Section 106 of the Patents Act, 1970
Power of court to grant relief in cases of groundless threats of infringement proceedings
Lets a person threatened with baseless patent infringement proceedings sue for a declaration, an injunction against the threats and damages.
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.
Read this as a plain-language summary. If it and the official text, or a relevant Gazette notification, say different things, the official text and the notification are what count.
What this section says, in plain language
A threat can do as much commercial damage as a suit. If a patent owner writes to a retailer, a distributor, an e-commerce platform or a customer saying that a product infringes and that proceedings will follow, orders are cancelled and shelves are cleared long before any court has looked at the patent. Section 106 exists to stop that tactic being used without foundation. It allows the person aggrieved by the threat to take the initiative and go to court.
The section is deliberately broad about who can be sued. It applies to threats made by any person, whether or not that person is entitled to or interested in a patent or an application for a patent. It also covers the form the threat takes: circulars, advertisements, letters, emails, notices to platforms and even oral communications all count. So a competitor with no patent at all, or a licensee acting beyond its authority, can be caught.
Three reliefs are available to the aggrieved person: a declaration that the threats are unjustifiable, an injunction restraining the threats from continuing, and damages for the loss suffered. The plaintiff proves the threat and the loss; it does not have to prove that the patent is bad.
The defence is the obvious one. If the person who made the threat shows that the acts complained of do, or would if done, constitute infringement of a patent that is in force, or of rights arising from the publication of a complete specification in respect of a claim that is not shown to be invalid, the threat was justified and no relief follows. In other words, a genuine patentee with a real case has nothing to fear from this section.
One safe harbour is important in day-to-day practice. Merely notifying the existence of a patent is not a threat. Marking a product with the patent number, publishing that a patent has been granted, or writing to inform another company that a patent exists does not by itself attract Section 106. The line is crossed when the communication asserts infringement and holds out proceedings. That is why careful practitioners send a measured letter that identifies the patent, sets out the claim mapping and invites discussion, rather than a broadcast to the whole trade channel. Threatening the customers of a competitor, in particular, is the classic fact pattern for a Section 106 suit.
Why this section matters
Manufacturers, sellers, distributors, retailers and online platforms who receive infringement threats, and patentees or their agents who send them.
As soon as a threat is made, whether before or without any infringement suit being filed.
A right in the threatened person to a declaration, an injunction against further threats and damages, and a corresponding risk for anyone who threatens without a sound case.
A patentee who sends sweeping notices to a rival's customers may find itself as a defendant, restrained from communicating and paying damages, while a threatened business that stays silent may lose its distribution network.
How it works in practice
Notices to a rival's dealers backfire
Sundara Appliances Pvt Ltd of Rajkot holds an Indian patent on a burner design. It believes that Anaya Kitchens Pvt Ltd of Ludhiana is copying it. Instead of writing to Anaya, Sundara emails eighty dealers and two online marketplaces saying that Anaya's stoves infringe its patent, that stocking them is unlawful and that legal proceedings will be launched against anyone who continues to sell. Within ten days most dealers return stock and one marketplace delists the product. Anaya files a suit under Section 106 in the District Court, seeking a declaration that the threats are unjustifiable, an injunction against further communications and damages for lost sales, supported by cancelled purchase orders and delisting screenshots. Sundara's defence is that the stoves really do infringe, so it must now prove infringement of a valid claim. Its claim chart shows that Anaya's burner lacks the annular baffle recited in the only independent claim. Because it cannot establish infringement, the threats stand unjustified. Had Sundara written a reasoned letter to Anaya alone, or simply informed dealers that its patent existed without asserting infringement, its position would have been very different.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- Anyone aggrieved by a threat can sue, and the threat-maker need not own a patent at all.
- Threats by circular, advertisement, letter, email or word of mouth are all covered.
- Available relief is a declaration, an injunction against further threats and damages.
- The complete defence is proving that the acts complained of do infringe a valid claim in force.
- Merely notifying the existence of a patent is not a threat.
- Notices sent to a competitor's customers and platforms carry the highest risk.
Common mistakes and misunderstandings
- Believing that owning a patent makes any warning letter safe. It is safe only if infringement can actually be proved.
- Sending mass notices to trade channels before completing a claim-by-claim infringement analysis.
- Assuming that oral warnings leave no trace. Oral communications are expressly covered and can be proved by witnesses.
- Treating this section as an alternative to revocation. It addresses the threat, not the validity of the patent.
- Failing to record commercial loss. Damages need evidence of cancelled orders, delistings and lost margin.
Connected provisions
This page explains a section of the Patents Act, 1970. The working detail that goes with it lives in the Patents Rules, 2003. The connected rules appear in their own block so that the statutory duty and the procedural steps stay clearly distinguishable when you cite either one.
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
Case law is added slowly and deliberately. A summary is drafted, checked against the reported judgment and then reviewed before publication, because a wrong case note can mislead a reader badly. No summary for this provision has reached publication yet. How case notes are prepared.
Questions people ask about Section 106
I received a patent infringement notice. Can I sue the sender?
You can, if the notice amounts to a threat of infringement proceedings and you are aggrieved by it. Section 106 lets you seek a declaration that the threats are unjustifiable, an injunction stopping further threats and damages for your loss. The sender's defence is to prove that what you are doing really would infringe a patent in force. So before you file, get a claim-by-claim analysis of your own product. If it does infringe, a suit under this section will not help you.
Is writing to a competitor's customers about my patent risky?
Yes, this is the highest risk communication in Indian patent practice. If the letters assert that a product infringes and hold out proceedings, and you cannot later prove infringement of a valid claim, you face a declaration, an injunction and damages under Section 106. A safer approach is to write to the competitor directly, identify the patent and the claims, set out your mapping, and invite a response. Merely telling the trade that a patent exists, without alleging infringement, is not a threat.
Does the patent have to be invalid for me to win a threats case?
No. You are not required to attack the patent. Your case is that the threats were made and were unjustifiable. The defendant carries the task of showing that the acts complained of do, or would, constitute infringement of a claim that is in force and not shown to be invalid. Of course, if you also believe the patent should never have been granted, you can pursue revocation under Section 64 in the High Court as a separate proceeding.
What counts as a threat under Section 106?
Any communication that holds out infringement proceedings, whatever its form. Circulars to dealers, advertisements in trade journals, takedown notices to marketplaces, emails, legal notices and even spoken warnings at a trade fair can qualify. What does not qualify is a simple notification that a patent exists, such as marking a product with the patent number or publishing news of the grant. The distinction turns on whether the message accuses the recipient, or the recipient's supplier, of infringing and signals legal action.
Received or sent a patent infringement threat?
MYCrave reviews claim mapping before notices go out, and helps businesses respond when baseless threats hit their distribution channel.
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