacted text, not this page. Where our wording and the official provision, or an applicable Gazette notification, do not match, the official material prevails.
What this section says, in plain language
Businesses often need certainty before they invest. A company may be about to build a plant, launch a product or sign a supply contract, and it may suspect that a competitor's patent could be pointed at what it plans to do. Waiting to be sued is expensive and disruptive. Section 105 gives such a person a way to go to court first and ask for a declaration that the use of a process, or the making, use or sale of an article, does not or would not amount to infringement of a claim of the patent.
The declaration can be sought even though the patentee has never made any allegation. That is what makes it different from a defence. A person does not have to wait for a notice or a suit; a genuine commercial need for clarity is enough. But because the section allows a private party to drag a patentee into court, the Act attaches conditions before the suit can be brought.
There are two conditions and both matter. First, the person must have applied in writing to the patentee, or to the exclusive licensee, for a written acknowledgement in the terms of the declaration wanted, and must have given full particulars in writing of the process or article in question. Vagueness defeats this: the patentee is entitled to know exactly what is being proposed before deciding whether to acknowledge. Second, the patentee or exclusive licensee must have refused or failed to give that acknowledgement. Only then does the right to sue arise.
Costs work differently here from ordinary litigation. Because the plaintiff has chosen to bring the patentee to court, the costs of all parties are ordinarily borne by the plaintiff unless the court directs otherwise. That is a deliberate discouragement to speculative or harassing declaratory suits, and it means the tool should be used where the commercial stake justifies the spend.
Two limits are worth remembering. The validity of any claim of the specification is not in issue in a declaratory suit, and the making or refusal of the declaration does not amount to any finding that the claim is valid. So a declaration of non-infringement is not a certificate that the patent is good; if you want the patent removed, that is a revocation proceeding under Section 64 in the High Court. Also, the declaration attaches to the specific process or article whose particulars you supplied. Change the design materially and you are outside the protection you obtained.
Why this section matters
Manufacturers, importers, startups and investors planning a launch, and contract manufacturers asked to guarantee freedom to operate.
Before launch or investment, once a written request for acknowledgement has been refused or ignored.
A right to obtain a binding court declaration that a specified process or article does not infringe, subject to the costs rule.
A business that launches without clarity may face an interim injunction at the worst possible moment, and one that sues without first making a proper written request will find its suit is premature.
How it works in practice
Clearing a design before a factory is built
Nirmaan Textiles LLP, a Coimbatore MSME, plans to invest in a new line for a moisture-wicking fabric finish. Its technical head notices an Indian patent held by Sagar Polymers Ltd with claims that might be read to cover a similar finishing step. Nirmaan does not want to spend on machinery and then face an injunction, so it writes to Sagar Polymers with a full technical description of its proposed process, including the chemistry, the sequence of steps and the operating temperatures, and asks for a written acknowledgement that this process does not infringe the patent. Sagar does not reply for three months. Nirmaan then files a suit in the District Court under Section 105 seeking a declaration of non-infringement. Because it supplied full particulars in writing and its request was ignored, the precondition is met. Nirmaan knows it will normally have to bear the costs of both sides, but it decides that certainty before a large capital investment is worth it. It also understands that the suit will not decide whether Sagar's patent is valid; that would require a separate revocation proceeding in the High Court.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- A declaration can be sought even where the patentee has made no accusation.
- You must first ask the patentee or exclusive licensee in writing for an acknowledgement, giving full particulars of the process or article.
- The suit becomes available only if that acknowledgement is refused or not given.
- The suit must be filed in a District Court or higher, as Section 104 requires.
- Costs of all parties are ordinarily paid by the plaintiff unless the court orders otherwise.
- Validity of the claims is not decided, and the declaration implies nothing about validity.
- The declaration covers the particular process or article described, not later variants.
Common mistakes and misunderstandings
- Sending a vague enquiry and treating silence as compliance with the precondition. Full written particulars are required.
- Expecting the court to also strike down the patent. Validity is not in issue in this suit; revocation under Section 64 is a separate route.
- Overlooking the costs rule and treating the suit as a low-risk tactic.
- Assuming the declaration protects a redesigned product. It is tied to the particulars you actually placed before the court.
Connected provisions
Sections and rules are different kinds of law. A section is enacted by Parliament, while a rule is made by the Central Government using powers the Act grants. Keeping them apart shows which text you are reading and which of the two is more likely to have been revised recently.
Forms, deadlines and fees
- There is no fixed statutory waiting period after your written request; you must be able to show the patentee refused or failed to give the acknowledgement before you sue.
Open the deadline calculator — and have every date confirmed against the current Rules before you rely on it.
Any official fee connected with this provision is fixed by the First Schedule to the Patents Rules, not by the provision itself. The amount depends on who the applicant is and on whether the filing is made online or on paper, so no figures are reproduced here. How Indian patent fees work.
Related judgments
Case summaries are published only after a qualified reviewer has checked the judgment, the citation and the way the holding is described. Nothing has cleared that review for this provision yet, so nothing is listed here. We would rather show no case note than one that misstates what a court decided. How case notes are prepared.
Questions people ask about Section 105
Can I get a court to confirm my product does not infringe a patent?
Yes. Section 105 allows any person to sue for a declaration that the use of a process, or the making, use or sale of an article, does not infringe a claim of a patent, even if the patentee has never accused them. Before suing you must write to the patentee or exclusive licensee with full particulars of the process or article and ask for a written acknowledgement to that effect, and that acknowledgement must have been refused or not given.
Who pays the costs in a declaratory non-infringement suit?
Ordinarily the person who brings the suit pays the costs of all parties, unless the court directs otherwise. This is unusual, because costs normally follow the result. The rule exists because the plaintiff is pulling a patentee into litigation over something the patentee may never have complained about. Treat it as the price of certainty. If the investment you are protecting is large, the cost may be worth it; for a small product line it often is not.
Will the court also decide whether the patent is valid?
No. In a suit under Section 105 the validity of any claim is not in issue, and the grant or refusal of the declaration does not imply that any claim is valid. If your real objective is to remove the patent, you need a revocation petition under Section 64 in the High Court, or a counter-claim for revocation if you are sued for infringement. Some businesses run both strategies, but they are distinct proceedings with different tests and different evidence.
How is this different from a freedom to operate opinion?
A freedom to operate opinion is professional advice. It is confidential, quick, and useful for planning, but it does not bind the patentee, and a court is not obliged to follow it. A declaration under Section 105 is a judicial finding, made after the patentee has had a chance to contest it, and it gives real protection for the specific process or article described. Most businesses start with an opinion and use the declaratory suit only where the stakes justify formal certainty.
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