Section 104: Where a Patent Case Goes and What a Revocation Counterclaim Does

Explainer · Patent Litigation

Updated for 2026 · Claw Editorial

A patent owner who files an infringement suit in the wrong court can lose months, and a defendant who files a revocation counterclaim in the right way can move the whole case to a different court. Section 104 of the Patents Act, 1970 settles both questions. It says that no patent infringement suit can be filed below the District Court, and that when the defendant counterclaims for revocation, the suit travels to the High Court. This page explains both limbs in plain words, what they mean in practice, and how to keep track of the case once it moves. Last verified October 2026.

01Why the forum question matters in a patent case

In a patent dispute, the choice of court is a strategic decision, not a formality. The same case can be heard by a District Court or by a High Court, and the two behave very differently.

Patent cases are technical

An infringement suit asks the court to read the claims of a patent and compare them with the defendant’s product or process. That needs technical understanding. Courts that see patent matters often handle them better, so where the case sits affects how fast and how well it moves.

Validity is usually attacked in return

In most patent suits the defendant does not only deny infringement. It also argues that the patent should never have been granted. That attack on validity is what triggers the second limb of Section 104. A plaintiff who ignores this will be surprised when the suit changes courts.

A wrong forum costs time

A suit filed in a court without jurisdiction may be returned or transferred. Interim relief, such as an injunction, depends on moving quickly. Losing weeks to a forum fight can hurt the patent owner and help the defendant.

Section 104 has two limbs: no patent infringement suit below the District Court, and a revocation counterclaim sends the suit, along with the counterclaim, to the High Court.

02The text of Section 104

Section 104 sits in Chapter XVIII of the Patents Act, 1970, which deals with suits concerning infringement of patents. In substance it reads as follows.

You can read the official text on the IP India page for Section 104. Always check the current text of the Act and its amendments there before you rely on a quotation.

Three kinds of suit are covered. A suit for a declaration of non-infringement under Section 105, a suit for relief against groundless threats of infringement proceedings under Section 106, and a suit for infringement itself. All three follow the same forum rule.

03Limb one: no suit below the District Court

The first limb sets a floor: a patent infringement suit cannot be filed in any court lower than a District Court that has jurisdiction to try it.

In practice this means a civil judge, junior division or senior division, or any court below the District Court level, cannot take up a patent suit. The suit must begin in the District Court, or in a High Court that has original civil jurisdiction.

What “having jurisdiction to try the suit” adds

The District Court must also have ordinary territorial jurisdiction. Section 104 sets only the lowest level. Territorial rules come from the Code of Civil Procedure, for example where the defendant resides or carries on business, or where the cause of action arises.

Commercial courts and IP divisions

Patent disputes are also commercial disputes under the Commercial Courts Act, 2015, so the commercial court structure sits on top of Section 104. Several High Courts now run dedicated IP divisions. The Delhi High Court has an Intellectual Property Division, and it lists patent matters under case type codes such as C.O.(COMM.IPD-PAT).

For how IP suits flow through district and commercial courts more broadly, see our guide on IP cases in district and commercial courts in India.

04Limb two: a revocation counterclaim moves the suit to the High Court

The second limb says that when the defendant counterclaims to revoke the patent, the suit and the counterclaim must go to the High Court for decision.

Why the law works this way

Revocation of a patent is dealt with by the High Court under Section 64 of the Act. Section 64 allows revocation on a petition by an interested person, or on a counterclaim in an infringement suit. Since validity belongs with the High Court, Parliament sent the whole suit there, so one court can decide infringement and validity together.

The whole suit moves, not only the counterclaim

The words are “the suit, along with the counter-claim”. The infringement claim does not stay behind in the District Court. This avoids two courts reaching different views on the same patent.

What triggers the transfer

The trigger is a counterclaim for revocation made by the defendant. A defence that only says the patent is invalid is a different thing from a counterclaim. A plea of invalidity in the written statement is a defence. A counterclaim asks the court for the relief of revocation. Courts have looked at how these two interact, so a careful reading of the pleadings matters.

When it can be filed

Practice usually treats the counterclaim as part of the defendant’s response to the suit. If you are the defendant, plan it early, together with your written statement and the timelines of the Commercial Courts Act.

05A worked example

Take an invented example, not a real case. A company in Pune owns a patent for a pump valve. It sues a manufacturer in the District Court at Pune for infringement. This is correct under limb one, since a District Court is the lowest permitted forum.

The manufacturer files its written statement denying infringement. It also files a counterclaim asking that the patent be revoked as obvious and anticipated by earlier publications. Under the proviso, the suit and the counterclaim now go to the High Court. The High Court then hears infringement and validity as one dispute.

This table is a simple summary and not a substitute for reading the Act or taking advice.

06Common mistakes with Section 104

• Filing below the District Court. A suit in a court of lower rank is outside Section 104 and will not stand.
• Assuming the suit stays in the District Court. Once a revocation counterclaim is made, the suit and counterclaim go to the High Court.
• Mixing up a defence and a counterclaim. Only a counterclaim for revocation fits the proviso.
• Using trade mark rules for a patent. Trade mark and copyright suits have their own place-of-suing provisions. Patents do not follow them. For the trade mark side of this question, see Sections 103 and 104 of the Trade Marks Act and FIR quashing, which is a different statute.
• Forgetting the file moves. After transfer, the case number, bench and listing change. Missing the new listing date is the practical risk.

07Tracking the case after it transfers

The hardest practical part of a Section 104 transfer is not the law. It is keeping up with a case that has a new court, a new number and a new listing pattern.

A patent owner or defendant should record the original District Court number, the transferred High Court number and every order that records the transfer. They should also watch the IP division cause list, since dedicated IP benches list matters on their own schedule.

If you manage a portfolio of patent and other IP disputes, a tracking tool saves you from checking each court website by hand. Our guide to IP litigation tracking software in India compares the main options, and says where each one is strong and where it is not.

08Where Claw fits

Claw is an all-in-one legaltech platform for Indian advocates, law firms, and corporate legal teams, combining AI-based case search, an AI legal assistant (Legal GPT), case management, and compliance automation across all Indian courts and tribunals.

The practical pain of a Section 104 transfer is keeping up with a case that has a new court, number and listing. Claw tracks cases, orders and hearings across 9,102 courts, benches and forums, with 30 crore+ judgments and results under 5 seconds, so you can hold the District Court and High Court records together and follow a transferred patent suit by party or advocate name. Supreme Court coverage runs from 1950 and High Court coverage from 1990, and Claw does not use customer documents to train AI models.

Create a FREE Claw account to track a patent suit through transfer by party or advocate name. To search the wider body of law, see case search across Indian courts.

09Sources and further reading

Check every statutory point against the primary source:

• Section 104, Patents Act, 1970: ipindia.gov.in
• Judgments and case law: indiankanoon.org
• Patent Office portal: ipindia.gov.in
• Claw: clawlaw.in

This page is general information, last verified October 2026, and is not legal advice. Statutes and court rules change, so confirm the current text before you rely on it.

10Frequently asked questions