Section 107 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 107 gives a defendant two defences in a suit for infringement of a patent. Under sub-section (1), every ground on which the patent may be revoked under section 64 is available as a ground for defence. Under sub-section (2), where the suit is for making, using or importing a machine, apparatus or article, using a process, or importing, using or distributing a medicine or drug, it is a defence that the act was in accordance with one or more of the conditions specified in section 47. If you are served with an infringement suit, our legal dispute resolution team can build your defence.
s.107(1): in any infringement suit, every ground of revocation under section 64 is available as a defence, so the defendant can say the patent is invalid on those grounds. s.107(2): in a suit for infringement by making, using or importing a machine, apparatus or article, using a process, or importing, using or distributing a medicine or drug, it is a defence that the act was in accordance with the conditions in section 47 (Government use, experiment or research, Government import of medicines).
Amendments to know
Section 107 is printed in its original form with no footnote. The Tribunals Reforms Act, 2021 and the Jan Vishwas (Amendment of Provisions) Act, 2023 did not change it. Section 107A (acts not considered infringement) follows immediately in the Act and is covered in a later article of this series. Section 64 and section 47 are the two sections it imports.
Sub-section (1): section 64 grounds as defences
"In any suit for infringement of a patent, every ground on which it may be revoked under section 64 shall be available as a ground for defence."
The effect is that the defendant need not file a separate revocation petition to raise invalidity. He can plead the same grounds in his defence. If instead he makes a counter-claim for revocation, the suit and the counter-claim are transferred to the High Court under the proviso to section 104; see our article on section 104. A plain defence under section 107(1) is a different step from a counter-claim.
What the grounds in section 64(1) cover
Section 64(1) lists grounds (a) to (q). In outline they include the following groups. This is a summary; the full list is in our post on revocation grounds under section 64.
| Group | Examples from the text of section 64(1) |
|---|---|
| Entitlement | The patent was granted on the application of a person not entitled to apply (b); obtained wrongfully in contravention of the petitioner's rights (c); obtained on a false suggestion or representation (j) |
| Priority and novelty | Claimed in a valid earlier-priority claim of another Indian patent (a); not new having regard to what was publicly known, used or published (e); secretly used in India before the priority date, subject to section 64(3) (l); anticipated by knowledge within a local or indigenous community (q) |
| Invention and patentability | Not an invention within the meaning of the Act (d); obvious or no inventive step (f); not useful (g); not patentable under the Act (k) |
| Specification | Insufficient description of the invention and method, or failure to disclose the method known to the applicant (h); scope of a claim not sufficiently and clearly defined, or not fairly based on the matter disclosed (i); failure to disclose, or wrong mention of, the source or geographical origin of biological material (p) |
| Conduct of the applicant | Failure to disclose information required by section 8 or furnishing information known to be false in a material particular (m); contravening a secrecy direction under section 35 or applying for a patent outside India in contravention of section 39 (n); leave to amend under section 57 or 58 obtained by fraud (o) |
Section 64(2) adds rules for grounds (e) and (f): no account is taken of a personal document, secret trial or secret use, and importation of a product made abroad by a patented process counts as knowledge or use in India on the date of importation, except where the importation was for reasonable trial or experiment only. Section 64(3) excludes certain uses from ground (l). The text of section 107(1) does not repeat these; they come with the ground.
Drafting point: the paraphrases above are summaries, not quotations of section 64.
Sub-section (2): the section 47 conditions
"In any suit for infringement of a patent by the making, using or importation of any machine, apparatus or other article or by the using of any process or by the importation, use or distribution of any medicine or drug, it shall be a ground for defence that such making, using, importation or distribution is in accordance with any one or more of the conditions specified in section 47."
Section 47 says that the grant of a patent is subject to four conditions. In the words of the text:
| Section 47 | Condition |
|---|---|
| (1) | A machine, apparatus or article in respect of which the patent is granted, or an article made by using the patented process, may be imported or made by or on behalf of the Government merely for its own use |
| (2) | A patented process may be used by or on behalf of the Government merely for its own use |
| (3) | Any machine, apparatus or article, or an article made by the patented process, may be made or used, and any patented process may be used, by any person merely for experiment or research, including the imparting of instructions to pupils |
| (4) | For a patent in respect of a medicine or drug, the medicine or drug may be imported by the Government merely for its own use or for distribution in a Government-maintained or notified dispensary, hospital or medical institution |
So a defendant who imported or made a patented article on behalf of the Government merely for its Government's own use, or who used a patented process merely for experiment or research may rely on sub-section (2). The word "merely" appears in each condition; use beyond that purpose is outside the defence. Our article on section 47 explains the conditions fully.
The sub-section lists the acts it covers: making, using or importation of a machine, apparatus or article; using a process; and importation, use or distribution of a medicine or drug. A defendant whose act does not fall in these classes cannot use sub-section (2).
Illustration (invented)
Nova Chemicals Ltd. sues Quark Labs Pvt. Ltd. for infringing a patent on a catalyst. Quark pleads under section 107(1) that the claimed catalyst was published in a research journal before the priority date, so the invention is not new (a ground in section 64(1)(e)), and that the specification does not sufficiently describe the method of making it (a ground in section 64(1)(h)).
In a second suit, Nova sues a university lab for making the catalyst. The lab shows that it made small quantities merely for experiment and research and used them to teach students. Under section 107(2), read with section 47(3), that is a defence. If the lab had sold the catalyst commercially, the word "merely" would not protect it.
What the section does not say
- It does not say which party must raise the defences or when; the pleading rules of the court apply.
- It does not explain how a defence under section 107(1) interacts with a later revocation proceeding.
- It does not list defences outside sections 64 and 47; other defences, such as those in section 107A, are separate.
- It does not give a standard of proof.
- No case examples are given here.
Need help building your defence?
The right defence depends on the claim, the prior art and the purpose of the act. Our legal dispute resolution team can analyse the patent, prepare the section 64 and section 47 defences and decide whether to counter-claim.
Key takeaways
- Every ground of revocation under section 64 can be pleaded as a defence in an infringement suit.
- A separate defence applies where the act was in accordance with the section 47 conditions: Government own use, experiment or research, and Government import of medicines.
- A defence is different from a counter-claim for revocation, which sends the suit to the High Court.
- The word "merely" limits the section 47 conditions.
Read next
- Section 107A: acts not considered infringement
- Section 108: reliefs in suits for infringement
- Sections 105 and 106: declaration of non-infringement and groundless threats
- 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.