Patent

Date

August 4, 2022

Court

Right

Case

2021 (Gyo-Ke) 10090

Intellectual Property High
Court, First Division

number- A case in which a request for correction in a trial for patent invalidation related to
an invention titled "Spray product and spray method" was not found to aim to "restrict
the claims" (Article 134-2, proviso to paragraph (1), item (i) of the Patent Act) andthe JPO Decision was rescinded since there is an error in its determination concerning
the correction requirements.
Case type: Rescission of Trial Decision to Maintain
Results: Granted
References: Article 134-2, proviso to paragraph (1), item (i) of the Patent Act
Related rights, etc.: Patent Application No. 2018-509670
Trial decision: Invalidation Trial No. 2020-800014
Summary of the Judgment
1. The Plaintiff requested a trial for invalidation of the patent in question (hereinafterreferred to as the "Patent") related to an invention titled "Spray product and spraymethod," for which the Defendant has a patent right. The Defendant requested
corrections of the Patent (hereinafter referred to as the "Correction"). The Japan Patent
Office (hereinafter referred to as the "JPO") approved the Correction and thendetermined that "the request for the trial in question (hereinafter referred to as the"Trial") is groundless."
2. In this judgment, the court determined as summarized below that it is not found that
corrected matters 1 and 2 in the Correction do not aim to "restrict the claims" (Article134-2, proviso to paragraph (1), item (i) of the Patent Act); there is an error in thedetermination concerning correction requirements by the decision in question made by
the JPO (hereinafter referred to as the "JPO Decision"); and the court rescinded the JPO
Decision.
(1) It is found that corrected matters 1 and 2 added the statements related to actions of"having decreased mucous membrane irritation" or "decreasing mucous membrane
irritation" to the statements of "噴射製品[spray product]" as defined in Claim 1 before
the Correction and " 噴 射 方 法 [spray method]" as defined in Claim 3 before theCorrection respectively.
In other words, according to the statements related to "reduction of mucous
membrane irritation" in the descriptions in question (hereinafter referred to as thei"Descriptions"), it is found that the Descriptions disclosed the following: the functionand effect of "reduction of mucous membrane irritation" are shown by the structure"wherein the particle diameter ratio (r 30 / r15) of 50% average particle diameter r 15 of
the sprayed insect repellent composition at a distance of 15cm from the spray nozzle
and 50% average particle diameter r 30 of the sprayed insect repellent composition at a
distance of 30cm from the spray nozzle is adjusted to 0.6 or higher" as defined in Claim
1 before the Correction or the structure "wherein the particle diameter ratio (r 30 / r15) of
50% average particle diameter r 15 at a distance of 15cm from the spray nozzle and 50%
average particle diameter r 30 at a distance of 30cm from the spray nozzle is 0.6 orhigher" as defined in Claim 3 before the Correction. On the other hand, the Descriptions
have no statements or suggestions that even in cases where the structures as defined in
Claims 1 and 3 before the Correction were used, there are cases where the function andeffect of "reduction of mucous membrane irritation" are not shown.
Then, the statements related to the actions of "having decreased mucous membrane
irritation" or "decreasing mucous membrane irritation" that were added by corrected
matters 1 and 2 only stated the function and effect shown by the structure as defined in
Claims 1 and 3 before the Correction. Therefore, it cannot be found th at corrected
matters 1 and 2 narrowed down the claims related to the inventions as defined in Claims
1 and 3 before the Correction.
(2) Consequently, it cannot be found that corrected matters 1 and 2 aim to "restrict theclaims" (Article 134-2, proviso to paragraph (1), item (i) of the Patent Act).
The JPO Decision contains an error in the determination concerning the correction
requirements of the Correction and this error in the determination was caused by error
in finding of the summary of the invention related to Claims 1 through 3 of the claimsof the Patent, and therefore, the JPO Decision should be rescinded.

ii

Judgment rendered on August 4, 2022
2021 (Gyo-Ke) 10090, Case of seeking rescission of the JPO decision
Date of conclusion of oral argument: May 26, 2022
Judgment
Plaintiff: Fumakilla Limited

Defendant: Earth Corporation

Main text
1. The decision made by the Japan Patent Office (JPO) on June 21, 2021, concerning
the case of Invalidation Trial No. 2020-800014, shall be rescinded.
2. The Defendant shall bear the court costs.
Facts and reasonsNo. 1 Claim
Same as paragraph 1 of the main text.
No. 2 Outline of the case
1. Outline of procedures at the JPO(1) The Defendant filed a patent application for an invention titled "Spray product andspray method" for which the international application date was March 31, 2017 (Patent
Application No. 2018-509670; priority date: March 31, 2016 (hereinafter referred to as"Priority Date 1") and November 25, 2016 (hereinafter referred to as "Priority Date 2");priority country: Japan; hereinafter, the application is referred to as the "Application")and obtained a patent right registration (Patent No. 6539407; number of claims: 4;
hereinafter the patent is referred to as the "Patent") on June 14, 2019 (Exhibits Ko 14
and 61).
(2) The Plaintiff filed a request on February 14, 2020, for a trial for patent invalidation(Invalidation Trial No. 2020-800014; hereinafter the trial is referred to as the "Trial")
related to the patent for Claims 1 through 3 of the Patent (Exhibit Ko 44).
The Defendant requested corrections of Claims 1 through 3 in the claims of the
Patent as of June 29, 2020 (hereinafter referred to as the "Correction") (Exhibit Ko 46).
The JPO approved the Correction and then made the decision that "the request for
the Trial is groundless" (hereinafter referred to as the "JPO Decision") on June 21, 2021.
A certified copy of the decision was served to the Plaintiff on July 1, 2021.
1

(3) The Plaintiff filed this lawsuit to seek rescission of the JPO Decision on July 30,
2021.
2. Statements of the claims(1) At the time of patent registration (Before the Correction)
The statements in Claims 1 through 3 in the claims when the Patent was registeredare as stated below (Exhibit Ko 14).
[Claim 1]
A spray product filled with an insect repellent composition containing an insect
repellent component and formed with a spray nozzle for spraying the insect repellent
composition (except in the case of containing a propellant);
wherein the insect repellent composition contains 10% by mass or more of avolatilization suppressive component (except in the case where the volatilization
suppressive component is glycerin) that has a vapor pressure of 2.5 kPa or lower at
20°C in the insect repellent composition in order to suppress volatilization after
spraying the insect repellent composition;
wherein the insect repellent component is at least one component selected from t hegroup consisting of 3-(N-n-butyl-N-acetyl) aminopropionic acid ethylester, pmenthane-3,8-diol, and 1-metylpropyl 2-(2-hydroxylethyl)-1-piperidine carboxylate;wherein the particle diameter ratio (r 30 / r15) of 50% average particle diameter r 15 of
the sprayed insect repellent composition at a distance of 15cm from the spray nozzle
and 50% average particle diameter r 30 of the sprayed insect repellent composition at a
distance of 30cm from the spray nozzle is adjusted to 0.6 or higher;
and wherein 50% average particle diameter r 30 of the sprayed insect repellent
composition at a distance of 30cm from the spray nozzle is adjusted to 50μm or larger.
[Claim 2]
The spray product is the spray product stated in Claim 1, which is a pump productcomprised of a pump container filled with the insect repellent composition and an
actuator attached to the pump container and formed with the spray nozzle.
[Claim 3]
A spray method to spray an insect repellent composition containing an insect
repellent component using a spray product (except in the case of containing apropellant) filled with the insect repellent composition and formed with a spray nozzle
for spraying the insect repellent composition;
wherein the insect repellent composition contains 10% by mass or more of avolatilization suppressive component (except in the case where the volatilization
suppressive component is glycerin) that has a vapor pressure of 2.5 kPa or lower at2

20°C in the insect repellent composition in order to suppress volatilizatio n after
spraying the insect repellent composition;
wherein the insect repellent component is at least one component selected from thegroup consisting of 3-(N-n-butyl-N-acetyl) aminopropionic acid ethylester, pmenthane-3,8-diol, and 1-metylpropyl 2-(2-hydroxylethyl)-1-piperidine carboxylate;
and wherein the particle diameter ratio (r 30 / r15) of 50% average particle diameter
r15 at a distance of 15cm from the spray nozzle and 50% average particle diameter r 30
at a distance of 30cm from the spray nozzle is 0.6 or higher and 50% average particle
diameter r30 of the sprayed insect repellent composition at a distance of 30cm from thespray nozzle is 50μm or larger.
(2) After the Correction
The Claims 1 through 3 in the claims of the Patent after the Correction are stated asfollows (hereinafter the invention related to Claim 1 is referred to as "Invention 1," etc.
based on the Claim number and Inventions 1 through 3 are collectively referred to as
the "Invention" in some cases; the underlined parts are the parts corrected by theCorrection; Exhibit Ko 46).
[Claim 1]
A spray product filled with an insect repellent composition containing an insect
repellent component and formed with a spray nozzle for spraying the insect repellent
composition (except in the case of containing a propellant);
wherein the insect repellent composition contains 10% by mass or more of avolatilization suppressive component (except in the case where the volatilization
suppressive component is glycerin) that has a vapor pressure of 2.5 kPa or lower at
20°C in the insect repellent composition in order to suppress volatilization after
spraying the insect repellent composition;
wherein the insect repellent component is at least one component selected from thegroup consisting of 3-(N-n-butyl-N-acetyl) aminopropionic acid ethylester, pmenthane-3,8-diol, and 1-metylpropyl 2-(2-hydroxylethyl)-1-piperidine carboxylate;wherein the particle diameter ratio (r 30 / r15) of 50% average particle diameter r 15 of
the sprayed insect repellent composition at a distance of 15cm from the spray nozzle
and 50% average particle diameter r 30 of the sprayed insect repellent composition at a
distance of 30cm from the spray nozzle is adjusted to 0.6 or higher;
wherein 50% average particle diameter r 30 of the sprayed insect repellent
composition at a distance of 30cm from the spray nozzle is adjusted to 50μm or larger;
and thereby having decreased mucous membrane irritation.
[Claim 2]
3

The spray product is the spray product stated in Claim 1, which is a pump productcomprising a pump container filled with the insect repellent composition and an
actuator to which the pump container is attached and on which the spray nozzle isformed.
[Claim 3]
A spray method to spray an insect repellent composition containing an insect
repellent component using a spray product (except in the case of containing apropellant) filled with the insect repellent composition and formed with a spray nozzle
for spraying the insect repellent composition;
wherein the insect repellent composition contains 10% by mass or more of avolatilization suppressive component (except in the case where the volatilization
suppressive component is glycerin) that has a vapor pressure of 2.5 kPa or lower at
20°C in the insect repellent composition in order to suppress volatilization after
spraying the insect repellent composition;
wherein the insect repellent component is at least one component selected from thegroup consisting of 3-(N-n-butyl-N-acetyl) aminopropionic acid ethylester, pmenthane-3,8-diol, and 1-metylpropyl 2-(2-hydroxylethyl)-1-piperidine carboxylate;
and a spray method to spray the insect repellent composition so that the particle
diameter ratio (r 30 / r15) of 50% average particle diameter r 15 at a distance of 15cm fromthe spray nozzle and 50% average particle diameter r 30 at a distance of 30cm from thespray nozzle is 0.6 or higher and 50% average particle diameter r 30 of the sprayed insect
repellent composition at a distance of 30cm from the spray nozzle is 50μm or larger;
andthereby decreasing mucous membrane irritation.
3. Summary of the grounds for the JPO Decision
The grounds for the JPO Decision are as stated in the attached written decision(copy). The JPO approved the Correction and then decided concerning Inventions 1
through 3 that none of the following grounds alleged by the Plaintiff had grounds:
Grounds for Invalidation 1 (lack of novelty for which an invention related to a pumpproduct named " 服 に ス プ レ ー ス キ ン ベ ー プ ミ ス ト ナ チ ュ ラ ル Ｕ Ｖ カ ッ ト[Spray on cloth, Skin Vape Mist Natural UV Cut]" (Manufacturing lot No. 8F2C1A;
packaging lot No. 8G2KA; Exhibits Ko 1 and 5) that was publicly known to be worked
before Priority Date 1 (hereinafter referred to as "Exhibit Ko 1 Product") se rves as theprimary prior art); Grounds for Invalidation 2 (lack of novelty for which an invention
related to a pump product named "天使のスキンベープミストプレミアム２００ｍ
Ｌ[Angel Skin Vape Mist Premium 200mL]" (Manufacturing lot No. 8F881A; Exhibits4

Ko 5 and 8) that was publicly known to be worked before Priority Date 2 (hereinafterreferred to as "Exhibit Ko 8 Product") serves as the primary prior art); Grounds forInvalidation 3 (violation of enablement requirements); and Grounds for Invalidation 4(violation of clarity requirements).
From among the above, the summary of Grounds for Invalidation 1 is as statedbelow.
(1) "Publicly Worked Invention 1-1" and "Publicly Worked Invention 1-3"
The JPO Decision found that samples of Exhibit Ko 1 Product were transferred atleast to posters of customer reviews for "Ａｍａｚｏｎ Ｖｉｎｅ 先取りプログラ
ム [Amazon Vine]" before Priority Date 1 and then, found the following "Publicly
Worked Invention 1-1" and "Publicly Worked Invention 1-3" (hereinafter collectively
referred to as "Publicly Worked Invention 1") based on Exhibit Ko Product 1 andstatements in Exhibits Ko 1, 2, and 5.
A. Publicly Worked Invention 1-1
An invention of "A spray product filled with an insect repellent composition
containing an insect repellent component and formed with a spray nozzle for spraying
the insect repellent composition (except in the case of containing a propellant);
wherein the insect repellent composition contains 36.545% by mass of water, forwhich a vapor pressure at 20°C is 2.3366 kPa, in the insect repellent composition;
wherein the insect repellent composition is p-menthane-3,8-diol;
wherein the particle diameter ratio (r 30 / r15) of 50% average particle diameter r 15 of
the sprayed insect repellent composition at a distance of 15cm from the spray nozzle
and 50% average particle diameter r 30 of the sprayed insect repellent composition at a
distance of 30cm from the spray nozzle is 0.80;
wherein 50% average particle diameter r 30 of the sprayed insect repellent
composition at a distance of 30cm from the spray nozzle is 236.27μm; andthe spray product is a pump product comprised of a container filled with the insect
repellent composition and a trigger pump attached to the container and formed with thespray nozzle."
B. Publicly Worked Invention 1-3
An invention of "A spray method to spray an insect repellent composition
containing an insect repellent component using a spray product (except in the case ofcontaining a propellant) filled with the insect repellent composition and formed with aspray nozzle for spraying the insect repellent composition;
wherein the insect repellent composition contains 36.545% by mass of water, forwhich a vapor pressure at 20°C is 2.3366 kPa, in the insect repellent composition;5

wherein the insect repellent composition is p-menthane-3,8-diol;
wherein the particle diameter ratio (r 30 / r15) of 50% average particle diameter r 15 of
the sprayed insect repellent composition at a distance of 15cm from the spray nozzle
and 50% average particle diameter r 30 of the sprayed insect repellent composition at a
distance of 30cm from the spray nozzle is 0.80; andwherein 50% average particle diameter r 30 of the sprayed insect repellent
composition at a distance of 30cm from the spray nozzle is 236.27μm."(2) Common features and differences between Invention 1 and Publicly Worked
Invention 1-1
Common features and differences between Invention 1 and Publicly Worked
Invention 1-1 found by the JPO Decision are stated below.
A. Common features"A spray product filled with an insect repellent composition containing an insect
repellent component and formed with a spray nozzle for spraying the insect repellent
composition (except in the case of containing a propellant);
wherein the insect repellent composition contains 10% by mass or more of acomponent (except glycerin), for which a vapor pressure at 20°C is 2.5 kPa or lower, in
the insect repellent composition;
wherein the insect repellent composition is p-menthane-3,8-diol;
wherein the particle diameter ratio (r30 / r15) of 50% average particle diameter r 15 of
the sprayed insect repellent composition at a distance of 15cm from the spray nozzle
and 50% average particle diameter r 30 of the sprayed insect repellent composition at a
distance of 30cm from the spray nozzle is 0.6 or higher; andwherein 50% average particle diameter r 30 of the sprayed insect repellent
composition at a distance of 30cm from the spray nozzle is 50μm or lager."
B. Differences(Difference 1)
Concerning an insect repellent composition, Invention 1 contains a volatilization
suppressive component in order to suppress volatilization after spraying; on the other
hand, it is not clear whether Publicly Worked Invention 1-1 contains a volatilization
suppressive component.
(Difference 2)
Concerning the spray product, in Invention 1, the particle diameter ratio (r 30 / r15)of 50% average particle diameter r 15 of a sprayed insect repellent composition at a
distance of 15cm from the spray nozzle and 50% average particle diameter r 30 of asprayed insect repellent composition at a distance of 30cm from the spray nozzle is6adjusted to 0.6 or higher and 50% average particle diameter r 30 of a sprayed insect
repellent composition at a distance of 30cm from the spray nozzle is adjusted to 5 0μm
or larger; on the other hand, it is not clear whether Publicly Worked Invention 1 -1 isadjusted in that way or not.
(Difference 3)
Concerning the spray product, in Invention 1, mucous membrane irritation has been
decreased; on the other hand, in Publicly Worked Invention 1-1, it is not clear whether
mucous membrane irritation has been decreased or not.
(3) Common features between Invention 1 and Publicly Worked Invention 1 -1
A. Differences 2 and 3(A) Invention 1 was invented based on the following facts: as a result of study into thecause of mucous membrane irritation in cases where an insect repellent component iscontained in the insect repellent composition, it was found that some of the sprayed
insect repellents do not adhere to the application points, such as skin, hair, etc., butreach a more distant point (e.g., at a distance of 30cm from a spray nozzle) beyond theapplication distance (e.g., at a distance of 15 cm from the spray nozzle) and float; atsuch a distant point, the particle diameter is smaller than the particle diameter at theapplication distance and, as a result, particles that are smaller in size are more easily
aspirated and irritate the mucosa membranes; and therefore, "if the spray product isadjusted in consideration of not only the particle diameter at the application distance,
but also the particle diameter ratio at the point exceeding the application point so thatthe particle diameter ratio at each point becomes the pre-determined value or higher,
even if an insect repellent that tends to irritate mucous membranes is contained, themucous membrane irritation is decreased" ([0006]). If it is a spray product wherein "theparticle diameter ratio (r 30 / r15) of 50% average particle diameter r 15 of a sprayed insect
repellent composition at a distance of 15cm from the spray nozzle and 50% average
particle diameter r 30 of a sprayed insect repellent composition at a distance of 30cm
from the spray nozzle is adjusted to 0.6 or higher and 50% average particle diameter r 30
is adjusted to 50μm or larger," it is identified that "it is a spray product that has
decreased mucous membrane irritation."(B) On the other hand, even if Publicly Worked Invention 1-1 or any of Exhibits Ko 1
through 38 is examined, it is impossible to derive a technical idea that even if an insect
repellent component that tends to irritate mucous membranes is contained, it becomesa spray product that has decreased mucous membrane irritation by focusing on theparticle diameter rate (r 30 / r15) and adjusting the particle diameter rate (r 30 / r15) of asprayed insect repellent composition to 0.6 or higher, and by focusing on the 50%
7average particle diameter r 30 and adjusting 50% average particle diameter r 30 to 50μm
or larger; and it is not found that the technical idea was well-known art at the time ofPriority Date 1.
Therefore, even if Publicly Worked Invention 1-1 contains an insect repellent
component that tends to irritate mucous membranes, it is not found that Publicly
Worked Invention 1-1 was adjusted so that the particle diameter rate (r 30 / r15) is 0.6 orhigher by focusing on the particle diameter rate (r 30 / r15), and 50% average particle
diameter r30 is 50μm or larger by focusing on the 50% average particle diameter r 30 inorder to create a spray product that has decreased mucous membrane irritation. Whenthe particle diameter rate (r 30 / r15) and the 50% average particle diameter r 30 were
measured from the perspective of the technical idea, it was merely found that theparticle diameter rate (r 30 / r15) fell under 0.6 or higher and the 50% average particle
diameter r30 fell under 50μm.
Consequently, it is not found that Publicly Worked Invention 1-1 was recognized asa spray product that has decreased mucous membrane irritation by adjusting the particle
diameter rate (r 30 / r15) to 0.6 or higher and the 50% average particle diameter r 30 to
50μm or larger. It cannot be said that Publicly Worked Invention 1-1 contained such atechnical idea.
Therefore, Differences 2 and 3 are considered to be substantial differences.
B. Difference 1(A) Concerning "a volatilization suppressive component in order to suppress
volatilization after spraying" in Invention 1, the descriptions attached to the appl ication
form of the Application (hereinafter the descriptions are referred to as the"Descriptions"; Exhibit Ko 14) stated as follows: "The insect repellent composition
preferably contains a volatilization suppressive component, for which the vapor
pressure at 20°C is 2.5 kPa or lower in order to suppress volatilization after spraying,in addition to the insect repellent component. This will suppress the volatilization ofsprayed insect repellent composition and it is hard for particle diameter to be decrea sed
in size. The volatilization suppressive component is not specifically limited. For
example, a volatilization suppressive component is ... at least one component selectedfrom the group consisting of water. If said components are contained as volatilization
suppressive components, volatilization of the sprayed insect repellent composition ismore easily suppressed and even if it is sprayed to a range exceeding the applicationsite (e.g., at a distance of 30cm from the spray nozzle), it is hard for the particle diameterto be decreased in size." ([0014]), "... the content of the suppressive volatilization
components is preferred to be 10% by mass or higher of the insect repellent
8composition ... . If the content of the suppressive volatilization components is less than
10% by mass, the spray product may not be fully able to fulfill the effects of containing
the suppressive volatilization components." ([0015]).
Therefore, it is understood that if the insect repellent composition "contains 10% bymass or more of a volatilization suppressive component that has a vapor pressure of 2.5
kPa or lower at 20°C in the insect repellent composition in order to suppress
volatilization after spraying," volatilization of the sprayed insect repellent composition
becomes more easily suppressed, and based on the fact that even if it is sprayed to apoint at a distance of 30cm from the spray nozzle, which is in a range exceeding theapplication site, it is hard for the particle diameter to be decreased in size, Invention 1
states "the insect repellent composition contains 10% by mass or more of avolatilization suppressive component that has a vapor pressure of 2.5 kPa or lower at
20°C in the insect repellent composition in order to suppress volatilization after
spraying" as particulars for identifying the invention.
It is true that Publicly Worked Invention 1-1 contains water. However, since Exhibit
Ko 2, which was examined when finding Publicly Worked Invention 1-1, states thatwater is added as a "solvent," it is different from Invention 1 in terms of the purpose ofadding water, and therefore, it is not found that water was recognized as a volatilization
suppressive component to suppress volatilization after spraying.
(B) In addition, in consideration of the matters as stated in A. above, it is understoodthat the following facts form a unified technical idea: "by containing a volatilization
suppressive component to suppress volatilization after spraying" (particulars for
identifying the invention of Invention 1 related to Difference 1); "by adjusting theparticle diameter rate (r 30 / r15) to 0.6 or higher" and "by adjusting 50% average particle
diameter r30 to 50μm or larger" (particulars for identifying the invention of Invention 1
related to Difference 2); and thereby creating "a spray product that has decreased
mucous membrane irritation" (particulars for identifying the invention of Invention 1
related to Difference 3).
Also from this perspective, it cannot be found that because water is contained in
Publicly Worked Invention 1-1, the following technical idea was recognized: the water
acts as "a volatilization suppressive component to suppress volatilization after
spraying"; "by adjusting the particle diameter rate (r 30 / r15) to 0.6 or higher" and "byadjusting 50% average particle diameter r 30 to 50μm or larger"; and thereby creating "aspray product that has decreased mucous membrane irritation."
In addition, even though examining any of Exhibits Ko 1 through 38, none of them
supports that said technical idea was recognized concerning the fact that water is9contained in Publicly Worked Invention 1-1.
(C) Based on the above, Difference 1 is also considered to be a substantial difference.
C. Summary
Based on the above, Invention 1 is not identical to Publicly Worked Invention 1 -1
and therefore, it is not an invention that was publicly known to be worked before
Priority Date 1.
(4) Invention 2
Invention 2 directly cited Invention 1 and limits it by including a pump container
and actuator. Therefore, Invention 2 also falls under what is stated in (2) and (3) above,and therefore, it is not an invention that was publicly known to be worked before
Priority Date 1 in the same way.
(5) Common features and differences between Invention 3 and Publicly Worked
Invention 1-3
Common features and differences between Invention 3 and Publicly Worked
Invention 1-3 found by the JPO Decision are stated below.
A. Common features"A spray method to spray an insect repellent composition containing an insect
repellent component using a spray product (except in the case of containing apropellant) filled with the insect repellent composition and formed with a spray nozzle
for spraying the insect repellent composition;
wherein the insect repellent composition contains 10% by mass or more of acomponent (except glycerin), for which a vapor pressure at 20°C is 2.5 kPa or lower, in
the insect repellent composition;
wherein the insect repellent composition is p-menthane-3,8-diol; and wherein
particle diameter ratio (r 30 / r15) of 50% average particle diameter r 15 at a distance of
15cm from the spray nozzle and 50% average particle diameter r 30 at a distance of 30cm
from the spray nozzle is 0.6 or higher and 50% average particle diameter r 30 of a sprayed
insect repellent composition at a distance of 30cm from the spray nozzle is 50μm orlarger."B. Differences(Difference 1)
Concerning an insect repellent composition, Invention 3 contains a volatilization
suppressive component in order to suppress volatilization after spraying; on the other
hand, it is not clear whether Publicly Worked Invention 1-3 contains a volatilization
suppressive component.
(Difference 2)
10Concerning the spray method, Invention 3 is a spray method wherein the particle
diameter ratio (r 30 / r15) of 50% average particle diameter r 15 at a distance of 15cm fromthe spray nozzle and 50% average particle diameter r 30 at a distance of 30cm from thespray nozzle is adjusted to 0.6 or higher and 50% average particle diameter r 30 of thesprayed insect repellent composition at a distance of 30cm from the spray nozzle isadjusted to 50μm or larger; on the other hand, it is not clear whether Publicly Worked
Invention 1-3 sprays as stated above.
(Difference 3)
Concerning the spray method, in Invention 3, mucous membrane irritation isdecreased; on the other hand, in Publicly Worked Invention 1-3, it is not clear whether
mucous membrane irritation is decreased or not.
(6) Common features between Invention 3 and Publicly Worked Invention 1-3
Publicly Worked Invention 1-3 was approved based on the fact that the use methodof Publicly Worked Invention 1 was explained in Exhibit Ko 1 that "Please keep a
distance of approximately 10cm from clothes and spray it thoroughly over the cloth."Although Publicly Worked Invention 1-1, which is an invention of an article, andPublicly Worked Invention 1-3, which is an invention of a method, are in different
categories of invention, technical matters identified in both inventions are the same.
Therefore, Differences 1 through 3 between Invention 3 and Publicly Worked Invention
1-3 and Differences 1 through 3 between Invention 1 and Publicly Worked Invention 11 as described in (2) B. above are substantially the same.
Based on the above, the same matters as stated in (3) above apply to Differences 1
through 3 between Invention 3 and Publicly Worked Invention 1-3, and therefore,
Publicly Worked Invention 1-3 is not considered to be an invention of a spray method
wherein the technical idea in Invention 3 was recognized.
Consequently, Invention 3 is not an invention that was publicly known to be worked
before Priority Date 1.
(omitted)
No. 4 Judgment of this court
1. Statement in the Descriptions(1) There are the following statements in the Descriptions (Exhibit Ko 14) (for Tables
1 through 3 that are cited in the following statements, see the attachment).
A. [Technical field][0001]
11

The present invention relates to a spray product and a spray method. Moreparticularly, the present invention relates to a spray product and a spray method that areless irritating to mucous membranes such as the nose and throat of a user when its
content, an insect repellent composition, is sprayed.
[Background art]
[0002]
Conventionally, the insect repellent, containing N,N-diethyl- m-toluamide (Deet),is known. However, Deet cannot be used for infants of less than 6 months old in termsof safety due to skin absorption, and its use frequency is limited for children less than
12 years old. Therefore, an insect repellent combined with 3-(N-n-butyl-N-acetyl)
aminopropionicacid

ethylester,p-menthane-3,8-diol,

1-metylpropyl

2-(2-hydroxylethyl)-1-piperidine carboxylate, and other components instead of Deet is
examined (Patent Documents 1 through 3).
[Problems to be solved by the invention][0004]
However, when the insect repellent containing the insect repellent component
instead of Deet is sprayed as a pump product or aerosol product, the sprayed particles
tend to irritate mucous membranes such as the nose and throat of the user or persons
near the user. As a result, the user, etc. tends to feel a sense of discomfort with his/hermucous membranes or to cough. Incidentally, Deet that has been used has less mucous
membrane irritation than the insect repellent component. For this reason, insect
repellents containing Deet hardly cause problems related to mucous membrane
irritation.
[0005]The present invention was made in consideration of the previous problems and aims
to provide a spray product and spray method that have decreased mucous membrane
irritation although an insect repellent component that tends to irritate mucous
membranes, such as the nose, throat, etc. of users is contained.
B. [Means of solving problems][0006]The present inventors have intensively studied the cause of mucous membrane
irritation when the insect repellent component is contained in the insect repellent
composition, and have obtained the following findings. In other words, some of thesprayed insect repellents do not adhere to the application site, such as skin, hair, etc.,
but reach a point (e.g., at a distance of 30cm from a spray nozzle) beyond the application
distance (e.g., at a distance of 15 cm from the spray nozzle) and float. At such a distant12

point, the particle diameter is smaller than the particle diameter at the application
distance. As a result, particles that have decreased in size tend to be aspirated andirritate the mucous membranes. Then, the present inventors took into consideration not
only the particle diameter at an application distance, but also the particle diameter at apoint exceeding the application site, found that a spray product wherein the part icle
diameter ratio at each point is adjusted to the pre-determined value or higher candecrease mucous membrane irritation and can solve the problem even when combinedwith an insect repellent component that tends to irritate mucous membranes, andcompleted the present invention.
[0007]
A spray product of the present invention to solve the aforementioned problem is a
spray product filled with an insect repellent composition containing an insect repellent
component and formed with a spray nozzle for spraying the insect repellent
composition; wherein the insect repellent component is at least one component selectedfrom the group consisting of 3-(N-n-butyl-N-acetyl) aminopropionic acid ethylester, pmenthane-3,8-diol, and 1-metylpropyl 2-(2-hydroxylethyl)-1-piperidine carboxylate;wherein the particle diameter ratio (r 30 / r15) of 50% average particle diameter r 15 of asprayed insect repellent composition at a distance of 15cm from the spray nozzle and
50% average particle diameter r 30 of the sprayed insect repellent composition at a
distance of 30cm from the spray nozzle is adjusted to 0.6 or higher; and wherein 50%
average particle diameter r 30 of the sprayed insect repellent composition at a distanceof 30cm from the spray nozzle is adjusted to 50μm or larger.
[0008]In addition, a spray method in the present invention to solve the aforementioned
problem is a spray method to spray an insect repellent composition containing an insect
repellent component using a spray product filled with the insect repell ent composition
and formed with a spray nozzle for spraying the insect repellent composition; wherein
the insect repellent component is at least one component selected from the groupconsisting of 3-(N-n-butyl-N-acetyl) aminopropionic acid ethylester, p-menthane-3,8diol, and 1-metylpropyl 2-(2-hydroxylethyl)-1-piperidine carboxylate; wherein theparticle diameter ratio (r 30 / r15) of 50% average particle diameter r 15 at a distance of
15cm from the spray nozzle and 50% average particle diameter r 30 at a distance of 30cm
from the spray nozzle is adjusted to 0.6 or higher.
C. [Effects of the invention][0009]
According to the present invention, it is possible to provide a spray product and a13spray method that has decreased mucous membrane irritation although an insect
repellent component that tends to irritate mucous membranes, such as the nose, throat,etc. of users is contained in the insect repellent composition.
D. [Mode for embodying the invention][0010]<Spray product>
A spray product, which is an embodiment of the present invention, is a spray productfilled with an insect repellent composition containing an insect repellent component
and formed with a spray nozzle for spraying the insect repellent composition. In
addition, the spray product of the embodiment includes at least one component selectedfrom the group consisting of 3-(N-n-butyl-N-acetyl) aminopropionic acid ethylester, pmenthane-3,8-diol, and 1-metylpropyl 2-(2-hydroxylethyl)-1-piperidine carboxylate.
Furthermore, the spray product of the embodiment is adjusted so that the particle
diameter ratio (r 30 / r15) of 50% average particle diameter r 15 of a sprayed insect
repellent composition at a distance of 15cm from the spray nozzle and 50% average
particle diameter r 30 of a sprayed insect repellent composition at a distance of 30cm
from the spray nozzle is adjusted to 0.6 or higher. In addition, the spray product of thepresent embodiment is characterized in that the particle diameter ratio at the time ofspraying is adjusted to be in a specific range. For this reason, other configurations (e.g.,
the shape of the spray product, a variety of physical properties, such as othercomponents, composition, internal pressure of containers, etc.) are required to be within
the range of the particle diameter ratio and not particularly limited. Therefore, in thefollowing detailed description, structures other than the insect repellent component andthe particle diameter ratio are all examples.
[0011](First Embodiment)
In this embodiment, a case in which a spray product is a pump product will be
described as an embodiment of a spray product. The spray product of the present
embodiment is a pump product comprised of a pump container filled with the insect
repellent composition and an actuator attached to the pump container and formed withthe spray nozzle.
[0012]- Insect repellent composition
The insect repellent composition is content to fill a pump vessel and it contains an
insect repellent component to repel insects. The insect repellent component of thepresent embodiment includes at least one component selected from the group consisting14

of 3-(N-n-butyl-N-acetyl) aminopropionic acid ethylester, p-menthane-3,8-diol, and 1metylpropyl 2-(2-hydroxylethyl)-1-piperidine carboxylate. In addition to unsanitary
insects, such as mosquitoes, black flies, stable flies, house dust mites, bedbugs, etc.,
these insect repellent components can preferably repel annoying insects, such as
chironomids, and sandflies, etc. Meanwhile, when these insect repellent components
are continuously micronized over time after being sprayed, they generally tend to
irritate mucous membranes, such as the nose, throat, etc., of the user or a person near
the user (hereinafter also collectively referred to as "users, etc."). As a result, the users,
etc. tend to feel a sense of discomfort with their mucous membranes or to cough. It is
hard for this problem to occur with other insect repellent components and it is a problem
unique to 3-(N-n-butyl-N-acetyl) aminopropionic acid ethylester, p-menthane-3,8-diol,and 1-metylpropyl 2-(2-hydroxylethyl)-1-piperidine carboxylate. However, even if thespray product of this embodiment includes a component that tends to irritate mucous
membranes, since, as stated later, the particle diameter ratio of the sprayed insect
repellent composition is adjusted to be in the pre-determined range, it is difficult toirritate mucous membranes of users, etc.
[0013]
The content of the insect repellent component is not particularly limited. As an
example, the content of the insect repellent component is preferably to be 5% by massor more in the insect repellent composition. On the other hand, it is preferable for t hecontent of the insect repellent component to be 50% by mass or lower, and more
preferable to be 20% by mass or lower in the insect repellent composition. When thecontent of the insect repellent component is less than 5% by mass or lower, the spray
product may not be able to fully fulfill the insect repellent effects. On the other hand,when the content of the insect repellent component exceeds 50% by mass, the usabilityof the spray product tends to decrease more than increase in expected effects. When asingle insect repellent component is used and the content is adjusted to be 5% by massor more, the mucous membrane irritation tends to be stronger than when a plurality of
insect repellent components are used in combination. In this embodiment, it is mo relikely to show the reduction of mucous membrane irritation when a single insect
repellent component is used.
[0014]The insect repellent composition preferably contains, in addition to the insect
repellent component, a volatilization suppressive component, for which the vapor
pressure at 20°C is 2.5 kPa or lower in order to suppress volatilization after spraying.
This will suppress the volatilization of sprayed insect repellent composition and it is15hard for particle diameter to be decreased in size. The volatilization suppressive
component is not specifically limited. For example, the volatilization suppressive
component can be at least one component selected from the group consisting of 1,3 butylene glycol, propylene glycol, dipropylene glycol, glycerin, polyethylene glycol,
polypropylene glycol, and other glycols; glycerin fatty acid ester and other fatty acid
esters; palm oil and other vegetable oils; liquid paraffin; and water. If said components
are contained as volatilization suppressive components, volatilization of the sprayed
insect repellent composition is more easily suppressed and even if it is sprayed to arange exceeding the application site (e.g., at a distance of 30cm from the spray nozzle),
it is hard for the particle diameter to be decreased in size.
[0015]
When containing the volatilization suppressive component, the content of thevolatilization suppressive component is not specifically limited. For example, it ispreferable for the content of the volatilization suppressive component to be 10% bymass or more, and it is more preferable to be 15% by mass or more in the insect repellent
composition. If the content of the suppressive volatilization components is less than
10% by mass, the spray product may not be fully able to fulfill the effects of containing
the suppressive volatilization components.
[0016]In addition, as long as the effect of the present embodiment is not inhibited, optional
ingredients that have been combined with the insect repellent composition may be
combined as necessary. For example, the optional ingredients can be insect repellent
components other than the aforementioned insect repellent component; solvents otherthan the aforementioned volatilization suppressive component; non-ionic surfactants,
anionic surfactants, cationic surfactants, butylated hydroxytoluene, and otherantioxidants; disodium edetate, citric acid, ascorbic acid, and other stabilizing agents;
talc, silicic acid, and other inorganic powders; microbicide (fungicide), air refresher,fragrance (perfume), dye, pH adjuster, texture imparting agent, UV absorption inhibitor,
etc.
[0017]
Other insect repellent components can be, for example, phenothrin, N,N-diethyl-mtoluamide (Deet), dimethyl phthalate, dibutyl phthalate, 2-ethyl-1,3-hexanediol, di-nplopylisocinkomeronate, p-dichlorobenzene, di-n-butyl succinate, carane-3,4-diol,
capric acid diethylamide, n-propylacetanilide, β-naphthol, camphor, plant essential oil,etc. A plant essential oil can be, for example, eucalyptus oil, citronella oil, lemongrassoil, geranium oil, cinnamon leaf oil, pimento tree oil, clove oil, thyme oil, or other oils;
16

thymol, carvacrol, eugenol, limonene, or other single terpenes, etc.
[0018]
Solvents can be, for example, ethanol, isopropyl alcohol, and other low er alcohols;
acetone, hexane, and diethyl ether.
[0019]- Pump container
Returning to the description of the entire spray product, the insect repellent
composition is filled into a pump container. The pump container is not specificallylimited. For example, the pump container is nearly a cylindrical container formed with
an opening on the top. The opening is a filling port to fill the container with insect
repellent composition. After it is filled with the insect repellent composition, it is closedwith an actuator, which is described later.
[0020]The pump container materials are not specifically limited. Materials of the pumpcontainer can be, for example, polyethylene terephthalate, polypropylene, polyethylene,
and other synthetic resins.
[0021]- Actuator
The actuator is a component for closing the opening of the pump container and forspraying the insect repellent composition that fills the pump container. The actuator
includes a valve mechanism for taking out the insect repellent composition fi lling thepump container, a stem mechanism for actuating the valve mechanism, and a spraycomponent that is linked to the stem mechanism and sprays the insect repellent
composition, which is taken out by the valve mechanism. The spray component has aspray nozzle for spraying the insect repellent composition. In addition, the spraycomponent has a trigger unit operated by the user.
[0022]
When the user operates the trigger unit of the spray product of the present
embodiment, the stem mechanism and valve mechanism are operated to take out theinsect repellent composition from the pump container and to spray it from the spraynozzle of the spray component. The insect repellent composition to be sprayed from thespray nozzle is adjusted to be the pre-determined particle diameter and is sprayed in
mist form.
E. [0023]
It is preferred for the insect repellent composition that is sprayed by the spray
product of the present embodiment to be adjusted so that the particle diameter ratio (r 30
17

/ r15) of 50% average particle diameter r 15 at a distance of 15cm from the spray nozzle
and 50% average particle diameter r 30 at a distance of 30cm from the spray nozzle
becomes 0.6 or higher and it is preferred to be adjusted to 1.0 or more. In the present
embodiment, a distance of 15 cm from the spray nozzle is assumed to be a distancewhen the user of the spray product sprays at an application site (skin, hair, etc.). In
addition, in the present embodiment, a distance of 30 cm from the spray nozzle isassumed to be a distance when the sprayed insect repellent composition does not adhere
to the application site but reaches a further distance from the application site. At such a
distant point, it was considered that a conventional insect repellent composition tends
to have a smaller particle diameter and to irritate the mucous membranes of users, etc.
However, the spray product of the present embodiment is adjusted so that the particle
diameter ratio (r 30 / r15) is 0.6 or higher. For this reason, the particle diameter of thesprayed insect repellent composition remains the same at a distance of 30cm from thespray nozzle. As a result, the spray product may reduce mucous membrane irritation
although the specific insect repellent component that tends to irritate mucous
membranes is contained. In addition, the particle diameter of the sprayed insect
repellent composition and the particle diameter ratio (r 30 / r15) can be measured using alaser diffraction particle size measurement device (LDSA - 1400A; MicrotracBEL
Corp.).
[0024]As described above, it is only required for the spray product of the present
embodiment to be adjusted so that the particle diameter ratio (r 30 / r15 ) of the sprayed
insect repellent composition becomes 0.6 or higher and the method of adjusting theparticle diameter ratio to be within the above range is not specifically limited. For
example, it is only required for the particle size ratio (r 30 / r15) of an insect repellent
composition to be adjusted by adjusting the formulation of the insect repellent
composition (e.g., type and content of each ingredient, presence or absence and content
of repellent compositions, etc.), shape and dimensions of the actuator (e.g., size, form,
etc. of a spray nozzle), or a variety of physical properties, such as spray volume per unit
time (spray speed), spray pressure, etc. For example, the shape of the actuator can be a
trigger type, finger-pump type, etc. The spray nozzle size of these actuators can be φ0.1
to 1.0mm, and there can be a plurality of spray nozzles. The inner diameter of the dip
tube can be 1 to 10mm, and preferably 1 to 5mm, and more preferably 1 to 3mm. The
spray volume per spray can be 0.05 to 3.0mL, preferably 0.05 to 1.5mL, and more
preferably 0.05 to 0.5mL. The spray angle is preferably between 10 to 80 d egrees, andmore preferably 20 to 70 degrees. In the case of an accumulator pump, the spray volume
18

per second can be 0.1 to 5.0g. The spray pressure can be 0.01 to 0.50N when measured
at a distance of 15cm using a digital force gauge (DS2-2N; Imada Co., Ltd.).
[0025]In addition, it is preferred for the insect repellent composition sprayed by the spray
product of the present embodiment to have 50% average particle diameter r 15 at a
distance of 15cm from the spray nozzle of 50μm or larger, and more preferably 100μm
or larger. Further, 50% average particle diameter r 15 is preferably 300μm or less, more
preferably 200μm or less, and even more preferably 150μm or less. If 50% average
particle diameter r 15 is less than 50μm, the mucous membranes of users, etc. tend to be
irritated.
[0026]
It suffices for the insect repellent composition sprayed by the spray product of thepresent embodiment to have 50% average particle diameter r 30 at a distance of 30cm
from the spray nozzle of 50μm or larger, but more preferably 70μm or larger, and evenmore preferably 100μm or larger. Further, 50% average particle diameter r 30 is preferred
to be 300μm or less, more preferably 200μm or less, and even more preferably 150μm
or less. If 50% average particle diameter r30 is less than 50μm, mucous membranes ofusers, etc. tend to be irritated.
[0027]The manufacturing method of the spray product of the present embodiment is not
specifically limited. For example, the spray product can be manufactured by filling apump container with the insect repellent composition and by closing the opening of thepump container using an actuator.
[0028]As described above, according to the spray product (pump product) of the present
embodiment, although the specified insect repellent component which tends to irritate
mucous membranes is contained, since the particle diameter ratio (r 30 / r15) of thesprayed insect repellent composition is maintained at 0.6 or higher after spraying, themucous membrane irritation may be decreased.
F. [0042]<Spray method>
The spray method of an embodiment of the present invention is to spray an insect
repellent composition containing an insect repellent component using a spray productfilled with the insect repellent composition and formed with a spray nozzle for spraying
the insect repellent composition. In addition, the insect repellent component that is usedin the spray method of the present embodiment includes at least one component selected
19

from the group consisting of 3-(N-n-butyl-N-acetyl) aminopropionic acid ethylester, pmenthane-3,8-diol, and 1-metylpropyl 2-(2-hydroxylethyl)-1-piperidine carboxylate.
Furthermore, the spray method of the embodiment is to spray the insect repellent
composition so that the particle diameter ratio (r 30 / r15) of 50% average particle
diameter r15 of a sprayed insect repellent composition at a distance of 15cm from thespray nozzle and 50% average particle diameter r 30 of a sprayed insect repellent
composition at a distance of 30cm from the spray nozzle becomes 0.6 or higher.
[0043]
When working the spray method of the present embodiment, the same insect
repellent composition containing an insect repellent component and the spray productcan be used as those described in the first embodiment and the second embodiment. In
addition, the spray method of the present embodiment can be worked using the spray
product, which is a pump product, and can also be worked using the spray product,
which is an aerosol product.
[0044]
According to the spray method of the present embodiment, although the specificinsect repellent component that tends to irritate mucous membranes is contained, thesprayed insect repellent composition is sprayed in a way where the particle diameter
ratio (r30 / r15) is maintained at 0.6 or higher after spraying. As a result, the insect
repellent composition that is sprayed by the spray method of the present embodimenthardly irritates the mucous membranes of users, etc.
G. [Embodiments][0045]
Hereinafter, the present invention will be described in more detail with the examplesof the embodiment. The present invention is not limited in any way to these examplesof the embodiment.
[0046]<Pump product>
Details of the pump products used are described below.
(Pump product 1)
Pump product 1 is used in embodiments 1 through 10, and 14, comparative examples
1 through 6, and 8, and reference example 1. Pump product 1 includes the following
actuator 1. The internal volume of pump product 1 is approximately 240 mL. The
following examples of the embodiment and comparative examples were filled withapproximately 150 mL of insect repellent composition.
Actuator 1: Mitani Valve Co., Ltd. (Product No.: Z-305-101T7); trigger type spray
20

component (Product No. ND-97-0; spray nozzle diameter: φ 0.45mm; dip tube innerdiameter: φ 2.4mm; spray angle: 64 degrees (reference value); spray volume per time:
approximately 0.3cc)(Pump product 2)
Pump product 2 is used in embodiments 11 through 13, and comparative example 7.
Pump product 2 includes the following actuator 2. The internal volume of pump product1 is approximately 70 mL. The following examples of the embodiment and comparative
examples were filled with approximately 50 mL of insect repellent composition.
Actuator 2: Mitani Valve Co., Ltd. (Product No.: Z-75-C115), push-down type spraycomponent (Product No.: ND-913; spray nozzle diameter: φ 0.32mm; dip tube innerdiameter: φ 2.1mm; spray angle: 21 degrees (reference value); spray volume per time:
approximately 0.075cc)[0047](Examples of embodiment 1 through 14; comparative examples 1 through 8; reference
example 1)
An insect repellent composition was prepared according to the formulation statedin Table 1 or Table 2. The obtained insect repellent composition was filled into a pumpcontainer that can be attached on pump product 1 or pump product 2 after confirmingthat the dip tube of pump product 1 or pump product 2 is fully immersed; pump product1 or pump product 2 was attached, and the spray product was thus manufactured. In
addition, the unit of the numerical value of composition volume of each composition
ingredient other than dehydrated ethanol as described in the table is (wt / v%).
[0050]<50% average particle diameter>
The spray product was maintained at 25°C and a 50% average particle diameter wasmeasured using a laser diffraction particle size measurement device (LDSA -1400A;
MicrotracBEL Corp.). Concerning the measurement, the insect repellent composition
was sprayed once at distances of 15 cm and 30cm from the spray nozzle and the average
particle diameter of the insect repellent composition was measured. Based on theobtained measurement result, a particle diameter ratio (r 30 / r15) of 50% average particle
diameter r15 and 50% average particle diameter r 30 was calculated. Measurement was
performed 5 times, and an average of 3 points excluding the maximum value and theminimum value was calculated. The results are shown in Table 1.
[0051]<Mucosal irritation>
The spray product was maintained at 25°C, the insect repellent composition was
21sprayed at the shoulder of a subject from a distance of 15cm, and the subject evaluatedthe sensation of irritation. The spray frequency was determined to be once for pumpproduct 1 and 4 times for pump product 2 so that spray volume would be equal. Mucosal
irritation was evaluated according to the following evaluation criteria. It was evaluatedby 10 subjects and an average was calculated. The results are shown in Table 1.
(Evaluation criteria)
1: No mucosal irritation was felt.
2: Weak mucosal irritation was felt.
3: Mucosal irritation was felt.
4: Strong mucosal irritation was felt.
5: Strong mucosal irritation above the tolerance levels was felt.
[0052]As shown in Table 1, the spray products in the examples of embodiment 1 through14, which were adjusted to have a particle size ratio (r 30 / r15) of 0.6 or higher, had
reduced mucosal irritation to the same level as a spray product (e.g., reference example
1 shown in Table 2) in which N,N-diethyl-m-toluamide (Deet) is contained. In addition,
as it can be seen from a comparison of the examples of embodiment 1 through 3 andexamples of embodiment 11 through 13, it was found that the spray product in thepresent invention can obtain the effect of a reduction in mucosal irritation since theparticle diameter ratio (r 30 / r15) is adjusted to 0.6 or higher even if the dimensions, etc.
(spray type, spray nozzle diameter, spray volume per time, and other conditions) of thepump product to be used (actuator) are different. Further, as can be seen from acomparison of the examples of embodiment 5 and 6 and comparative example 4, acomparison of the examples of embodiment 7 and 8 and comparative example 5, and acomparison of the example of embodiment 14 and comparative example 8, it was foundthat the average particle diameter r 30 can be adjusted by adjusting the volume of waterand solvent to be combined and the effects of reduction in mucosal irritation can beobtained if the particle diameter ratio (r30 / r15) is adjusted to 0.6 or higher by said
adjustment. In addition, as can be seen from the comparison of the example ofembodiment 4 and comparative example 3, the spray product in the example ofembodiment 4 had a smaller value for the average particle diameter r 30 than the spray
product of comparative example 3; however, the particle diameter ratio (r 30 / r15) was
larger than the spray product of comparative example 3. In other words, it was foundthat it was harder for the spray product of the example of embodiment 4 to be
microparticulated over time than the spray product of comparative example 3, and thiswould reduce mucosal irritation. On the other hand, as shown in Table 2, with the spray22

products of comparative examples 1 through 8, which were adjusted to have a particle
diameter ratio (r 30 / r15) to less than 0.6, subjects felt stronger mucosal irritation thanthose of the examples of embodiment 1 through 14.
[0053](Examples of embodiment 14 through 16; comparative examples 8 and 9)
Insect repellent compositions of the examples of embodiment 14 through 16 andcomparative examples 8 and 9 were prepared according to the formulation stated inTable 3. Among the obtained insect repellent compositions, the insect repellent
compositions of the examples of embodiment 14 and 15 and comparative example 8
were filled into a pump container that can be attached to pump product 1 after
confirming that the dip tube of pump product 1 is fully immersed; pump product 1 was
attached, and the spray product was thus manufactured. Similarly, the insect repellent
compositions of the example of embodiment 16 and comparative example 9 were filled
into a pump container that can be attached to pump product 2 after confirming that thedip tube of pump product 2 is fully immersed; pump product 2 was attached, and thespray product was thus manufactured. In addition, the unit of the numerical value ofcomposition volume of each composition ingredient other than dehydrated ethanol as
described in the table is (wt / v%). With respect to the obtained spray products, the dropamount was measured by the following evaluation method. The results are shown in
Table 3.
[0054]<Drop amount measurement>
At the center of a tray, 5 tissue papers (Serenade Flower: 200mm × 205mm;
Ideshigyo Kabushiki Kaisha) were placed in a stack. Samples were sprayed horizontallyfrom a point at a distance of 30cm in a horizontal direction from the center of the tray
and at a distance of 100cm in a vertical direction. 20 seconds after the s pray, the tissue
papers were collected. The weight of formulation adhered to the tissue papers and theweight of sprayed samples were measured by weighing. Then, the adhesion ratio was
calculated according to the following formula.
Adhesion ratio (%) = Weight of formulation adhered to tissue papers / Weight ofsprayed samples × 100[0056]As shown in Table 3, it was found, concerning the spray products of the examplesof embodiment 14 through 16, that the formulation often dropped in the spray direction,
without scattering that much, and was sprayed efficiently in the spray direction. On theother hand, concerning the spray products of comparative examples 8 and 9, it was
23

found that the drop amount of the formulation against the spray amount was small andthe formulation scattered into the air. Therefore, it is presumed that the small amountof the formulation scattering in the present invention is also a cause of reduction in theirritation sensation.
(2) According to the statement in (1) above, it is found that there are the following
disclosures in relation to Invention 1 in the detailed explanation in the Descriptions.
A. Previously, insect repellents in which 3-(N-n-butyl-N-acetyl) aminopropionic acid
ethylester, p-menthane-3,8-diol, and 1-metylpropyl 2-(2-hydroxylethyl)-1-piperidine
carboxylate are contained as an insect repellent component in lieu of N,N -diethyl-mtoluamide (Deet), which is an insect repellent component that had been used in an insect
repellent, had problems, such as when it was sprayed as a pump product or aerosol
product, sprayed particles tended to irritate the mucous membranes, such as the nose,
throat, etc. of the user or persons near the user, causing them to feel a sense of
discomfort with their mucous membranes or to cough ([0002] and [0004]).
B. In consideration of such problems, "the present invention" aims to provide a spray
product and spray method that have decreased mucous membrane irritation although an
insect repellent component that tends to irritate mucous membranes, such as the nose,
throat, etc. of users is contained and sets as its problem to provide the aforementioned
spray product and the spray method ([0005]).
"The present inventors" gained the following knowledge that some of the sprayed
insect repellents do not adhere to the application points, such as skin, hair, etc., butreach a point (e.g., at a distance of 30cm from a spray nozzle) beyond the application
distance (e.g., at a distance of 15 cm from the spray nozzle) and float; at such a distantpoint (a point exceeding the application site), the particle diameter is smaller than theparticle diameter at the application distance and, as a result, the particles that havedecreased in size tend to be aspirated and to irritate the mucous membranes; andtherefore, the present inventors took into consideration not only the particle diameter at
the application distance, but also the particle diameter at a point exceeding theapplication site, found that a spray product wherein the particle diameter ratio at eachpoint is adjusted to the pre-determined value or higher can decrease mucous membrane
irritation and solve the problem even when combined with an insect repellent
component that tends to irritate mucous membranes, and completed the present
invention." ([0006]).
The spray product of "the present invention" is a spray product, as a means to solve
the problem, filled with an insect repellent composition containing an insect repellent
component that is at least one component selected from the group consistin g of 3-(N24n-butyl-N-acetyl) aminopropionic acid ethylester, p-menthane-3,8-diol, and 1metylpropyl 2-(2-hydroxylethyl)-1-piperidine carboxylate and formed with a spraynozzle for spraying the insect repellent composition; and it adopted the following
structure, wherein the particle diameter ratio (r 30 / r15) of 50% average particle diameterr15 of a sprayed insect repellent composition at a distance of 15cm from the spray nozzle
and 50% average particle diameter r 30 of a sprayed insect repellent composition at a
distance of 30cm from the spray nozzle is adjusted to 0.6 or higher, and wherein 50%
average particle diameter r 30 of the sprayed insect repellent composition at a distanceof 30cm from the spray nozzle is adjusted to 50μm or larger ([0007]).
According to the spray product of "the present invention," although an insect
repellent component, which tends to irritate mucous membranes, such as the nose,
throat, etc., of users, is contained, since the particle diameter ratio (r 30 / r15) of thesprayed insect repellent composition is maintained at 0.6 or higher after spraying, itshows the effect that the mucous membrane irritation may be decreased ([0009] and[0028]).
2. Grounds for Rescission 1 (Error in the determination concerning the correction
requirements)(1) Error in the determination concerning the purpose of the correction
A. Whether there is an aim for "restriction of the claims"
The Plaintiff alleged that the JPO Decision determined concerning the Correction
as follows: [i] corrected matter 1 is to correct the term "噴射製品[spray product]" asdefined in Claim 1 before the Correction to the expression "粘膜への刺激が低減された、噴射製品[spray product that has decreased mucous membrane irritation]"; thespray product is an invention of an article filled with an insect repellent composition;
it is understood that the invention reduced the action of irritation to mucous membranes
that the insect repellent composition causes and the invention limited the substantial
action and use of the invention of an article filled with the insect repellent composition,
as a structure of the invention; and therefore, corrected matter 1 aims to "restrict theclaims" (Article 134-2, proviso to paragraph (1), item (i) of the Patent Act); and [ii]corrected matter 2 is to correct the term "噴射方法[spray method]" as defined in Claim
3 before the Correction to the expression "粘膜への刺激を低減する、噴射方法[spraymethod that decreases mucous membrane irritation]"; the spray method is an inventionof "a spray method to spray an insect repellent composition"; and it is understood thatthe invention reduced the action of irritation to mucous membranes that the insect
repellent composition causes and the invention limited the substantial action and use of
the invention of a method to spray the insect repellent composition, as a structure of the25

invention; and therefore, corrected matter 2 aims to "restrict the claims"; however, there
are errors in the determination of the JPO Decision. Therefore, it is examined below.
(A) It is found that corrected matter 1 corrected the term "噴射製品[spray product]" asdefined in Claim 1 before the Correction to the expression "粘膜への刺激が低減された、噴射製品[spray product that has decreased mucous membrane irritation]" andcorrected matter 2 corrected the term "噴射方法[spray method]" as defined in Claim 3
before the Correction to the expression "粘膜への刺激を低減する、噴射方法[spraymethod that decreases mucous membrane irritation]" (Exhibit Ko 46); and thestatements related to actions of "having decreased mucous membrane irritation" or"decreasing mucous membrane irritation" are added to statements of "噴射製品[spray
product]" as defined in Claim 1 before the Correction and "噴射方法[spray method]"
as defined in Claim 3 before the Correction respectively.
In other words, there are the following statements concerning the "reduction of
mucous membrane irritation" in the Descriptions: "the present inventors took into
consideration not only the particle diameter at an application distance, but also theparticle diameter at a point exceeding the application site, found that a spray productwherein the particle diameter ratio at each point is adjusted to the pre-determined value
or higher can decrease mucous membrane irritation and can solve the problem evenwhen combined with an insect repellent component that tends to irritate mucous
membranes, and completed the present invention." ([0006]); "the spray product of theembodiment is adjusted so that the particle diameter ratio (r 30 / r15) of 50% average
particle diameter r 15 of a sprayed insect repellent composition at a distance of 15cm
from the spray nozzle and 50% average particle diameter r 30 of a sprayed insect
repellent composition at a distance of 30cm from the spray nozzle becomes 0.6 or higher.
In addition, the spray product of the present embodiment is characterized in that theparticle diameter ratio at the time of spraying is adjusted to be in a specific range. For
this reason, other configurations (e.g., the shape of the spray product, a variety ofphysical properties, such as other components, composition, internal pressure ofcontainers, etc.) are required to be within the range of the particle diameter ratio andnot particularly limited." ([0010]); "the spray product of the present embodiment isadjusted so that the particle diameter ratio (r 30 / r15) becomes 0.6 or higher. For thisreason, the particle diameter of the sprayed insect repellent composition remains thesame at a distance of 30cm from the spray nozzle. As a result, the spray product may
have reduced mucous membrane irritation although the specific insect repellent
component that tends to irritate mucous membranes is contained." ([0023]); "Asdescribed above, it is only required for the spray product of the present embodiment to26

be adjusted so that the particle diameter ratio (r 30 / r15) of the sprayed insect repellent
composition becomes 0.6 or higher and the method of adjusting the particle diameter
ratio to be within the above range is not specifically limited." ([0024]); "As describedabove, according to the spray product (pump product) of the present embodiment,
although the specified insect repellent component which tends to irritate mucous
membranes is contained, since the particle diameter ratio (r 30 / r15) of the sprayed insect
repellent composition is maintained at 0.6 or higher after spraying, the mucous
membrane irritation may be decreased." ([0028]); "According to the spray method of
the present embodiment, although the specific insect repellent component that tends toirritate mucous membranes is contained, the sprayed insect repellent composition issprayed in a way where the particle diameter ratio (r 30 / r15) is maintained at 0.6 orhigher after spraying. As a result, the insect repellent composition that is sprayed by thespray method of the present embodiment hardly irritates the mucous membranes ofusers, etc." ([0044]); "As shown in Table 1, the spray products in the examples of
embodiment 1 through 14, which were adjusted to have a particle size ratio (r 30 / r15) of
0.6 or more, had reduced mucosal irritation to the same level as a spray product (e.g.,reference example 1 shown in Table 2) in which N,N-diethyl-m-toluamide (Deet) is
contained. In addition, as can be seen from a comparison of the examples of
embodiment 1 through 3 and examples of embodiment 11 through 13, it was found thatthe spray product in the present invention can obtain the effects of a reduction in
mucosal irritation since the particle diameter ratio (r 30 / r15) is adjusted to 0.6 or higher
even if the dimensions, etc. (spray type, spray nozzle diameter, spray volume per time,and other conditions) of the pump product to be used (actuator) are different." ([0052]).
Based on the descriptions above, it is found that the Descriptions disclosed thefollowing: the function and effect of "reduction of mucous membrane irritation" areshown by the structure "wherein the particle diameter ratio (r 30 / r15) of 50% average
particle diameter r 15 of the sprayed insect repellent composition at a distance of 15cm
from the spray nozzle and 50% average particle diameter r 30 of the sprayed insect
repellent composition at a distance of 30cm from the spray nozzle is adjusted to 0.6 orhigher" as defined in Claim 1 before the Correction or the structure "wherein the particle
diameter ratio (r 30 / r15) of 50% average particle diameter r 15 at a distance of 15cm fromthe spray nozzle and 50% average particle diameter r 30 at a distance of 30cm from thespray nozzle is 0.6 or higher" as defined in Claim 3 before the Correction. On the other
hand, the Descriptions have no statements or suggestions that even in cases where thestructures as defined in Claims 1 and 3 before the Correction were used, there are cases
where the function and effect of "reduction of mucous membrane irritation" are not27

shown.
Then, the statements related to the actions of "having decreased mucous membrane
irritation" or "decreasing mucous membrane irritation" that were added by corrected
matters 1 and 2 only stated the function and effect shown by the structures as definedin Claims 1 and 3 before the Correction. Therefore, it cannot be found that corrected
matters 1 and 2 narrowed down the claims related to the inventions as defined in Claims
1 and 3 before the Correction.
(B) Consequently, it cannot be found that corrected matters 1 and 2 aim to "restrict theclaims" (Article 134-2, proviso to paragraph (1), item (i) of the Patent Act), andtherefore, the allegation of the Plaintiff has grounds.
B. Allegation of the Defendant
The Defendant alleged as follows: it is understood that, in the invention of an article
filled with an insect repellent composition (Claim 1 before the Correction), corrected
matter 1 reduced the action of mucous membrane irritation that the insect repellent
composition causes and it substantially limited the usage or action of the invention ofan article filled with an insect repellent composition as a structure of the invention; andit is understood that, in the invention of a spray method to spray an insect repellent
composition (Claim 3 before the Correction), corrected matter 2 reduced the action of
mucous membrane irritation that the insect repellent composition causes and it
substantially limited the usage or action of the invention of a method to substantiallyspray an insect repellent composition as a structure of the invention; and co rrected
matters 1 and 2 limited at least the usages or actions concerning the claims of theinventions as defined in Claims 1 and 3 before the Correction, and therefore, they aim
to "restrict the claims."
However, the aforementioned allegation of the Defendant states the same grounds
as the JPO Decision, and therefore, as explained in A. above, it cannot be accepted.
(2) Summary
As described above, corrected matters 1 and 2 are not found to be aiming to "restrict
the claims" (Article 134-2, proviso to paragraph (1), item (i) of the Patent Act), andtherefore, without the need to make determinations concerning the remaining points,
the Correction does not conform to said item.
Then, the JPO Decision contains an error in the determination concerning t hecorrection requirements of the Correction and this error in the determination was causedby the error in the finding of the summary of the invention related to Claims 1 through3 of the claims of the Patent, and therefore, the JPO Decision should be res cinded.
3. Grounds for Rescission 2 (Error in the determination concerning novelty of28

Inventions 1 through 3 for which the invention related to Exhibit Ko 1 Product (Publicly
Worked Invention) is cited as the primary prior art) (related to Grounds for Invalidation1)
In consideration of this case, Grounds for Rescission 2 on the premises that theCorrection is lawful are examined for confirmation.
(1) Error in the determination concerning novelty of Invention 1
A. Differences 2 and 3(A) The JPO Decision found that Publicly Worked Invention 1-1 is "a spray product"with a particle diameter ratio (r 30 / r15) of "0.80" and 50% average particle diameter r 30
of "236.27μm," and that Invention 1 and Publicly Worked Invention 1-1 have common
features that they are "spray products" with "the particle diameter ratio (r 30 / r15) of 0.6
or higher" and "50% average particle diameter r 30 of 50μm or larger." Concerning
Differences 2 and 3, the JPO Decision found as follows: Publicly Worked Invention 1 1 is not found to have been recognized as a spray product wherein the particle diameter
ratio (r30 / r15) is adjusted to 0.6 or higher and the 50% average particle diameter r 30 isadjusted to 50μm or larger, and thereby, mucous membrane irritation is reduced; itcannot be said that there was "a technical idea that even if an insect repellent component
that tends to irritate mucous membrane is contained, a spray product that has decreased
mucous membrane irritation by adjusting the particle diameter rate (r 30 / r15) of asprayed insect repellent composition to 0.6 or higher by focusing on the particle
diameter rate (r 30 / r15), and by adjusting the 50% average particle diameter r 30 to 50μm
or larger by focusing on the 50% average particle diameter r 30." Then, the JPO Decision
determined that Differences 2 and 3 are substantial differences (No.2, 3. (1) A., (2) A.,and (3) A. (B) above).
However, it is understood that, in light of the fact that the claims of the patent related
to the invention of an article is specified by its mechanism, the characteristics, etc., theterm "adjusted" as used in the structure "wherein the particle diameter ratio (r 30 / r15) of
50% average particle diameter r15 of the sprayed insect repellent composition at a
distance of 15cm from the spray nozzle and 50% average particle diameter r 30 of thesprayed insect repellent composition at a distance of 30cm from the spray nozzle isadjusted to 0.6 or higher, and wherein the 50% average particle diameter r 30 of thesprayed insect repellent composition at a distance of 30cm from the spray nozzle isadjusted to 50μm or larger" in the claims (Claim 1) of Invention 1 referred to "adjusted
conditions" and the aforementioned structure stipulated that "particle diameter ratio (r 30/ r15)" and "50% average particle diameter r 30 " after the adjustment are "0.6 or higher"and "50μm or larger" respectively.
29Based on the above, both the particle diameter ratio (r 30 / r15) "0.80" and 50%
average particle diameter r 30 "236.75μm" of Publicly Worked Invention 1-1 indicate theadjusted conditions and are included in the numerical range of the "particle diameter
ratio (r30 / r15)" "0.6 or higher" and "50% average particle diameter r30" "50μm or larger"
of Invention 1. Therefore, Publicly Worked Invention 1-1 is found to have theaforementioned structure of Invention 1.
Then, Difference 2 is found not to be a substantial difference between Invention 1
and Publicly Worked Invention 1-1, and therefore, there is an error in the determination
concerning Difference 2 in the JPO Decision.
(B) Next, the technical idea that is found by the JPO Decision as defined in (A) above
is not a matter stated in the claims (Claim 1) of Invention 1. Therefore, when
determining the identicalness between Invention 1 and Publicly Worked Invention 1 -1,
using the fact that the existence of the technical idea in Publicly Worked Invention 1 -1
is recognized or can be recognized as a criterion for determination is not based on thestatement of the claims and is not reasonable.
Then, the determination of the JPO Decision that Differences 2 and 3 are substantial
differences contains an error in this regard.
The allegations of the Defendant against the above cannot be accepted.
B. Difference 1
The JPO Decision determined as follows concerning Difference 1: [i] Publicly
Worked Invention 1-1 contains water, but Exhibit Ko 2 stated that water is added as a"solvent"; and therefore, the purpose of adding water in Publicly Worked Invention 11 is different from that in Invention 1; and it is not found that water is recognized as avolatilization suppressive component to suppress volatilization after spraying; [ii] it isunderstood that the following facts form a unified technical idea: "by containing avolatilization suppressive component to suppress volatilization after spraying"(particulars for identifying Invention 1 related to Difference 1); "by adjusting theparticle diameter rate (r 30 / r15) to 0.6 or higher" and "by adjusting 50% average particle
diameter r30 to 50μm or larger" (particulars for identifying Invention 1 related to
Difference 2); and thereby creating "a spray product that has decreased mucous
membrane irritation" (particulars for identifying Invention 1 related to Difference 3);
then, even if water is contained in Publicly Worked Invention 1-1, it cannot be foundthat the following technical idea was recognized: said water acts as "a volatilization
suppressive component to suppress volatilization after spraying," "a spray product thathas decreased mucous membrane irritation" is created as a result that "particle diameter
ratio (r30 / r15) is adjusted to 0.6 or higher," and "50% average particle diameter r 30 is30adjusted to 50μm or larger." In conclusion, the JPO Decision determined that Difference
1 is a substantial difference (No. 2, 3. (3) B. above).
However, the aforementioned determination by the JPO Decision contains an error
as stated below.
(A) Concerning [i]a. The claims (Claim 1) of Invention 1 have the following statement: "the insect
repellent composition contains 10% by mass or more of a volatilization suppressive
component (except in the case where the volatilization suppressive component isglycerin) that has a vapor pressure of 2.5 kPa or lower at 20°C in the insect repellent
composition in order to suppress volatilization after spraying the insect repellent
composition." Based on the aforementioned statement, it is understood that a"volatilization suppressive component" as defined in Invention 1 is a component tosuppress volatilization after spraying and glycerin is not included in the component;
however, on the other hand, there is no statement in Claim 1 to stipulate what
component other than glycerin falls under the "volatilization suppressive component."
Next, concerning the volatilization suppressive component, there are the following
statements in the Descriptions: "The insect repellent composition preferably contains,in addition to the insect repellent component, a volatilization suppressive component,
for which the vapor pressure at 20°C is 2.5 kPa or lower in order to suppress
volatilization after spraying. This will suppress the volatilization of sprayed insect
repellent composition and it is hard for particle diameter to be decreased in size. The
volatilization suppressive component is not specifically limited. For example, thevolatilization suppressive component is at least one component selected from the groupconsisting of 1,3-butylene glycol, propylene glycol, dipropylene glycol, glycerin,
polyethylene glycol, polypropylene glycol, and other glycols; glycerin fatty acid esterand other fatty acid esters; palm oil and other vegetable oils; liquid paraffin; and water."([0014]). Based on the aforementioned statement, it is understood that "water, for which
the vapor pressure at 20°C is 2.5 kPa or lower" is one of the components falling underthe "volatilization suppressive component" of Invention 1.
Then, "water, for which the vapor pressure at 20°C is 2.3366 kPa" that is containedin Publicly Worked Invention 1-1 is found to fall under the "volatilization suppressive
component" of Invention 1, and therefore, Difference 1 is not found to be a subst antial
difference.
b. In this regard, the JPO Decision cited the following point as one of the reasons why
Difference 1 is a substantial difference: Publicly Worked Invention 1 -1 contains waterand according to Exhibit Ko 2, water is added as a "solvent" and it is not found to have31

been recognized as a volatilization suppressive component to suppress volatilization
after spraying.
However, in light of the fact that the claims for a patent related to the invention ofan article are identified by the mechanism, characteristics, etc. of the invention, whether"water" contained in Publicly Worked Invention 1-1 falls under the "volatilization
suppressive component" of Invention 1 should be determined as to whether the "water"
can be identified objectively to be a component to suppress volatilization after spraying;
and therefore, the aforementioned determination should not be affected by the purposeof adding water and whether water was recognized as a volatilization suppressive
component to suppress volatilization after spraying.
Therefore, there is an error in the determination concerning [i] above by the JPO
Decision.
(B) Concerning [ii]The JPO Decision cited the following point as one of the reasons why Difference 1
is a substantial difference: even if water is contained in Publicly Worked Invention 1-1,
it cannot be found that the following technical idea was recognized: "a spray productthat has decreased mucous membrane irritation" is created as a result that said water
acts as "a volatilization suppressive component to suppress volatilization after
spraying," "the particle diameter rate (r 30 / r15) is adjusted to 0.6 or higher" and "50%average particle diameter r 30 is adjusted to 50μm or larger."
However, the technical idea that is found by the JPO Decision is not a matter statedin the claims (Claim 1) of Invention 1. Therefore, when determining the identicalness
between Invention 1 and Publicly Worked Invention 1-1, using the fact that theexistence of the technical idea in Publicly Worked Invention 1-1 is recognized or canbe recognized as a criterion for determination is not based on the statement of the claims
and is not reasonable. Consequently, there is an error in the determination concerning[ii] above by the JPO Decision.
(C) Summary
Therefore, there is an error in the determination by the JPO Decision that Difference
1 between Invention 1 and Publicly Worked Invention 1-1 is a substantial difference.
The allegations of the Defendant against the above cannot be accepted.
C. Summary
Based on the above, there is an error in the determination concerning Differences 1
through 3 by the JPO Decision, and therefore, there is an error in the determination by
the JPO Decision that Invention 1 is not identical to Publicly Worked Invention 1 -1.
(2) Error in the determination concerning novelty of Invention 2
32

The JPO Decision determined that Invention 2 directly cites Invention 1, andtherefore, Invention 2 cannot be said to be an invention that was publicly known to beworked based on the same reasons for the determination concerning Invention 1 andPublicly Worked Invention 1-1.
However, as stated in (1) above, there is an error in the determination concerning
the identicalness between Invention 1 and Publicly Worked Invention 1-1 by the JPO
Decision, and therefore, there is an error in the aforementioned determination
concerning Invention 2 by the JPO Decision.
(3) Error in the determination concerning novelty of Invention 3
The JPO Decision determined that although Publicly Worked Invention 1-1, which
is an invention of an article, and Publicly Worked Invention 1-3, which is an inventionof a method, are in different categories of inventions, the technical matters identified
for both inventions are the same; Differences 1 through 3 between Invention 3 andPublicly Worked Invention 1-3 are substantially the same as Differences 1 through 3
between Invention 1 and Publicly Worked Invention 1-1; and based on the same grounds
for the determination concerning Invention 1 and Publicly Worked Invention 1-1,
Invention 3 is not an invention that was publicly known to be worked.
However, as stated in (1) above, there is an error in the determination concerning
the identicalness between Invention 1 and Publicly Worked Invention 1-1 by the JPO
Decision, and therefore, there is an error in the aforementioned determination
concerning Invention 3 by the JPO Decision.
(4) Summary
Based on the above, there is an error in the determination concerning the novelty ofInventions 1 through 3 by the JPO Decision, and therefore, Grounds for Rescission 2
alleged by the Plaintiff have grounds.
In addition, as stated in 2 (2) above, the JPO Decision should be rescinded by
Grounds for Rescission 1. Therefore, the binding authority of this judgment (Article 33,
paragraph (1) of the Administrative Case Litigation Act) does not apply to thisdetermination.
No. 5 Conclusion
As mentioned above, Grounds for Rescission 1 alleged by the Plaintiff have grounds,
and therefore, the JPO Decision should be rescinded and the judgment shall be rendered
as indicated in the main text.
Intellectual Property High Court, First Division
Presiding judge: OTAKA Ichiro
33

Judge: OGAWA Takatoshi
Judge: TOYAMA Atsushi

34

[Table 1]
Table 1
Composition

2
5

3
5

4
5

111.7 111.9 105.1

91.4

5
-

Examples of embodiment
6
7
8
9
-

10
11
12
13
14
3-(N-n-butyl-N-acetyl) aminopropionic acid ethylester
55
520
1-metylpropyl 2-(2-hydroxylethyl)-1-piperidine
5
5
15
15
carboxylatep-menthane-3,8-diol
15
15
1,3-butylene glycol
10
20
5
20
5
20
5
20
5
10
20
5
20
propylene glycol
20
Purified water
10
10
10
10
10
Appropriate Appropriate Appropriate Appropriate Appropriate Appropriate Appropriate Appropriate Appropriate Appropriate Appropriate Appropriate Appropriate Appropriate
Anhydrous ethanol
amountamountamountamountamountamountamountamountamountamountamountamountamountamountTo be 100mL.
Total
Average particle diameter r15 (μ m)1
5109.2 111.3 112.6 113.2 117.2 103.6

80.2

86.5

84.3

111.3

Average particle diameter r30 (μ m)118.9 123.8 72.8 56.9 107.5 95.1 137.7 149.9 105.0 106.8
Particle diameter ratio (r30 / r15)
1.06 1.11 0.69 0.62 0.98 0.85 1.22 1.32 0.90 1.03
Mucosal irritation evaluation results (Evaluation results for 10 subjects in total)
Number of subjects who evaluated the mucosal
3
7
0
0
2
2
0
0
0
4
irritation as 1
Number of subjects who evaluated the mucosal
6
3
6
6
7
5
6
5
6
6
irritation as 2
Number of subjects who evaluated the mucosal
0
0
4
4
1
3
4
4
4
0
irritation as 3
Number of subjects who evaluated the mucosal
1
0
0
0
0
0
0
1
0
0
irritation as 4
Number of subjects who evaluated the mucosal
0
0
0
0
0
0
0
0
0
0
irritation as 5
Average score
1.9
1.3
2.4
2.4
1.9
2.1
2.4
2.6
2.4
1.6

59.4
0.74

76.4
0.88

72.4
0.86

84.3
0.76

3

6

0

0

5

4

6

3

2

0

3

6

0

0

1

1

0

0

0

0

1.9

1.4

2.5

2.8

35

[Table 2]
Table 2
ReferenceexampleComparative example

Composition
1
5

2
5

3
5

4
-

5
-

6
-

7
5

8
20

1
-

73.9

110.9

104.0

Average particle diameter r30 (μ m)
31.5 51.9 62.2 52.4 56.9 47.4 34.8
Particle diameter ratio (r30 / r15)
0.30 0.47 0.53 0.48 0.54 0.43 0.47
Mucosal irritation evaluation results (Evaluation results for 10 subjects in total)
Number of subjects who evaluated the mucosal
0
0
0
0
0
0
0
irritation as 1
Number of subjects who evaluated the mucosal
1
1
2
0
0
0
0
irritation as 2
Number of subjects who evaluated the mucosal
1
1
2
3
1
6
2
irritation as 3
Number of subjects who evaluated the mucosal
2
2
4
6
1
3
2
irritation as 4
Number of subjects who evaluated the mucosal
6
6
2
1
8
1
6
irritation as 5
Average score
4.3
4.3
3.6
3.8
4.7
3.5
4.4

53.7
0.48

40.4
0.39

0

5

0

4

0

1

2

0

8

0

4.8

1.6

3-(N-n-butyl-N-acetyl) aminopropionic acid ethylester
1-metylpropyl 2-(2-hydroxylethyl)-1-piperidine
515
carboxylatep-menthane-3,8-diol
15
N,N-diethyl-m-toluamide
5
1,3-butylene glycol
Appropriate Appropriate Appropriate Appropriate Appropriate Appropriate Appropriate Appropriate Appropriate
Anhydrous ethanol
amountamountamountamountamountamountamountamountamountTo be 100mL.
Total
Average particle diameter r15 (μ m)105.9 110.6 116.3 110.3 105.9 109.3

36

[Table 3]
Table 3
Example of embodiment
14
15
16
20
20
20
20
5
5
10
10

Composition
3-(N-n-butyl-N-acetyl) aminopropionic acid ethylester
1,3-butylene glycol
Purified water
Anhydrous ethanol

Appropriate
amountAppropriate
amountTotal
Spray weight (g)Adhesion weight (g)Adhesion ratio

1.39
0.22
15.9%

1.44
0.15
10.4%

37

Appropriate
amountComparative example
8
9
20
20
Appropriate
amountTo be 100mL.
1.24
1.30
0.23
0.025
18.6%
1.9%

Appropriate
amount1.13
0.1
8.9%