Patent Date
June 28, 2018
Court Osaka District Court,Right
26th Civil Division
Case number
2015 (Wa) 4292
- A case in which the court has accepted claims for an injunction and compensation
for damage, stating that a carbonate pack sold, etc. by Defendants falls within atechnical scope of the invention according to the patent right of Plaintiff (Title ofthe invention: CARBON DIOXIDE-CONTAINING VISCOUS COMPOSITION),
and the sales, etc. thereof and the sales, etc. of granules correspond to an act ofindirect infringement of the patent right.
Summary of the Judgment
This case is a case in which Plaintiff who owns a patent right titled "CARBONDIOXIDE-CONTAINING VISCOUS COMPOSITION" has claimed an injunction ofthe sales, etc. of two pack-type carbonate packs and granules and compensation fordamage, etc., alleging that two pack-type carbonate packs sold, etc. by Defendant falls
within a technical scope of the invention according to the patent right, and the sales,
etc. of the pack and the sales, etc. of the granules correspond to an act of indirect
infringement of the patent right.

The issues are: whether or not to fall within atechnical scope; whether or not indirect infringement applies; and the presence orabsence of reasons for invalidation.
The Patent is directed to a kit for obtaining a carbon dioxide-containing viscouscomposition to be used for pharmaceutical compositions or cosmetics.

Regardingthe language of "capable of retaining carbon dioxide in the form of bubbles" of thescope of claims, Defendants questions the content of carbon dioxide and alleges thatthe above language should be construed in a limited meaning, whereas the court
decision has determined that the above language should be construed as literally
meaning that a composition is capable of retaining carbon dioxide in the form ofbubbles in view of the description of the specification and prosecution history, etc.
Furthermore, the court has determined that Defendants' products fall within atechnical scope of the invention according to the patent right of Plaintiff, and indirect
infringement shall apply.
Further, Defendants have presented allegations of the invalidity of the patent due
to nonconformance to the support requirement and lack of the inventive step, but all
the allegations have been rejected.
Furthermore, since Plaintiff alleged a joint tort liability be accepted for every
commercial distribution of each product, this issue was also considered.

For a partof Defendants, the joint tort liability has been accepted, stating that there was1

objectively closely-associated cooperativity among a part of Defendants, whereas forthe most of Defendants, it has not been assumed.
Regarding an amount of damage on Plaintiff, damage under Articles 102,paragraphs (2) and (3) of the Patent Act was insisted.

Regarding damage under theparagraph (2), the Defendants' allegation of cost deduction was partially accepted,
whereas the allegation of the rebuttal to presumption was not recognized.

Further,regarding damage under the paragraph (3), while making reference to a result of aquestionnaire about a royalty fee for domestic businesses, considering thecircumstances leading to this infringement lawsuit, the court has found a reasonableroyalty rate and accepted a higher amount of damage for each product (Defendant).

2