Section 108 of the Patents Act, 1970
Reliefs in suits for infringement
Sets out what a court can award for patent infringement: an injunction, and at the plaintiff's option either damages or an account of profits.
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 108 is the remedies provision. Once infringement of a valid patent is established, this is the menu the court works from. The reliefs a court may grant are an injunction, subject to such terms as it thinks fit, and at the option of the plaintiff either damages or an account of profits. The court may also order that the infringing goods, and the materials and implements predominantly used in creating them, be seized, forfeited or destroyed as it deems fit, without paying any compensation for them.
The injunction is usually the relief that matters most commercially. It stops the infringing activity. Indian courts grant both interim injunctions during the suit and permanent injunctions at the end, and the section allows the court to attach terms, which gives flexibility. A court may, for instance, refuse an interim injunction but require the defendant to deposit money, maintain audited accounts of sales, or give an undertaking about supply.
On money, the plaintiff must choose. Damages measure the plaintiff's loss, typically lost sales and lost margin, or a reasonable royalty on the infringing sales where the plaintiff does not itself manufacture. An account of profits measures the defendant's gain from the infringement. The two cannot be added together, because that would compensate the same wrong twice. The choice is usually made after discovery, when the defendant's sales figures are known, and it is a commercial judgment: an account suits a case where the infringer earned high margins, while damages suit a patentee with strong evidence of its own lost business.
The power over goods and equipment is significant and often overlooked. It reaches not only the infringing articles but the materials and implements predominantly used to make them, which can include moulds, dies and dedicated tooling, and it operates without compensation. That is why courts sometimes appoint local commissioners to visit premises and inventory such items.
The reliefs available under this section are limited by other provisions. Section 111 restricts damages and accounts of profits where the defendant was innocent, where renewal fees had lapsed, or where the specification was amended after publication. Section 114 restricts relief where the specification is only partly valid. Section 113 affects costs where validity has previously been certified. Read together, these sections tell a patentee that a strong case on infringement is not by itself a guarantee of a large money award.
Why this section matters
Patentees and exclusive licensees enforcing rights, and defendants assessing exposure in an infringement suit.
From the interim stage of the suit through to final judgment.
The court's power to injunct, to award damages or an account of profits at the plaintiff's option, and to order seizure, forfeiture or destruction of infringing goods and tooling.
A plaintiff that does not build evidence of loss or of the defendant's profits may win on infringement and recover very little, and a defendant that ignores the tooling power may lose expensive dedicated equipment.
How it works in practice
Choosing between damages and an account
Kestrel Robotics Pvt Ltd succeeds in establishing that Godavari Automation Pvt Ltd infringed its patent on a warehouse sorting arm. The court grants a permanent injunction restraining further manufacture and sale. On money, Kestrel must elect. Its own sales team can show that eleven confirmed enquiries were lost to Godavari, with an average margin of a specified percentage per unit, which supports a damages claim. Discovery, however, reveals that Godavari sold two hundred and forty units at a much higher margin than Kestrel earns, because Godavari sourced castings cheaply from an existing foundry. Kestrel's counsel therefore elects an account of profits, which produces a larger figure than its own lost margin. The court also orders that the remaining unsold units and the two dedicated jigs used to assemble the gripper be delivered up and destroyed, without any compensation to Godavari. Godavari argues that the jigs are also used for other products, so the court examines whether they were predominantly used in creating the infringing goods before making the order.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- The reliefs are an injunction, and at the plaintiff's option either damages or an account of profits.
- Damages and an account of profits cannot both be awarded for the same infringement.
- The court may attach terms to an injunction, which gives it flexibility at the interim stage.
- Infringing goods, and materials and implements predominantly used to make them, can be seized, forfeited or destroyed.
- No compensation is payable for goods and implements dealt with in that way.
- Sections 111, 113 and 114 can cut down the money relief even after infringement is proved.
Common mistakes and misunderstandings
- Asking for damages and an account of profits together. You must elect between them.
- Electing before discovery. The right choice depends on the defendant's sales and margins, which emerge during the case.
- Assuming an injunction follows automatically. Courts weigh prima facie case, balance of convenience and irreparable harm, and a serious validity challenge often defeats an interim injunction.
- Overlooking Section 111. Innocent infringement, a lapsed renewal or a post-publication amendment can bar money relief entirely.
Connected provisions
- ActSection 104Jurisdiction
- ActSection 111Restriction on power of court to grant damages or account of profits for infringement
- ActSection 109Right of exclusive licensee to take proceedings against infringement
- ActSection 114Relief for infringement of partially valid specification
- ActSection 113Certificate of validity of specification and costs of subsequent suits for infringement thereof
- ActSection 48Rights of patentees
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
This site does not carry a fee table. The First Schedule to the Patents Rules is the source, the rates vary with the applicant's category and with the mode of filing, and a figure quoted second-hand goes out of date quietly. How Indian patent fees work.
Related judgments
Merck Sharp & Dohme Corporation & Anr. v. Glenmark Pharmaceuticals Ltd.
2015 SCC OnLine Del 8227 (FAO(OS) 190/2013) · Judgment source ↗
Question before the courtWhether an interim injunction should have been refused to the holder of a patent on a diabetes compound whose salt form a generic maker was selling.
HeldThe Division Bench reversed the refusal and restrained the generic maker pending trial. It took the view that a patent claiming a compound together with its pharmaceutically acceptable salts is not sidestepped by marketing a salt of that compound, so a prima facie case of infringement was shown. The challenge to validity was not thought strong enough at that stage to displace a granted patent. The balance of convenience was weighed on the footing that loss to the patentee would be difficult to measure later.
Citation details are being confirmed against an official report before this summary is treated as verified.
Telefonaktiebolaget LM Ericsson (PUBL) v. Lava International Ltd.
CS(COMM) 65/2016; neutral citation 2024:DHC:2698 · Judgment source ↗
Question before the courtWhether patents said to be essential to telecommunications standards were valid and infringed, and how compensation should be worked out.
HeldAfter a full trial the Court upheld the asserted patents, accepted that they were essential to the standards relied on, and found that they had been infringed. The validity attacks, including those based on the statutory exclusions, were rejected. On remedies the Court awarded damages worked out as a royalty applied to the relevant turnover of the implementer, and it took account of the parties' conduct across years of licence discussions in concluding that the implementer had not behaved as a willing licensee.
Intex Technologies (India) Ltd. v. Telefonaktiebolaget LM Ericsson (PUBL)
FAO(OS)(COMM) 296/2018 and 297/2018; neutral citation 2023:DHC:2243-DB
Question before the courtWhether the holder of standard essential patents can obtain an interim payment from an implementer before trial, and on what terms.
HeldThe Division Bench kept the interim deposit in place while altering the form in which it had to be secured. It held that a patentee is not confined to waiting for damages at the end of a trial, and that a court may order an interim payment where an implementer has used the technology without concluding a licence. It treated fair, reasonable and non-discriminatory obligations as running both ways, so an implementer must also negotiate in good faith, and accepted that licensing a whole portfolio can be consistent with those obligations.
Citation details are being confirmed against an official report before this summary is treated as verified.
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 108
What can I recover if someone infringes my patent in India?
Section 108 allows the court to grant an injunction, on such terms as it thinks fit, and at your option either damages or an account of the infringer's profits. You cannot have both money remedies. The court can also order that infringing goods, and the materials and implements predominantly used to create them, be seized, forfeited or destroyed, without paying the infringer anything for them. Costs are dealt with separately, and Sections 111 and 114 may reduce or bar the money award.
Should I claim damages or an account of profits?
It depends on the numbers, so decide after you have seen the defendant's accounts. Damages compensate your loss, usually lost sales and margin, or a reasonable royalty if you do not manufacture yourself. An account of profits strips the infringer of what it earned. Choose an account where the infringer's margins are higher than yours or where your own loss is hard to prove, and damages where you can show clear lost business. Preserve sales records, price lists and lost tender evidence from the start.
Will the court order destruction of infringing goods?
It may. The section allows the court to order that infringing goods, and materials and implements predominantly used in creating them, be seized, forfeited or destroyed as it deems fit, and no compensation is payable. The word predominantly matters: general purpose machinery used for many products is far less likely to be ordered destroyed than dedicated moulds, dies or jigs made specifically for the infringing article. Courts often appoint a local commissioner to inventory such items first.
Can I get an injunction before the case is finally decided?
Interim injunctions are available and are frequently the real battleground in Indian patent suits. The court considers whether there is a prima facie case, where the balance of convenience lies and whether refusing relief would cause irreparable harm. A credible challenge to the validity of the patent often persuades a court to refuse an interim injunction and instead direct the defendant to keep accounts or deposit money. Sections 108 permits the court to impose such terms as it thinks fit.
What can you actually recover from a patent infringer?
MYCrave helps patentees build damages and profit evidence, and helps defendants assess realistic exposure before litigation escalates.
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