Power of court to make declaration as to non-infringement
Section 105 of the Patents Act, 1970 deals with power of court to make declaration as to non-infringement. Notwithstanding anything contained in section 34 of the Specific Relief Act, 1963 (47 of 1963), any person may institute a suit for a declaration that the use by him of any process, or the making, use or sale of any article by him does not, or would not, constitute an infringement of a claim of a pa The Act came into force on 01 Apr 1978.
(1) Notwithstanding anything contained in section 34 of the Specific Relief Act, 1963 (47 of 1963), any person may institute a suit for a declaration that the use by him of any process, or the making, use or sale of any article by him does not, or would not, constitute an infringement of a claim of a patent against the patentee or the holder of an exclusive licence under the patent, notwithstanding that no assertion to the contrary has been made by the patentee or the licensee, if it is shown--
(a) that the plaintiff has applied in writing to the patentee or exclusive licensee for a written acknowledgment to the effect of the declaration claimed and has furnished him with full particulars in writing of the process or article in question; and
(b) that the patentee or licensee has refused or neglected to give such an acknowledgment.
(2) The costs of all parties in a suit for a declaration brought by virtue of this section shall, unless for special reasons the court thinks fit to order otherwise, be paid by the plaintiff.
(3) The validity of a claim of the specification of a patent shall not be called in question in a suit for a declaration brought by virtue of this section, and accordingly the making or refusal of such a declaration in the case of a patent shall not be deemed to imply that the patent is valid or invalid.
(4) A suit for a declaration may be brought by virtue of this section at any time 1[after the publication of grant of a patent], and references in this section to the patentee shall be construed accordingly.
Section 105, The Patents Act, 1970 (Act 39 of 1970).
Cross-references
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Questions about Section 105
What does Section 105 of the Patents Act deal with?
Section 105 of the Patents Act is headed "Power of court to make declaration as to non-infringement". Notwithstanding anything contained in section 34 of the Specific Relief Act, 1963 (47 of 1963), any person may institute a suit for a declaration that the use by him of any process, or the making, use or sale of any article by him does not, or would not, constitute an infringement of a claim of a pa
How do I find court cases under Section 105 of the Patents Act?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: Patents Act 105, section 105 Patents Act, section 105 of the Patents Act. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome.
What should I read with Section 105 of the Patents Act, and has it changed?
Its own text turns on Specific Relief Act 34 (Discretion of court as to declaration of status or right), so none of them can safely be read on its own. 1 other provision in this corpus refers back to it.
When did Section 105 of the Patents Act come into force?
Section 105 of the Patents Act, cited as Patents Act 105, came into force on 01 Apr 1978, having been enacted on 19 Sep 1970. It is in force as at the date shown on this page.
Other sections of this Act
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Text as in force on 16 Oct 2026. This page is not a substitute for legal advice.