Section 108 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 108 says what a court may give a patentee who wins an infringement suit. Sub-section (1) names an injunction and, at the plaintiff's option, either damages or an account of profits. Sub-section (2), added in 2003, allows the court to order seizure, forfeiture or destruction of infringing goods and of materials and implements whose predominant use is in making them, without any compensation. If you hold a patent and are weighing a suit, our legal dispute resolution team can help you plan the relief to ask for.
s.108(1): the reliefs "include" an injunction (on terms the court thinks fit) and, at the option of the plaintiff, either damages or an account of profits. s.108(2): the court may also order seizure, forfeiture or destruction of infringing goods and of materials and implements the predominant use of which is in creating them, without payment of compensation. The list is not closed, because the word is "include". Section 111 limits damages and account of profits in certain cases.
Amendments to know
The Patents (Amendment) Act, 2002 renumbered the original section as sub-section (1) and inserted sub-section (2), both with effect from 20 May 2003. The Tribunals Reforms Act, 2021 and the Jan Vishwas (Amendment of Provisions) Act, 2023 did not change section 108.
Sub-section (1): injunction, damages or account of profits
The text reads: "The reliefs which a court may grant in any suit for infringement include an injunction (subject to such terms, if any, as the court thinks fit) and, at the option of the plaintiff, either damages or an account of profits."
| Relief | What the text says |
|---|---|
| Injunction | May be granted, "subject to such terms, if any, as the court thinks fit" |
| Damages | One of two money reliefs; the plaintiff chooses |
| Account of profits | The other money relief; the plaintiff chooses |
| Choice | "at the option of the plaintiff, either damages or an account of profits" |
Points that follow from the wording:
- The word "include" means the list is not exhaustive. The section does not say what other reliefs a court may give, and it does not prohibit them.
- The injunction can carry terms. The Act does not list the terms; the court decides them.
- The money relief is "either" damages "or" an account of profits. The text does not say that a plaintiff can have both.
- The text does not say how damages are measured, how an account is taken, or whether interest or costs follow. Those are matters of the general law of suits and the court's procedure, not of this section.
- Interim relief is not mentioned in section 108. The section speaks of relief the court "may grant in any suit".
Sub-section (2): seizure, forfeiture, destruction
Sub-section (2) reads: "The court may also order that the goods which are found to be infringing and materials and implement, the predominant use of which is in the creation of infringing goods shall be seized, forfeited or destroyed, as the court deems fit under the circumstances of the case without payment of any compensation."
Notes on the clause:
- Two classes of items are named: goods "found to be infringing", and "materials and implement" (the printed word is the singular "implement") the predominant use of which is in the creation of infringing goods. This is a drafting slip in the printed text; the sense is materials and implements.
- The court chooses among three orders: seized, forfeited or destroyed, "as the court deems fit under the circumstances of the case".
- The order is "without payment of any compensation" to the owner of the goods.
- The test for materials and implements is "predominant use". A general-purpose machine that is mostly used for other things falls outside the words, while a mould made for only one infringing article falls within them.
- The word "found" means the court must find the goods infringing before it passes the order.
The text does not say who carries out the seizure, how storage costs are met, or what happens to innocent third parties holding the goods.
Limits on money relief
Section 108 states the reliefs in general. A defendant who proves that at the date of infringement he was not aware and had no reasonable grounds for believing that the patent existed is protected under section 111 from damages or an account of profits, while sub-section (4) of that section keeps the court's power to grant an injunction. If only some claims are valid, relief is governed by section 114. Section 108 should therefore be read with those provisions.
Illustration (invented)
Meridian Tools Pvt. Ltd. holds a patent on a self-locking pipe coupling. Orbit Fittings Pvt. Ltd. makes and sells couplings that fall within claim 1. Meridian sues. It asks for an injunction against further sale and, because Orbit's profit on the couplings is easier to prove than Meridian's own lost sales, it opts for an account of profits rather than damages. It also asks the court to order seizure of the unsold couplings and of a die cast used only for making them. Under sub-section (2), if the court finds the couplings infringing and the die's predominant use is in creating them, it may order seizure, forfeiture or destruction without compensation to Orbit.
In a second case, a patentee asks for both damages and an account of profits. The text of sub-section (1) says "either ... or"; the claim for both is something to take advice on, as the text offers a choice.
Practical steps before a suit
- Collect evidence of the infringing goods and where they are held, so that the court can describe them in an order under sub-section (2).
- Decide early whether damages or an account of profits suits your evidence, because the option belongs to the plaintiff.
- Check section 111 against the facts: was the defendant aware of the patent? The Explanation to section 111(1) says that the word "patent" or "patented" on an article does not by itself prove awareness unless the patent number accompanies it.
- Check where to file: the court is decided by section 104.
Need help planning an infringement suit?
Choosing between damages and an account of profits, framing the injunction and describing goods for seizure all depend on the evidence you hold. Our legal dispute resolution team can review the patent, the infringing goods and the defendant's position and advise on the reliefs to seek.
Key takeaways
- Section 108(1) names injunction and, at the plaintiff's option, either damages or an account of profits; the list "include" is not closed.
- Section 108(2), in force from 20 May 2003, allows seizure, forfeiture or destruction of infringing goods and of materials and implements used predominantly to make them, without compensation.
- Section 111 can bar damages and account of profits against an innocent infringer but leaves the injunction untouched.
- The section gives no formula for damages and no procedure for seizure.
Read next
- Section 107A: acts not considered infringement
- Sections 109 to 111: exclusive licensee, section 84 licensee and restriction on damages
- Patent infringement: what constitutes and how to sue
- Patent infringement suit: jurisdiction and process
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.