Section 104 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 104 decides which court can hear a patent infringement suit. A suit for a declaration of non-infringement under section 105, a suit for relief against groundless threats under section 106 and a suit for infringement cannot be instituted in any court inferior to a district court having jurisdiction to try the suit. If the defendant makes a counter-claim for revocation of the patent, the suit, along with the counter-claim, must be transferred to the High Court for decision. If you plan to sue or have been sued, our legal dispute resolution team can help you choose and manage the forum.
Three kinds of suit may not be filed in any court inferior to a district court having jurisdiction: infringement, a declaration of non-infringement (s.105) and relief against groundless threats (s.106). Proviso: where the defendant makes a counter-claim for revocation of the patent, the suit together with the counter-claim is transferred to the High Court for decision.
Amendments to know
Section 104 is printed in its original form with no footnote. The words "High Court" in the proviso are the current text; no reference to the Appellate Board appears, and the Tribunals Reforms Act, 2021 and the Jan Vishwas (Amendment of Provisions) Act, 2023 did not change this section. Section 104 opens Chapter XVIII, headed "Suits concerning infringement of patents". Our existing guide on patent infringement suit jurisdiction and process gives a practical overview of the forum.
The text
"No suit for a declaration under section 105 or for any relief under section 106 or for infringement of a patent shall be instituted in any court inferior to a district court having jurisdiction to try the suit:
Provided that where a counter-claim for revocation of the patent is made by the defendant, the suit, along with the counter-claim, shall be transferred to the High Court for decision."
Reading the main rule
| Suit | Section | Court |
|---|---|---|
| Declaration that use does not or would not infringe | 105 | Not inferior to a district court having jurisdiction |
| Relief against groundless threats (declaration, injunction, damages) | 106 | Not inferior to a district court having jurisdiction |
| Suit for infringement of a patent | General (see section 108 for reliefs) | Not inferior to a district court having jurisdiction |
The wording is a floor, not a ceiling. It says the suit cannot be filed "in any court inferior to a district court having jurisdiction to try the suit". A court of that rank or higher can hear it. The text does not say that a High Court cannot hear an infringement suit directly; it speaks only of courts "inferior to a district court".
Section 104 does not itself define "district court having jurisdiction". Which district court has jurisdiction depends on the general law on territorial jurisdiction. The Act's definition of "district court" in section 2 is covered in our article on the section 2 definitions. Section 104 contains no special rule that adds the plaintiff's place of residence or business as a forum; the text has no such words.
The proviso: counter-claim for revocation
"Where a counter-claim for revocation of the patent is made by the defendant, the suit, along with the counter-claim, shall be transferred to the High Court for decision."
- Trigger: the defendant makes a counter-claim for revocation of the patent. A defence on the same grounds under section 107 is different; see our article on section 107. Section 107(1) lets every ground of revocation under section 64 be used as a defence, but the proviso to section 104 is triggered by a counter-claim for revocation.
- Effect: the whole suit, "along with the counter-claim", goes to the High Court. The district court does not keep the infringement part and send the revocation part to the High Court.
- "Shall": the transfer is mandatory.
- Why it matters: revocation proceedings are before the High Court (see section 64 and our post on revocation grounds under section 64). The proviso keeps infringement and validity together.
The text does not say who makes the transfer, within what time, or in what manner; the rules of the courts govern those details.
Practical flow
- Plaintiff files a suit for infringement (or a section 105 or section 106 suit) in a district court having jurisdiction, or in a court above it that has jurisdiction.
- Defendant replies. It may defend under section 107, deny infringement and, if it wishes, make a counter-claim for revocation.
- If a counter-claim for revocation is made, the suit and the counter-claim are transferred to the High Court and decided there.
- If there is no such counter-claim, the suit stays with the court in which it was filed.
Illustration (invented)
Dhruv Engineering Ltd., based in one State, holds a patent for a crane brake. It sues Atlas Cranes Pvt. Ltd. for infringement in the district court having jurisdiction over Atlas's factory. It cannot file in a court lower than a district court.
Atlas replies that the patent is invalid and makes a counter-claim for revocation of the patent. Under the proviso, the suit and the counter-claim are transferred to the High Court for decision. The High Court then decides infringement and revocation together.
If instead Atlas had only pleaded invalidity as a defence under section 107(1), without a counter-claim, the proviso would not by its terms apply. That is a point for the lawyers in the case to check against the pleadings.
What the section does not say
- It does not give territorial rules; the general law decides which district court has jurisdiction.
- It does not provide who makes the transfer, a time limit or the form of the counter-claim.
- It does not say what happens to interim relief on transfer.
- It does not say whether a revocation counter-claim can be made by a defendant in a section 105 or 106 suit.
- It gives no appeal route; appeals are not covered by this section.
Need help choosing the right court?
The wrong forum wastes time and invites a transfer. Our legal dispute resolution team can assess your suit, plan for a counter-claim for revocation and prepare pleadings that fit the forum.
Key takeaways
- Infringement suits, section 105 declaration suits and section 106 groundless threat suits cannot be filed in any court inferior to a district court having jurisdiction.
- If the defendant counter-claims for revocation, the suit and the counter-claim go to the High Court.
- Section 104 does not set territorial rules; the general law applies.
- A plain defence of invalidity under section 107 is distinct from a counter-claim for revocation.
Read next
- Section 104A: burden of proof in suits concerning infringement
- Section 107: defences in suit for infringement
- Patent infringement: what constitutes it and how to sue
- Defences in patent infringement suits
Disclaimer: Based on the Patents Act, 1970 as amended up to the Jan Vishwas (Amendment of Provisions) Act, 2023, as consulted on 1 October 2026. Forms, fees and time limits under the Patents Rules, 2003 change from time to time and are not covered here. This article is general information, not legal advice; check the official text before acting.