6.6.2 Forum and locus standi to initiate infringement actions
A patent enforcement action under Section 104 of the Patents Act, 1970, can be initiated before a district court or higher. The court will try a patent suit as a commercial suit under the Commercial Courts Act, 2015.132 This also applies to a suit seeking a declaration of noninfringement.133 However, if a defendant in an infringement action counterclaims the patent’s invalidity, the suit and the counterclaim are automatically transferred to the High Court for further adjudication.134 A declaratory suit for noninfringement cannot question the patent’s validity.135The registered owner of the patent, or the assignee thereof, is entitled to sue for infringement. Section 109 of the Patents Act, 1970, provides that an exclusive licensee may sue for patent infringement but must implead the patent’s registered owner as a defendant. Under Section 110 of the Act, a person who has been granted a compulsory license may also sue for patent infringement if, upon notification of infringement to the patentee, the patentee fails to take action within two months.