Section 110 of the Patents Act, 1970
Right of licensee under section 84 to take proceedings against infringement
Allows a compulsory licensee to sue for infringement in its own name if the patentee refuses or neglects to act within two months.
Official legal text
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What this section says, in plain language
A compulsory licence granted under Section 84 exists because the patented invention was not reasonably available to the public, or was not being worked in India, or was priced beyond reach. The licensee is expected to invest, manufacture and supply. That investment would be pointless if a third party could copy the product freely and the licensee had no way to stop it. Section 110 fills the gap by giving the compulsory licensee a conditional right to enforce the patent.
The right is conditional because the patentee is the owner and should be given the first opportunity to act. The licensee must call upon the patentee to take proceedings to prevent the infringement. If the patentee refuses, or simply does nothing, within two months of being called upon, the licensee may institute proceedings for infringement in its own name as if it were the patentee.
The patentee is not left out of the case. It is made a defendant in the suit brought by the licensee. As with a suit by an exclusive licensee, a patentee added in this way is not liable for costs unless it enters an appearance and takes part in the proceedings. That protects a patentee who has already lost control of the invention through a compulsory licence from being dragged into paying for litigation it did not want.
The call upon the patentee should be made carefully and in writing, identifying the infringer, the acts complained of and the claims said to be infringed, and it should be sent to the address for service on record. The two month period is counted from that call, so a vague or misdirected communication can leave a licensee arguing about whether the condition was ever satisfied.
This section shows something important about the design of the Act. A compulsory licence is not a second-class right. Once granted, the licensee is expected to behave like a genuine commercial supplier, and it is given a real enforcement tool to protect the market it is required to serve. A patentee facing a compulsory licence should understand that it may end up as a defendant in litigation started by that licensee, and should decide promptly whether to take over the enforcement itself.
Why this section matters
Holders of compulsory licences granted under Section 84, patentees subject to such licences, and third parties infringing a compulsorily licensed patent.
After a compulsory licence is in force and an infringement is discovered, once the patentee has been called upon to act.
A right in the compulsory licensee to sue in its own name if the patentee refuses or neglects to act within two months, with the patentee made a defendant.
A licensee that sues without first calling on the patentee, or before the two month period runs out, risks having its suit met with a preliminary objection and losing time it cannot afford.
How it works in practice
A compulsory licensee protects its own market
Anand Life Sciences Pvt Ltd of Indore is granted a compulsory licence under Section 84 over a patented formulation, on terms fixed by the Controller that require supply at a controlled price and payment of royalty to the patentee. Anand builds a production line and begins supplying hospitals. Eight months later it finds that a trader in Nagpur is importing and selling an unlicensed copy of the same formulation below the controlled price. Anand writes to the patentee, a foreign company, giving the trader's name, the invoices it has obtained and the claims it says are infringed, and calls upon the patentee to take proceedings. The patentee replies that it has no interest in enforcing a patent that has been compulsorily licensed against its wishes. Two months pass with no action. Anand then files an infringement suit in the District Court in its own name under Section 110, making the patentee a defendant. The patentee does not enter an appearance, so it bears no costs. Anand is able to protect the market it was licensed to supply, and the trader is restrained.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- The right belongs to a licensee holding a compulsory licence under Section 84.
- The licensee must first call upon the patentee to take proceedings against the infringer.
- If the patentee refuses or neglects to act within two months, the licensee may sue in its own name.
- The suit proceeds as if the licensee were the patentee.
- The patentee is made a defendant, and bears no costs unless it appears and takes part.
- Put the call to the patentee in writing, with full particulars, so the two month period can be proved.
Common mistakes and misunderstandings
- Filing suit immediately without calling upon the patentee. The call and the two month wait are conditions of the right.
- Sending an informal message rather than a written notice with particulars, then being unable to prove when the period began.
- Assuming a voluntary licensee has the same right. This section is specific to compulsory licences under Section 84.
- Expecting the patentee to fund or run the case simply because it is named as a defendant.
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
- The compulsory licensee must wait two months after calling upon the patentee to take proceedings before it can sue in its own name.
Open the deadline calculator — and have every date confirmed against the current Rules before you rely on it.
Where a fee is payable under this provision, the figure comes from the First Schedule. Categories of applicant are charged at different rates, and electronic filing is treated differently from paper filing, so an accurate number can only come from the Schedule in force on the day you file. How Indian patent fees work.
Related judgments
This part of the page is reserved for summaries of decided cases. They are added one at a time, after review by a person qualified to confirm that the summary matches the judgment. Nothing has been cleared for this provision so far, so there is nothing to show. How case notes are prepared.
Questions people ask about Section 110
Can a compulsory licensee sue for patent infringement?
Yes, but not immediately. Section 110 requires the licensee under Section 84 first to call upon the patentee to take proceedings to prevent the infringement. If the patentee refuses or neglects to do so within two months of being called upon, the licensee may institute proceedings in its own name as if it were the patentee. The patentee is then made a defendant in that suit. This sequence protects the owner's primary right while ensuring the licensee's market is not left unprotected.
What should the notice to the patentee contain?
Treat it as a formal document, because the two month period runs from it. Identify the infringer and its address, describe the infringing product or process, state which claims you say are infringed, attach the evidence you have such as invoices, samples or listings, and expressly call upon the patentee to take infringement proceedings. Send it to the patentee's address for service on the record at the Patent Office and keep proof of dispatch and delivery, so that the date is beyond argument.
What if the patentee does start proceedings after I call upon it?
Then the patentee is exercising its own right and your independent suit under Section 110 does not arise. The condition in the section is that the patentee refuses or neglects to act within two months. If the patentee files promptly, watch how the case is run: as licensee you have a commercial interest in the outcome, and you may seek to be joined so that your loss is placed before the court. Keep supplying evidence of infringing sales to the patentee's advisers.
Holding a compulsory licence and facing an infringer?
MYCrave helps compulsory licensees issue a proper call to the patentee and prepare enforcement once the two month period expires.
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