Judgment rendered on June 28, 2018; Original received on the same date by Court Clerk
2015(Wa)4292

Case of Demand for Injunction against Infringement of Patent Right

Date of conclusion of oral argument: March 27, 2018
Judgment
Plaintiff Medion Research Laboratories Inc.
Plaintiff's representative Attorney at Law

Iichiro YAMADA

Plaintiff's representative Attorney at Law

Kyoko MATSUMOTO

Plaintiff's sub-agent Attorney at Law

Kazuhiko SHIBATA

Plaintiff's representative patent attorney

Keiya MIZUTANIAssistant in court, patent attorney

Junya TANAKA

Assistant in court, patent attorney

Kyoko SAKODA

Defendant: NeoChemir inc.
(Hereinafter referred to as "Defendant NeoChemir".)
Defendant's representative Attorney at Law

Jun TAKAHASHI

Defendant: COSMEPRO CO., LTD.
(Hereinafter referred to as "Defendant Cosmepro".)Defendant: Airica(Hereinafter referred to as "Defendant Airica".)
Defendant Chiara Macchiato(Hereinafter also referred to as "Defendant Chiara Macchiato".)Defendant: Rhythm Co., Ltd.
(Hereinafter referred to as "Defendant Rhythm".)
Defendant: AMPLY CO., LTD.
(Hereinafter referred to as "Defendant AMPLY".)
Defendant: Limited Liability Company SHIN
(Hereinafter referred to as "Defendant SHIN".)1

Defendant: Japan Cosme(Hereinafter referred to as "Defendant Japan Cosme".)Defendant: Wingsense Co., Ltd.
(Hereinafter referred to as "Defendant Wingsense".)Defendant: Cosme Bose
(Hereinafter referred to as "Defendant Cosme Bose".)Defendant: Clear noir
(hereinafter referred to as "Defendant Clear noir",
Hereinafter the above 10 parties are referred to as "Defendants Cosmepro et al.".)A litigation representative of the above 10 parties, Attorney at Law

Norio

MATSUMOTO
Main text
As per attachment, "List of Main text"
Facts and ReasonsNo. 1 Claims
As per attachment, "List of claims"
No. 2 Outline of the case, etc.
1 Outline of the case
The case is a case in which Plaintiff having each of the below-mentioned patentrights sought an injunction of the production and sales of the Defendant's products 1, 3
to 5, 8, 9, 11, 13 to 15, 17 and 18 under the provision of Article 100, paragraph (1) of
the Patent Act against Defendants, and demanded the disposal of the Defendant's
products under the provision of Article 100, paragraph (2) of the Patent Act, andclaimed compensation for damage on the grounds of tortious acts of patent rights
infringement primarily under Article 102, paragraph (2) of the Patent Act andsecondarily under paragraph (3) of the Patent Act, and claimed for the payment of any
default charges in a proportion of 5 percent per year prescribed in Civil Code from thelast date or later date of tortious acts to the date of the completion of payment, alleging
that: [i] carbonate packs described in the attachment "List of Defendants' products"2

(hereinafter referred to as "each of Defendant's products"), which are produced and soldby the Defendants or third parties, fall within a technical scope of the invention, andthe acts of production and sales of the carbonate packs correspond to a direct infringing
act according to a part of claims of the respective patent rights; [ii] the acts ofproduction and sales of each of Defendant's products correspond to an indirect
infringing act according to a part of claims of the respective patent rights (Article 101,
items (i) or (ii), and (iv) or (v) of the Patent Act); and [iii] the acts of the Defendant
NeoChemir's producing and selling granules used for a part of products correspond to
an indirect infringing act of a part of claims of the respective patent rights (item (i) or(ii) of the same article).

Further, Plaintiff distinguishes a primary claim and asecondary claim with respect to a claim for compensation for damage; however, bot hclaims have a subject-matter of a claim for compensation for damage caused by atortious act of patent right infringement.

Therefore, it can only be seen that Plaintiff

prioritizes an amount of damage and a ground of a computation of damages within thesame subject matter.
2 Basic facts (Facts without dispute between parties, or facts that can be easily
recognized from the evidence listed below or the overall gist of oral proceedings.

Notethat the identification of documentary evidence in the decision omits a branch number
if it includes all the branch numbers).
(1) Party concerned
A Plaintiff is a corporation that engages in research, development, production,and sales of pharmaceutical products and cosmetics.
B Defendant NeoChemir is a corporation that engages in the development andproduction, etc. of cosmetic products and quasi-pharmaceutical products, etc., anddevelops by itself, produces, and sells a two pack-mixing type carbon dioxidecontaining gel production kit, and produces and sells granules to be used for each of therespective Defendants' products to the other Defendant et al. or third parties.
C Defendant Cosmepro is a corporation that engages in production, production
and sales, and sales of cosmetic products and quasi-pharmaceutical products.
D Defendant Airica is a corporation that engages in production and sales ofcosmetic products and quasi-pharmaceutical products for cosmetics.
E Defendant Chiara Macchiato is a corporation that engages in production, sales,
import and export of cosmetic products.
F Defendant Rhythm is a corporation that engages in sales, mail-order business,and import and export of cosmetic products and health foods.
3

G Defendant AMPLY is a corporation that engages in production, sales, importand export, and research and development of cosmetic products, and production andsales of pharmaceutical products and quasi-pharmaceutical products.
H Defendant SHIN is a corporation that engages in planning, production,
wholesaling, retailing, mail-order utilizing internet, and import and export of cosmetic
products and quasi-pharmaceutical products.
I Defendant Japan Cosme is a corporation that engages in production, sales, andimport and export of cosmetic products, and sales and import and export of quasi pharmaceutical products.
J Defendant Wingsense is a corporation that engages in research anddevelopment, production, wholesaling, sales, and import and export of cosmetic
products.
K Defendant Cosme Bose is a corporation that engages in production, importand export, and sales etc. of cosmetic products.
L Defendant Clear noir is a corporation that engages in production, sales, andimport and export of cosmetic products.
(2) Patent rights owned by Plaintiff
A Patent right 1
Plaintiff has the patent rights (hereinafter referred to as "patent right 1"; theinvention according to Patent 1 is referred to as "the Invention 1", and the description
attached to the application of Patent 1 is referred to "description 1".) according to thefollowing patent (hereinafter referred to as "the Patent 1").

Description 1 (as far as

page 2, line 39 to page 11, line 30) is as per the patent publication of Patent 1 attachedto the decision (Exhibits Ko 1, 2).
Patent number: No. 4659980
Title of invention: Carbon dioxide-containing viscous composition
Registered Date: January 7, 2011
Japanese Patent Application No. 2000-520135
International Application Date: October 5, 1998
Priority claim No.: Japanese Patent Application No. 1997-305151
Priority date: November 7, 1997
The scope of claims: As per patent publication of Patent 1 attached to thedecision
B Patent right 2
Plaintiff has the patent rights (hereinafter referred to as "patent right 2", and4

together with the patent right 1, referred to as "the respective patent rights", and theinvention according to Patent 2 is referred to as "Invention 2", and together with
Invention 1, is referred to as "the respective invention", and the description attached tothe application of Patent 2 is referred to as "description 2", and together with description
1, referred to as "the respective descriptions") according to the following patent(hereinafter referred to as "Patent 2", and together with Patent 1, referred to as "therespective patents").

Description 2 (as far as [0001] to [0062]) is as per the patentpublication of Patent 2 attached to the decision (Exhibits Ko 3, 4).
Patent number: No. 4912492
Title of invention: Carbon dioxide-containing viscous composition
Registered Date: January 27, 2012
Japanese Patent Application No. 2010-199412
Application Date: September 6, 2010
Indication of Divisional Application: Divisional of Japanese Patent Application
No. 2000-520135
Original filing date: October 5, 1998
Priority claim No.: Japanese Patent Application No. 1997-305151
Priority date: November 7, 1997
The scope of claims: As per patent publication of Patent 2 attached to thedecision(3) Separate description of the constituent features according to Patent 1
A The constituent features of the Invention according to Claim 1 of Patent 1(hereinafter referred to as "Invention 1-1") are separately described as follows(hereinafter referred to as "constituent features 1-1A", etc., and the constituent featuresof the respective inventions are collectively referred to as "constituent feature 1-1" insome cases.
1-1A

The same shall apply hereinafter.).
A kit for obtaining a carbon dioxide-containing viscous composition

to be used for cosmetics for the improvement of partial adiposeness or pharmaceuticalcompositions for the treatment of athlete's foot, atopic dermatitis, or bedsore, consisting
of:
1-1B

1) a combination of an aqueous viscous composition comprisingcarbonate and sodium alginate with granules including an acid (subtle granules,
powders); or
2) a combination of composite granules (subtle granules, powders) comprising acarbonate and an acid with an aqueous viscous composition comprising sodium alginate,
5

1-1C

an aqueous viscous composition is characterized in that it can retaincarbon dioxide in the form of bubbles,
1-1D

A kit capable of obtaining said carbon dioxide-containing viscouscomposition comprising the carbon dioxide in the form of bubbles by reacting carbonate
and acid in an aqueous viscous composition,
B The constituent features of the invention according to Claim 4 of Patent 1(hereinafter referred to as "Invention 1-4")
are separately described as follows:
1-4A

wherein the aqueous viscous composition comprises 2 % by weightor more of sodium alginate.
1-4B

The kit of any one of Claims 1 to 3,

C The constituent features of the invention according to Claim 5 of Patent 1(hereinafter referred to as "Invention 1-5")
are separately described as follows:
1-5A

wherein the aqueous viscous composition comprises 87 % by weightor more of water.
1-5B

The kit of any one of Claims 1 to 4,

D The constituent features of the invention according to Claim 7 of Patent 1(hereinafter referred to as "Invention 1-7")
are separately described as follows:
1-7A

comprising a carbon dioxide-containing viscous composition

capable of obtaining the kit of any one of Claims 1 to 5.
1-7B

Cosmetics for the improvement of partial adiposeness.

E The constituent features of the invention according to Claim 8 of Patent 1(hereinafter referred to as "Invention 1-8")
are separately described as follows:
1-8A used for the improvement of partial adiposeness of the face, leg, arm,
abdomen, flank, back, neck, or jaw.
1-8B Cosmetics of Claim 7,
F The constituent features of the invention according to Claim 9 of Patent 1(hereinafter referred to as "Invention 1-9")
are separately described as follows:
1-9A

A method for preparing a carbon dioxide-containing viscouscomposition to be used for cosmetics for the improvement of partial adiposeness or
pharmaceutical compositions for the treatment of athlete's foot, atopic dermatitis, or
bedsore, by use of
6

1-9B

1) an aqueous viscous composition comprising carbonate andsodium alginate, and granules including an acid (subtle granules, powders); or
2) composite granules (subtle granules, powders) comprising a carbonate and an acid,and an aqueous viscous composition comprising sodium alginate;
Comprising the step of preparing a carbon dioxide-containing aqueous viscouscomposition comprising the carbon dioxide in the form of bubbles by reacting carbonate
and acid in an aqueous viscous composition,
1-9C

wherein the aqueous viscous composition can retain the carbon

dioxide in the form of bubbles.
1-9D

A method of preparing a carbon dioxide-containing viscouscomposition,
G The constituent features of the invention according to Claim 12 of Patent 1(hereinafter referred to as "Invention 1-12") are separately described as follows:
1-12A

wherein the aqueous viscous composition comprises 2 % by weightor more of sodium alginate.
1-12B

The method for preparation according to any one of Claims 9 to 11,

H The constituent features of the Invention according to Claim 13 of Patent 1(hereinafter referred to as "Invention 1-13") are separately described as follows:
1-13A

wherein the aqueous viscous composition comprises 87 % by weightor more of water.
1-13B

The method for preparation according to any one of Claims 9 to 12,(4) Separate description of the constituent features according to Patent 2
A The constituent features of the Invention according to Claim 1 of Patent 2(hereinafter referred to as "Invention 2-1") are separately described as follows(hereinafter referred to as "constituent features 2-1A" etc.):
2-1A

A kit for obtaining a carbon dioxide-containing viscous composition

to be used for pharmaceutical compositions or cosmetics, consisting of:
2-1B1) a combination of an aqueous viscous composition comprisingcarbonate and sodium alginate with granules, subtle granules, or powders comprisingan acid;2) a combination of an aqueous viscous composition comprising an acid and sodium
alginate with granules, subtle granules, or powders comprising a carbonate; or3) a combination of composite granules, subtle granules, or powders comprising acarbonate and an acid with an aqueous viscous composition comprising sodium
alginate;
2-1C

characterized in that the aqueous viscous composition is capable of7retaining carbon dioxide in the form of bubbles,
2-1D

A kit capable of obtaining said carbon dioxide-containing viscouscomposition comprising the carbon dioxide in the form of bubbles by reacting carbonate
and acid in an aqueous viscous composition,
B The constituent features of the invention according to Claim 4 of Patent 2(hereinafter referred to as "Invention 2-4") are separately described as follows:
2-4A

wherein the aqueous viscous composition comprises 2 % by weightor more of sodium alginate.
2-4B

The kit of any one of Claims 1 to 3,

C The constituent features of the invention according to Claim 5 of Patent 2(hereinafter referred to as "Invention 2-5")
are separately described as follows:
2-5A

wherein the aqueous viscous composition comprises 87 % by weightor more of water.
2-5B

The kit of any one of Claims 1 to 4,

D The constituent features of the invention according to Claim 7 of Patent 2(hereinafter referred to as "Invention 2-7")
are separately described as follows:
2-7A

comprising a carbon dioxide-containing viscous composition

capable of obtaining the kit of any one of Claims 1 to 5.
2-7B

Cosmetics(5) Defendants' acts and the respective Defendants' products
A Defendants (excluding Defendant NeoChemir) NATURELAB. CO., LTD.
(hereinafter referred to as "NatureLab"), LEVANTE Co., Ltd. (hereinafter referred toas "LEVANTE"), ESCO (hereinafter referred to as "ESCO"), Acnes Labo Inc.
(hereinafter referred to as "Acnes Labo"), CEFINE (hereinafter referred to as"CEFINE"), Wamu Corporation (hereinafter referred to as "Wamu"), SUHADACOSMETICS CO., LTD. (Hereinafter referred to as "SUHADA COSMETICS"), andAVON PRODUCTS CO., LTD (hereinafter referred to as "AVON PRODUCTS") haveproduced and sold Defendants' products 1 to 9 and 11 to 18 as described in the column
of "manufacturer and distributor, etc., " of "List of Defendants' products" of theattachment after the registered date of Patent 1 of January 7, 2011 as manufacturer anddistributor, general sales agent, or seller.
Further, TRUST WINGS Co., Ltd. (Hereinafter referred to as "TRUST WINGS") has
sold Defendant's products 3 and 4 immediately after the same date.
8

B Defendant NeoChemir has produced and sold Defendant's products 1, 3, 4, 8,
and 15, and produced the granules to be used for Defendant's products 2, 5, 6, 7, 9, 11
to 14, and 16 to 18, and these were sold to Manufacturer and distributor of the respective
products of Defendant et al. or third parties.
C All the respective Defendants' products have been sold with a set of two-packof a gel and a granule, and the mixed component is as per the description of the columns"gels" and "granules" of the attachment "List of Defendants' products".

All therespective Defendants' products are cosmetic kits for pack to be used by mixing gelscomprising sodium hydrogen carbonate, sodium alginate, and water with granules
comprising malic acid (Exhibits Ko 7, 8, 22, 26, 41).
D A gel of the respective Defendant's products are an aqueous viscouscomposition, sodium hydrogen carbonate is a carbonate, and malic acid is an acid.
Therefore, the Defendant's products satisfy the constituent features 1 -1B and 2-1B ofInvention 1.
3 Issues(1) Whether the respective Defendants' products fall within a technical scope ofthe respective inventions (the sufficiency of constituent features 1-1C and 2-1C) (Issue
1-1)(2) Whether the respective Defendants' products fall within a technical sco pe ofthe respective inventions, and indirect infringement (the sufficiency of constituent
features 1-1A, etc.) (Issue 1-2)
(3) Whether the respective Defendants' products cause the functions and effectsof the respective inventions (Issue 2)(4) Whether the respective patents should be invalidated as a result of a trial forpatent invalidation (Issue 3)
A

Incompletion of the respective inventions (Issue 3-1)

B

Nonconformance to support requirement (Issue 3-2)

C

Nonconformance to enablement requirement (Issue 3-3)

D

Lack of Inventive Step over a main cited reference of Example 9 of

Kanebo publication (Kanebo Example Invention) (Issue 3-4)
E

Lack of Inventive Step over a main cited reference of Comparative

Example 2 of Kanebo publication (Kanebo Comparative Example Invention) (Issue 35)(5) Presence or absence of negligence of Defendants Cosmepro et al. (Issue 4)(6) Establishment of joint tort (Issue 5)(7) Amount of loss to Plaintiff (Issue 6)
9

A

Article 102, paragraph (2) of the Patent Act (Issue 6-1)

B

Article 102, paragraph (3) of the Patent Act (Issue 6-2)

No. 3 Allegation of issues by the parties
1 Issue 1-1 (the respective Defendants' products fall within a technical scope ofthe respective inventions (the sufficiency of constituent features 1-1C and 2-1C))(Plaintiff's allegation)(1) The respective inventions are the inventions of a kit consisting of a
combination of an aqueous viscous composition (gel) comprising carbonate and sodium
alginate with granules comprising an acid.

The inventions are characterized in that an"aqueous viscous composition comprising sodium alginate" can generate carbon
dioxide therein, and suppresses the diffusion of generated carbon dioxide into the air,which allows for the sealing of carbon dioxide in the form of bubbles.
Specifically, the technical meaning of the constituent elements of "retain carbon
dioxide in the form of bubbles" in constituent features 1-1C and 2-1C lies in suppressing
the diffusion of generated carbon dioxide into the air to retain carbon dioxide in theform of bubbles in an aqueous viscous composition.

It is reasonable to construe thatthe constituent features are satisfied should an aqueous viscous composition have aviscosity to the extent that can retain carbon dioxide in the form of bubbles for a certain
time when a user is scheduled to use products.
(2) All the respective Defendants' products contain a certain amount of sodium
alginate in an aqueous viscous composition, so as to cause viscosity suitable forretaining carbon dioxide in the form of bubbles, and are designed to retain the generated
carbon dioxide in the form of bubbles in the aqueous viscous composition.

Further,mixing gels and granules of the respective Defendants' products may result in thegeneration of carbon dioxide in the form of bubbles in a gel, so that a generated carbon
dioxide in the form of bubbles may be retained in the form of bubbles in a gel after
mixing for about 30 minutes.
Therefore, the respective Defendant's products are obviously ones "capable ofretaining a carbon dioxide in the form of bubbles", and the respective Defendant's
products satisfy constituent features 1-1C and 2-1C.
(3) Defendants' allegation set forth below
A The respective inventions are inventions that aim to retain dissolved carbon
dioxide in an aqueous viscous composition in a high concentration by suppressing the
diffusion into the air of carbon dioxide generated in an aqueous viscous composition.
The inventions premise that not all generated carbon dioxide is prese nt in the form of
bubbles, but a certain amount of carbon dioxide is dissolved in a gel.
10

Further, theabove constituent features only specify that carbon dioxide can be retained in the formof bubbles in an aqueous viscous composition, but it is only a discussion without
relation to the above constituent features as to in what manner carbon dioxide isabsorbed transdermally.
Further, gel agents in the respective Defendants' products have a viscosity
capable of retaining carbon dioxide in the form of bubbles by comprising a viscous
agent such as sodium alginate together with water.

The gel corresponds to an aqueous

viscous composition "capable of retaining carbon dioxide in the form of bubbles" asrecited in Inventions 1-1C and 2-1C.

Defendants' allegation opposed to theaforementioned allegation is negated and refuted.
B Note that one with an increase rate in volume of 30% or less is described as"0" in the assessment of bubbling property in the examples of the description, but thisis only a relative barometer for the comparison of bubbling properties of the pluralityof examples.

It cannot be said that one with an assessment of "0" does not cause theeffects of the respective inventions.

If a preparation should be conducted so that theextent of bubbling properties (an increased rate in volume) is to decrease the increase
rate in volume to 30% or less, it does not mean that the function and effect of therespective inventions are not caused, but a negative assessment is made in the respective
descriptions with regard to ones with an increase rate of volume of 30% or less.
(4) As aforementioned, the respective Defendants' products satisfy constituent
features 1-1C and 2-1C.
(Defendants' allegation)(1) Background, Disclosure of the Invention, and best mode for Carrying Out theInvention of [Detailed Description of the Invention] of description 1 (hereinafter thesedescriptions of description 1 are simply described as "Background art" etc.) andparagraphs [0004] to [0006], [0017], [0032], and [0066] of description 2 (hereinafter aparagraph number of description 2 may be simply described with parentheses in somecases) state that a pack utilizing carbonate gas or a foaming effect of carbonate gas
generating substance is well-known in cosmetics for facial beauty treatment (This isevident from many prior art documents (See Exhibit Otsu E all 3 to 5)).

According to

Plaintiff's allegation in the prosecution history of the respective Patents, the respective
inventions are characterized in the foaming and sustained bubbles of the respective
descriptions, so that a sufficient amount of carbon dioxide in the form of bubbles canbe absorbed transdermally in a sustained manner, and as a result of carbon dioxide in
the form of bubbles effectively acting on an applied site, blood circulation etc. arepromoted to cause an epoch-making therapeutic effect that has never seen before.
11

Further, the respective inventions are characterized in that sodium alginate is added inadvance to an aqueous solution to form a gel for the purpose of "retaining" carbon
dioxide in the form of bubbles.
Further, a characteristic point different from prior art of the respective inventions
lies in that the respective inventions cause the effects of the respective descriptions byforming a viscous composition by "preliminarily" mixing sodium alginate with anaqueous composition including carbonate before the generation of carbon dioxide toretain bubbles of generated carbon dioxide without breaking bubbles, and effectively
retaining carbon dioxide in the form of bubbles as compared to a carbon dioxide
composition without mixing sodium alginate, to supply a sufficient amount of bubblingcarbon dioxide to a subcutaneous tissue.
In view of the above, "capable of retaining carbon dioxide in the form of bubbles"
means "retaining carbon dioxide in the form of bubbles so that a sufficient amount of
bubbling carbon dioxide may be supplied to a subcutaneous tissue in which bubbling isobserved sustainably and sufficiently to the extent that may cause the effects of therespective descriptions such as skin improving action and partial adiposeness improving
effects".

The term "sustainably and sufficiently" used herein means "to the extent that

may cause the effects of the respective descriptions such as skin improving action andpartial adiposeness improving effects".

For this goal, at least "sufficient and sustained

bubbling" of the respective description should be recognized.
(2) In the respective inventions, "aqueous viscous composition is characterize din that it may retain carbon dioxide in the form of bubbles" definitely described in thescope of claims does not simply mean any form of bubbles is present in a gel.
Specifically, regarding the respective inventions, carbon dioxide retained in the formof bubbles and a viscous composition including the same are described in thedescription as satisfying two barometers of bubbling and sustainability.

On thecontrary, a composition not satisfying these barometers is not described as causing thefunction and effect of the respective inventions even if carbon dioxide bubbles should
be present.
Further, some sort of quantification should be naturally required in theconstruction of constituent features 1-1C and 2-1C due to the necessity of distinction
from prior art.

Further, it is only a test example in the respective descriptions that

supports such a "quantification".

Further, it is extremely natural to think that the one

with evaluation criterion 1 in the test example of an increase rate of 30% or less; i.e.,
one with an evaluation of bubbling "0", includes prior art that may not achieve the effectof the respective inventions due to an insufficient retained amount of carbon dioxide,12

which does not fall within a technical scope of the respective inventions (excluded fromthe scope of the respective inventions, and thus an enforcement is not permitted).
(3) When it comes to bubbling of the respective Defendants' products, the volume
increase rate of many of them is only 10% or so.

It remains 27% at the most.

are ranked as "0" of the above evaluation criterion 1.

Both

Therefore, the respective

Defendants' products neither achieve massaging effect (blood circulation promotion)
due to carbon dioxide in the form of bubbles nor cause the effects described in therespective descriptions.
(4) Therefore, the respective Defendant's products are not ones "capable ofretaining carbon dioxide in the form of bubbles", nor do the respective Defendant's
products satisfy the constituent features 1-1C and 2-1C.
2 Issue 1-2 (Whether the respective Defendants' products fall within a technicalscope of the respective inventions, and indirect infringement (the sufficiency ofconstituent feature 1-1A, etc.))(Plaintiff's allegation)(1) The sufficiency of constituent feature 1-1A
The respective Defendants' products are products that have an activation of fat
metabolism and a partial slimming effect such as facial slimming, facial lifting up, andslimmed face contour

Commercial advertisements have been created for theseproducts in product brochures and on the internet to emphasize a partial slimming effect.
Further, it was widely-known to consumers that a carbonate pack (carbonate gas pack)
had a partial slimming effect and a facial contour slimming effect.

On a website ofDefendant NeoChemir, who is a developer of the respective Defendants' products, it isheavily promoted that a general carbonate gas pack has a facial contour slimming effectand a partial slimming effect.

Therefore, the respective Defendants' products a re kits

for providing a gel containing carbon dioxide to be used as a gel cosmetic having apartial slimming effect such as activation of fat metabolism, improvement, lift up, andsmaller face.

These kits correspond to "partial adiposeness improvement" of

constituent feature 1-1A, and gel cosmetics prepared from the respective Defendants'
products obviously correspond to "cosmetics for improvement of partial adiposeness".
In addition to the above, in view of the aforesaid allegation, the respective
Defendants' products satisfy constituent feature 1-1A.
(2) The sufficiency of constituent feature 1-1D
In view of the aforesaid allegation, the respective Defendants' products satisfy
constituent feature 1-1D.

Therefore, the respective Defendants' products satisfy

constituent feature 1-1, and fall within a technical scope of Invention 1-1.
13

(3) The sufficiency of constituent features 1-4 and 1-5
In view of the components and structures of the respective Defendants' products,
a gel comprises 2 % by weight or more of sodium alginate and 87 % by weight or moreof water.

Therefore, the respective Defendants' products satisfy constituent features

1-4 and 1-5, and fall within a technical scope of Inventions 1-4 and 1-5.
(4) Indirect infringement of Invention 1-7
The respective Defendants' products have been sold as a kit of a gel and a granule.
These products are intended to mix two packs by the consumer himself/herself who haspurchased the products to produce a gel cosmetics for use.

In the respective

Defendants' products, there is no use other than the production of cosmetics by mixing
two packs.

Further, it is obvious that two-pack kit is essential for the solution ofproblems to be solved by Invention 1-7.
Further, Defendants are selling products, while positively advertising that therespective Defendants' products have a partial slimming effect.

It is naturally

recognized that the respective Defendants' products are to be used for the production of"cosmetics for the improvement of partial adiposeness".
Therefore, the act of producing and selling the respective Defendants' products
corresponds to an act of indirect infringement of Invention 1-7 (Article 101, item (i) or(ii) of the Patent Act).
(5) Indirect infringement of Invention 1-8
The respective Defendants' products have been sold as a kit of a gel and a granule.
Cosmetics produced by mixing both agents are mainly used for the improvement ofpartial adiposeness of the face.

Therefore, the act of producing and selling therespective Defendants' products corresponds to an act of indirect infringement of
Invention 1-8 (Article 101, item (i) or (ii) of the Patent Act).
(6) Indirect infringement of Invention 1-9
The respective Defendants' products have been sold as a kit of a gel and a granule.
These products are intended to mix two packs by the consumer himself/herself who haspurchased the products to prepare a gel cosmetics including carbon dioxide for use.

In

the respective Defendants' products, there is no use other than the preparation of gelcosmetics including carbon dioxide by mixing two packs.

Further, it is obvious that

two-pack kit is essential for the solution of problems to be solved by Invention 1 -9.
Further, Defendants are selling products, while positively advertising that therespective Defendants' products have a partial slimming effect.

It is naturally

recognized that the respective Defendants' products are to be used for the preparationof "cosmetics for the improvement on partial adiposeness".
14

Therefore, the act of producing and selling the respective Defendants' products
corresponds to an act of indirect infringement of Invention 1-9 (Article 101, item (iv)or (v) of the Patent Act).
(7) Indirect infringement of Invention 1-12
The respective Defendants' products contain 2 % by weight or more of sodium
alginate in a gel.

Therefore, the act of producing and selling the respective

Defendants' products also corresponds to an act of indirect infringement of Invention
1-12 (Article 101, item (iv) or (v) of the Patent Act).
(8) Indirect infringement of Invention 1-13
The respective Defendants' products contain 87 % by weight or more of water ina gel.

Therefore, the act of producing and selling the respective Defendants' products

corresponds to an act of indirect infringement of Invention 1-13 (Article 101, item (iv)or (v) of the Patent Act).
(9) The sufficiency of constituent feature 2-1A
In view of the aforesaid allegation 1, the respective Defendants' products satisfy
constituent feature 2-1A.
(10) The sufficiency of constituent feature 2-1D.
In view of the aforesaid allegation 1, the respective Defendants' products satisfy
constituent feature 2-1D.

Therefore, the respective Defendants' products satisfy

constituent feature 2-1, and fall within a technical scope of Invention 2-1.
(11) The sufficiency of constituent features 2-4 and 2-5
The respective Defendants' products comprise a gel comprising 2 % by weightor more of sodium alginate and 87 % by weight or more of water.

Therefore, therespective Defendants' products satisfy constituent features 2-4 and 2-5, and fall withina technical scope of Inventions 2-4 and 2-5.
(12) Indirect infringement of Invention 2-7
The respective Defendants' products are sold as a kit of a gel and a granule, andare intended to mix two packs by the consumer himself/herself who has purchased the
products to produce a gel cosmetics for use.

In the respective Defendants' products,

there is no use other than the production of cosmetics by mixing two packs.

Further,

it is obvious that two-pack kit is essential for the solution of problems to be solved by
Invention 2-7.
Further, Defendants recognize that the respective Defendants' products are used
for the production of "cosmetics".
Therefore, the act of producing and selling the respective Defendants' products
corresponds to an act of indirect infringement of Invention 2-7 (Article 101, item (i) or15

(ii) of the Patent Act).
(13) Regarding the act of production and sales of granules by Defendant
NeoChemir Defendant NeoChemir is producing and selling granules of
Defendant's products 2, 5, 6, 7, 9, 11 to 14, and 16 to 18.
intended for selling in combination with a gel.

The granules are products

The above Defendant's products

consisting of granules and gels do fall within a technical scope of Inventions 1 -1, 1-4,
and 1-5 and Inventions 2-1, 2-4, and 2-5.

Further, the granules are not intended forany use other than the use in combination with a gel, but only correspond to use in the
production of the above Defendant's product.

Therefore, the act of producing andselling the respective Defendants' products corresponds to an act of indirect
infringement of the respective inventions (Article 101, item (i)) of the Patent Act.
Further, Inventions 1-1, 1-4, and 1-5 and Invention 2-1, 2-4, and 2-5 areinventions of kit in combination with an aqueous viscous composition and a granule.
Therefore, granules produced by Defendant NeoChemir correspond to ones essen tial
for the solution to the problem to be solved by these inventions.

Further, Defendant

NeoChemir is in a position of technically collaborating with the other Defendants andconducting the development of carbonate gel pack.

Thus, Defendant NeoChemir

naturally recognizes that granules provided by itself are utilized for the above
Defendants' products.

Therefore, the act of producing and selling the respective

Defendants' products corresponds to an act of indirect infringement of the respective
inventions (Article 101, item (ii) of the Patent Act).
(Defendants' allegation)
Defendant NeoChemir recognizes that the granules of the products alleged by
Plaintiff are produced and sold, and the remaining allegation by Plaintiff is negated andrefuted.
At least in recent times, in a similar manner to carbonate spring, it is supposedthat carbonate gas "pack" with carbonate gas concentration of not more than 0.2% does
not have a partial slimming effect, but only have a swelling removing effect.

Further,the respective Defendants' products are cosmetics that have effects as per described in
the advertisement.

Not all the cosmetics are cosmetics for the improvement of partial

adiposeness.
3 Issue 2 (Whether the respective Defendants' products cause the functions andeffects of the respective inventions)(Defendants' allegation)
The respective Defendants' products have been developed with a concept of"retaining carbon dioxide in the form of bubbles may become a barrier for transdermal
16absorption of carbon dioxide".

The respective Defendants' products try to dissolve

generated carbon dioxide into a gel, not in the form of bubbles.

Thus the technicalidea is fundamentally different from that of the respective inventions.
Further, granules of the respective Defendants' products contain lactose.

This

has an effect of slowly releasing an acid into an aqueous viscous composition, andsuppresses the generation of carbon dioxide in the form of bubbles, thereby inhibiting
the effect of the respective inventions.
As aforementioned, bubbling of the respective Defendants' products is ranked as"0" in evaluation criterion 1 of the test example, which should be evaluated as notcausing the function and effect of the respective inventions.

It can never be said that

one not causing the function and effect should fall within a technical scope of therespective inventions.
(Plaintiff's allegation)
Defendants' allegation is negated and refuted.

In view of the aforesaid item 1(Plaintiff's allegation), the respective Defendants' products cause the function and effectof the respective inventions.
4 Issue 3-1 (Incompletion of the respective inventions)(Defendants' allegation)(1) The respective descriptions describe a test example together with examples.
The respective test examples demonstrate that the respective inventions cause a desired
technical effect.

It is indefinite as to what kind of test result serves as a basis.

The

test examples do not have a comparative test, nor do they have a description ofevaluation method, prosecution observation, etc. and significantly lack specificity.
Therefore, the above test examples have no credibility as a whole.

It is indefinite as

to whether or not the respective test examples were actually implemented.
Further, even if an experimentation or a test should be conducted, it is indefinite
as to whether compositions used in the respective test examples were really therespective compositions described in the examples.
Furthermore, in a case where an experiment or a test was conducted, there is no
submission of original data of the respective test examples normally present, or
documentation, etc. of subject information.

In view of the aforesaid fact, it cannot bebelieved that the results of the respective test examples are accurately described in therespective descriptions.
Further, it cannot be seen from the descriptions other than the respective test
examples in the respective descriptions that a technical effect expected from therespective inventions was actually confirmed for a composition, and even at the present
17time, there is no fact that a therapy utilizing the efficacy of carbon dioxide is widelypracticed for various skin diseases, nor that such therapeutic agent is widely used.
(2) Therefore, Plaintiff fails to establish as a Patentee that the respective
inventions can cause a desired technical effect, and thus the inventions are incomplete
as inventions, and thus the inventions do not correspond to the "invention" as specified
in Article 29, paragraph (1) of the Patent Act.

Therefore, the respective inventions

have reasons for invalidation of incomplete invention.
(Plaintiff's allegation)
The respective descriptions have 33 test examples.

All of these test examples

accurately describe the results of the tests that the inventors appropriately conducted byutilizing compositions of the examples of the description.

Further, original data withrespect to the test in the description is a common descriptive method.
Therefore, the respective inventions are completed.
Note that Defendant et al. alleges the incompletion of the respective inventions
as a defense under Article 104-3, paragraph (1) of the Patent Act.

Therefore, a burdenof proof is obviously on Defendant with regard to the existence or non-existence ofsuch reasons for invalidation.
5 Issues 3-2 (Support requirement)(Defendants' allegation)(1) The respective descriptions have 299 examples.
experimental result of bubbling and sustainability.

There is only an

It is indefinite as to whether or not

the problem of the respective inventions to remedy a number of diseases, etc. in therespective descriptions may be solved.
In this regard, the respective descriptions have 33 test examples.

Among them,

there is some description that a therapeutic effect was confirmed for a specific symptom(only one).

There is no test example showing that all the problems to be solved by therespective inventions have been solved.

Further, the examples used in the test

example are only 1, 8, 18, 20, 31, 135, 170, 296, 297, and 298.

It is indefinite as towhether or not there is a remedial effect on a specific symptom in the other examples.
If the respective inventions are completed on the basis of medical findings, satisfying
the support requirement require description to the extent of describing a result
according to a pharmacological test.

The respective descriptions are totally silent

about that.
Furthermore, the respective descriptions are silent about action mechanism(mechanism) of carbon dioxide in the form of bubbles healing the above diseases.

Itis possible that any factor other than transdermal absorption of carbon dioxide in the18

form of bubbles acts on healing of the above diseases.
In addition to the above, in view of the description of the aforesaid it em 4
(Defendants' allegation), it can never be said that a person skilled in the art could
recognize that all the examples could solve many problems listed in the respective
inventions even if a target for consideration should be limited to the examples.
Needless to say, it cannot be said that a person skilled in the art could recognize fromthe statement of the detailed explanation of the invention and common generalknowledge that the respective inventions, without limitation to the compositions ofcarbonate and acid, could solve the problem.
Even if a person skilled in the art could recognize that many problems to besolved by the respective inventions might be solved, it holds true for only the invention
disclosed as a specific example.

Therefore, a conclusion that the support requirement

is not satisfied does not change.
(2) In addition to the respective descriptions, a reference is made to the statementin prosecution histories of the respective Patents of Plaintiff, even if the test examplesof the respective descriptions were true, the significant function and effect of therespective inventions demonstrated by the test example cannot be logically explained
from a simple blood circulation promoting effect.
functioning.

Another extra factor might beConsequently, this "extra factor" or specific constituent elements

causing the same should be recited in the scope of claims as matters specifying theinvention, whereas not only the scope of the claims but also the respective descriptions
fail to describe such constituent elements with respect to the respective Patents.
Therefore, even if a description of test example were true, the recitation of thescope of claims of the respective patents has a broader scope as compared to theinvention described in the respective descriptions.

Thus a person skilled in the art

could not recognize that a problem might be solved.
(3) As seen above, the respective inventions have a reason for invalidation of
nonconformance to the support requirement.
(Plaintiff's allegation)(1) The description 1 discloses a result of 33 test examples which demonstrateefficacy on diseases recited in the scope of claims.

Thus Invention 1 obviously

satisfies the support requirement.
Further, regarding the above argument by Defendants, in order that a person
skilled in the art could recognize that a problem to be solved by the invention may besolved, it is unnecessary to know an action mechanism (mechanism) for healing thediseases, etc.

The description of the action mechanism cannot be a condition for
19

satisfying the support requirement.

Further, the detailed description of the inventionof Patent 1 discloses an example in which sodium hydrogen carbonate and sodium
carbonate are used.

When another carbonate is used, similarly to sodium hydrogencarbonate and sodium carbonate, a person skilled in the art could have easily recognizedin view of the common general knowledge at that time that the mixture with an acidresults in the generation of carbon dioxide.
(2) The detailed description of the invention of description 2 describes a problem
to be solved by the invention ([0004], [0005]).

An efficacy and effect of carbon

dioxide-containing viscous composition is shown as a means for solving the problem([0006]).

A test result is disclosed as a test example for representative diseases, etc.

While a test result is not described for all diseases, it can be said that the diseases are
obviously healed or alleviated by "a suppressing action on itching for which anantihistamic agent and antiallergic agent, non-steroidal antiinflammatory agent andsteroidal agent for external use are ineffective, anti-inflammatory action, wound healing
promoting action, skin improving effect, partial adiposeness dissolving action, andtransdermal absorption promoting effect".

Therefore, the efficacy and effect of carbon

dioxide-containing viscous composition are described in description 2.

In view of thecommon general knowledge as of the filing, a person skilled in the art could easily
recognize that a healing effect is caused for the other diseases for which a test result is
not described, similar to the diseases for which a test result is described.
(3) In addition to the above, according to the description of the aforesaid item 4(Plaintiff's allegation), it is obvious that the respective patents satisfy the support
requirement.
6 Issues 3-3 (Violation of Enablement Requirement)(Defendants' allegation)(1) The respective inventions list healing, etc. of many diseases as a use, whereas
it should be construed that the Detailed Description of the Invention provides
description of inventions for defining a use over such a wide range to the extent that
supports the fact that a desired function and effect of the invention is caused for generaluse.
(2) According to the disclosure of the invention of description 1 and Best Mode
for Carrying Out the Invention and the descriptions of [0006], [0017], and [0066],
desired function and effect of the respective inventions are to heal the above diseases,
etc. by sustainably retaining a large amount of carbon dioxide in the form of bubbles ina carbon dioxide-containing viscous composition.
But the respective descriptions only describe the names of substances
20

constituting the composition of the respective inventions and their compositions, or the
method for the use of the substances.
above function and effect.

They are silent about the mechanism of the

Further, even if the above diseases were healed, it might

possibly be attributed to any factor other than transdermal absorption of carbon dioxidein the form of bubbles.
(3) In addition to the above, in view of the description of the aforesaid items 4
and 5 (Defendants' allegation), it cannot be said that the respective description describes
to the extent that supports the fact that the above function and effect are caused formany general diseases listed in the respective inventions.

Thus the respective

inventions have reasons for invalidation of nonconformance to the enablement
requirement.
(Plaintiff's allegation)
The respective descriptions describe the object of invention (background of thedescription 1, [0004], [0005]), show the efficacy and effect of a carbon dioxide containing viscous composition (the disclosure of the Invention of description 1,[0006]), disclose a test result for representative diseases, and demonstrate that there isa healing effect on the diseases (test examples 1 to 33).
The respective descriptions fail to describe a test result for all the diseases
described in the description; however, they describe the efficacy and effect on a carbon
dioxide-containing viscous composition.

Therefore, it is easily recognizable that ahealing effect is caused for the other diseases, similar to the diseases for which a test
result is described.
In addition to the above, according to the description of the aforesaid items 4 and
5 (Plaintiff's allegation), it can be said that a person skilled in the art could sufficiently
implement the respective inventions with the respective descriptions, and it is obviousthat the respective patents satisfy the enablement requirement.
7 Issue 3-4 (lack of inventive step over a main cited reference of Kanebo's
publication, Example 9 (Kanebo example invention))(Defendants' allegation)(1) Technical meaning of Invention 1-1
According to the result of a verification experiment (Exhibit Otsu A2), carbon
dioxide bubbles do not contribute to transdermal absorption of carbon dioxide, butrather interfere with the action.

Further, according to the result of the verifica tion

experiment (Exhibit Otsu A3), a transdermal absorption rate of carbon dioxide is not
significantly increased, nor may carbon dioxide bubbles be significantly increased as
an aqueous viscous composition in which sodium alginate is preliminarily mixed w ith
21water.
(2) Lack of Inventive step of Invention 1-1
Given the fact of the above item (1), after consideration of well -known art
described in the publicly known document, Invention 1-1 was easily conceivable as of
the filing on the basis of Example 9 (hereinafter referred to as "Kanebo example
invention") of the publication of Japanese Unexamined Patent Application Publication
No. 1988-310807 (Exhibit Otsu A102 and Exhibit Otsu E all 6, hereinafter referred toas "Kanebo publication") with an Applicant of Kanebo, Ltd.
A Common points and different features between the constituent elements ofInvention 1-1 and the Kanebo example invention are set forth as below:(Common points)[i] As for the constituent feature 1-1A
- A kit including the use of cosmetics for obtaining a carbon dioxide-containing
viscous composition.
[ii] Constituent elements 1-1B, 1-1C and 1-1D
- A combination of a first agent of an aqueous agent and a second agent of
granules (solid agent: granules, fine grains and powders).
- Either of a first agent and a second agent contains four components of(carbonate) sodium hydrogen carbonate, sodium alginate, citric acid, and water.
- A first agent contains water.
- A carbonate and an acid are separately mixed into a first agent and a second
agent.
- A kit capable of obtaining a carbon dioxide-containing viscous composition
comprising the carbon dioxide in the form of bubbles by mixing a first agent and asecond agent to react a carbonate with an acid.
- Carbon dioxide generated upon the mixture of a first agent and a second agent
can be retained in the form of bubbles in an aqueous viscous composition.
(Different features)[i] Different feature 1: In Invention 1-1, sodium alginate is preliminarily mixed
with water to form an aqueous viscous composition, whereas, in the Kanebo example
invention, sodium alginate and water are divided into a first agent and a second agent,and the mixing results in the formation of an aqueous viscous composition.
[ii] Different feature 2: In Example 1 of Invention 1-1, polyethyleneglycol is notcontained as a component, but polyethyleneglycol is contained in a second agent in the
Kanebo example invention.
[iii] Different feature 3: In Invention 1-1, the use of kit is cosmetics for the22

improvement on partial adiposeness, or a pharmaceutical composition for the treatment
of athlete's foot, atopic dermatitis, or bedsore, whereas the Kanebo example invention
is a bubbling cosmetic.
B Evaluation of different features(A) As for Different feature 1aPrior to the mixture of a first agent and a second agent, it is a matterof common technical knowledge of a person skilled in the art that water must not bemixed together with the agents, in order to prevent the reaction of a carbonate and an
acid.

Carbonate and acid may be filled in either a first agent or a second agent so longas they are not mixed with water.

This is within the body of common technicalknowledge of a person skilled in the art, and merely a selective matter or only a design
matter.
Further, according to the experiment of Exhibit Otsu A3, there is no significant
difference in a generated amount of bubbling of carbon dioxide between preliminary
preparation and simultaneous preparation of water.

Furthermore, in terms oftransdermal absorption amount, it can be said Invention 1-1 is inferior, not superior.
Therefore, it is technically insignificant that Invention 1-1 preliminary prepares anaqueous viscous composition.

Therefore, preparing in advance is only a selective

matter for design.
Further, first of all, it is obvious that carbon dioxide bubbles do not contributeto transdermal absorption.

Therefore, the constituent features of carbon dioxide

bubbles as specified in the constituent features 1-1C and 1-1D are insignificant
technical limitations.

In the presence of water of aqueous viscous composition, carbon

dioxide is generated.

Therefore, bubbles are generated only as a useless product, due

to the viscosity of a viscous composition.

Therefore, it is merely a selective matterfor design to form carbon dioxide bubbles.
In summary, in Invention 1-1, there is no technical significance to retain carbon
dioxide bubbles, nor there is technical significance to prepare an aqueous compositionin advance.

It is a well-known matter of art to make one agent an aqueous viscouscomposition.

Therefore, in Invention 1-1, it can be said that the constitution ofretaining carbon dioxide and the constitution of preparing in advance an aqueouscomposition are merely design matters for a person skilled in the art to select asnecessary.

Regarding Different feature 1, it can be said that a person skilled in the art

would easily conceive of it on the basis of the Kanebo example invention.
Further, constituent feature 1-1B specifies two combinations.

These are thesame in that carbon dioxide is generated in a liquid agent by a reaction of carbonate and23acid during mixing.

Thus the selection is merely a design matter for a person skilledin the art.
b

Even if the difference is recognized as alleged by Plaintiff, itremains a design matter to overcome the difference, because it is merely a selection of
combination of agent types as to whether carbonate and sodium alginate are formed intoa gel or otherwise a solid; a person skilled in the art who aims a technical variation
would try a combination of various agent types (only four combinations that premise
two-pack type in which carbonate and acid are separated from each other) without
particularly considering a relationship between problems or a difference in function andeffect.
Further, even if it cannot be said that it is a design matter to overcome thedifferent features, it is a commonly used art to preliminarily dissolve a thickener suchas sodium alginate into water.
by applying this.

Therefore, it is easy to overcome Different feature 1

By definition, commonly used art is a technique used daily.

Therefore, as long as there is no technical barrier in its application, a person skilled in
the art would try without any particular motivation.
The Kanebo example invention ensures stability of bubbles by the viscosity of a
thickener to improve the ability to store carbonate gas.

There is no technical barrier

to apply the above commonly used art to the Kanebo example invention, and it can besaid that there is a motivation.

Further, there is no disincentive.

(B) As for Different feature 2
First of all, the respective description shows a case of including
polyethyleneglycol as a matrix (see the production methods of Examples 109 to 144),and further Invention 1-1 does not exclude the possibility of including
polyethyleneglycol shown in the examples.

Therefore, components included in either

a first agent or a second agent can be seen as substantially identical to each other.
Therefore, Different feature 2 is not a substantial difference.
(C) As for Different feature 3
It is recited in the scope of claims of Exhibit Otsu A5 that carbon dioxide solution
having a blood circulation promoting effect obtained by a composition generating
bubbles of carbon dioxide through a reaction of a carbonate and an acid in water can beused as a therapeutic agent for bedsore.

Further, it is also described in Exhibit Otsu

A6, page 849, Tables 10 to 12, respectively, that the use of an artificial carbonate gas
bathing agent that generates bubbles of carbon dioxide by a reaction of a carbonate andan acid in water improves a symptom of atopic dermatitis without the use of oil
moisturizer.

Thus a person skilled in the art who read the description of these publicly
24

known documents could have easily conceived of using a carbon dioxide-containing
viscous composition obtained by a kit of the Kanebo example invention as apharmaceutical composition for the treatment of atopic dermatitis or bedsore.
Further, carbon dioxide has a blood circulation promoting effect, as described in
Exhibit Otsu E all 3, Exhibit Otsu A5, and Exhibit Otsu A6.

Further, it is widely

known to a person skilled in the art that the promotion of blood circulation may promotemetabolism, and as a result of decreasing subcutaneous adipose, beauty slimming is
caused.

Therefore, a person skilled in the art could have easily conceived of using acarbon dioxide-containing composition having a function of improving blood
circulation of skin obtained by a kit of the Kanebo example invention as a cosmetic forthe improvement of partial adiposeness.
(3) Lack of Inventive step of Invention 1-4
Invention 1-4 is "The kit of any of Claims 1 to 3, wherein the aqueous viscouscomposition comprises 2 % by weight or more of sodium alginate." Such technicallimitation is publicly known and a well-known fact.

Further, when it comes to weightpercent ratios of water, sodium hydrogen carbonate, and sodium alginate in an aqueous
viscous composition produced in the Kanebo example invention, sodium alginate is
calculated as 4.8 % by weight.
Therefore, the technical limitations of Invention 1-4 have no technical meaningor are disclosed in Kanebo's examples invention.
(4) Lack of Inventive step of Invention 1-5
Similar to the above item (3), when it comes to a weight percent ratio in an
aqueous viscous composition produced in the Kanebo example invention, water iscalculated as 91.3 % by weight.

Therefore, the technical limitations of Invention 1 -5

are disclosed in Kanebo's examples invention.
(5) Lack of Inventive step of Invention 1-7
As discussed in the above (2)B(C), a person skilled in the art could have easily
conceived of using a carbon dioxide-containing composition having a function of
improving blood circulation of skin obtained by a kit of the Kanebo example invention
as a cosmetic for the improvement of partial adiposeness.

Invention 1-7 only specifies

a kit as a cosmetic for the improvement of partial adiposeness.

Thus obviously it does

not involve an inventive step.
(6) Lack of Inventive step of Invention 1-8
The Invention limits a part for the improvement of adiposeness of Invention 1 -7
lacking inventive step to only the "face, leg, arm, abdomen, flank, back, neck, or jaw",
which is obvious.

Thus obviously the Invention does not involve an inventive step.
25

(7) Lack of Inventive step of Invention 1-9
Invention 1-9 is considered to be the same invention from a viewpoint of "amethod invention" instead of a "product invention".

Therefore, for a similar reason toInvention 1-1, it does not involve an inventive step.
(8) Lack of Inventive step of Invention 1-12
Invention 1-12 merely replaces Invention 1-4 with a method invention.
are substantially the same.

Therefore, for a similar reason to that for In vention 1-4, it

does not involve an inventive step.
1-10 and 1-11.

They

Further, Invention 1-12 encompasses Inventions

They only replace Invention 1-2 or 1-3 with a method invention insteadof a product invention.

They are substantially the same.

(9) Lack of Inventive step of Invention 1-13
Invention 1-13 merely replaces Invention 1-5 with a method invention.
are substantially the same.

They

Therefore, for a similar reason to that for Invention 1 -5, it

does not involve an inventive step.
(10) Lack of Inventive step of Invention 2-1
There is no particular different feature between Invention 2-1 and Invention 1-1.
Therefore, the discussion about Invention 1-1 applies here as well.
(11) Lack of Inventive step of Inventions 2-4 and 2-5
Inventions 2-4 and 2-5 have completely the same technical limitations as
Inventions 1-4 and 1-5.

Therefore, the discussion about Inventions 1-4 and 1-5 applies

here as well.
(12) Lack of Inventive step of Invention 2-7
Invention 2-7 is a use invention that limits the use of carbon dioxide-containing
viscous compositions of Inventions 2-1 to 2-5 to cosmetics and lacks an inventive step.
It is substantially the same as a kit of Invention 2-1 being "a kit for obtaining carbon
dioxide-containing viscous compositions to be used as a cosmetic".
As already discussed in the allegation of lack of inventive step of Invention 1 -1,
a person skilled in the art could have easily conceived of using a carbon dioxide containing composition having a function of improving blood circulation of skinobtained by a kit of the Kanebo example invention as a cosmetic for the improvement
on a partial adiposeness.

Invention 2-7 only specifies a kit as a cosmetic.

Thus

obviously it does not involve an inventive step.
(13) For the above reason, the above respective inventions were easily
conceivable by applying well-known art to the Kanebo example invention.
reasons for invalidation due to lack of inventive step.
(Plaintiff's allegation)
26

Thus it has

(1) Defendants' allegation is negated and refuted.
(2) Inventive step of Invention 1-1
A

It is an essential requirement in the Kanebo example invention tocover sodium hydrogen carbonate and sodium alginate with a solid polyethyleneglycol
at room temperature.

In a case of simply mixing sodium hydrogen carbonate, sodium

alginate, and a solid polyethyleneglycol at room temperature, it has significantly poorgas retainability and results in poor storage stability (Kanebo publication, Comparative
Example 1).

Therefore, integrating Different features 1 and 2 as Defendant alleges, it

is more appropriate to find the following different features:
Different feature 1'"Carbondioxide-containing

viscouscomposition"according to Invention 1-1 consists of a combination of an aqueous viscous composition
comprising carbonate, sodium alginate, and granules (fine grains, powders) comprisingan acid, whereas "an on-demand mixing-type bubbling cosmetic" according to the
Kanebo example invention comprises an aqueous solution obtained by dissolving an
acidic substance into water as a first agent and a solid covered with a solid
polyethyleneglycol at room temperature comprising sodium alginate and carbonate asa second agent to be mixed and produced in use.
B Different feature 1 or Different feature 1'
Defendants allege that the difference of Different feature 1 is merely a design
matter; however, the difference in constituent features according to Different feature 1
or Different feature 1' cannot be said as a matter to be considered naturally in
specifically applying a technique, but features of an important technical significance.
Thus these features are not just design matters.
Specifically, the Kanebo example invention is an invention with a liquid firstagent and a solid second agent being a technical requirement.

On the basis of suchpresumption, a technical device is made to cover a carbonate and a water -soluble
polymer with a solid polyethyleneglycol at room temperature in order to improve gas
storage ability as much as possible.

In view of the technical significance of such

Kanebo example invention, in the Kanebo example invention consisting of a liquid firstagent and a solid second agent covered with a solid polyethyleneglycol at room
temperature, it is a change that loses a technical significance of the Kanebo example
invention to preliminarily mix a thickener included in the second agent with the firstagent to make the first agent of an aqueous viscous composition (a gel).
Further, if a design modification is made as Defendants allege, the agent typesof a first agent and a second agent are changed.

In addition to a method for use and amethod for storage, in terms of function and effect, it becomes a completely different27cosmetic.

As of the priority date of Patent 1 of November 7, 1997, it could not be said

that an on-demand mixing-type bubbling cosmetics consisting of a combination of gelsand granules were well-known.

Therefore, it can never be believed that a person

skilled in the art who knew of the Kanebo example invention could have easily
conceived of changing a first agent of the invention with a preliminarily prepared gelcomprising sodium alginate.

Defendants allege that it was easily conceivable by theapplication of a commonly used art.

In view of the aforementioned, there is no

motivation to apply a commonly used art.

On the contrary, such application has adisincentive.
Furthermore, in a bubbling cosmetic of the Kanebo example invention, acarbonate and an acid react, and the resultant carbon dioxide diffuses into air to be lostwhile a thickener contacts water.

As a result, carbon dioxide in the form of bubbles

cannot be retained sufficiently.

When a formulating technique described in the

Kanebo publication is fully used, it is difficult to effectively seal and retain carbon
dioxide in the form of bubbles in an aqueous viscous composition comparable to therespective inventions.

As aforementioned, the constitution of Different feature 1 is aconstitution of technical significance that carbon dioxide is effectively sealed in an
aqueous viscous composition.
C Regarding Different feature 3
The description of the Kanebo publication fails to suggest the use of Different
feature 3.

It cannot be said that the other publicly-known document as Defendant

points out has a sufficient suggestion of the use of Different feature 3.
Therefore, the use of Invention 1-1 for the use in "a cosmetic for the
improvement of partial adiposeness or a pharmaceutical composition for the treatment
of athlete's foot, atopic dermatitis, or bedsore" was not easily conceivable by a person
skilled in the art.
D After the application of Patent 1, when Plaintiff started sales of the products
utilizing Invention 1, and the number of sales of products is growing with a focus on
its efficacy to achieve a commercial success.

Considering such commercial factors,

Invention 1-1 can solve a technical problem that has not been overcome ever before,
and obviously involves an inventive step.
(3) The inventive step of Inventions 1-4, 1-5, 1-7 to 1-9, 1-12, and 1-13
These inventions are inventions depending from Invention 1-1, and thus were
obviously not easily conceivable on the basis of the Kanebo example invention.
(4) Inventive step of Invention 2-1
Comparing with the Kanebo example invention, a difference between Inventions28

1-1 and 2-1 that may affect the determination of inventive step lies in whether or not alimitation is made of the use of "carbon dioxide-containing viscous composition to be
used for cosmetics for the improvement of partial adiposeness or pharmaceuticalcompositions for the treatment of athlete's foot, atopic dermatitis or bedsore".
Further, as discussed in the above item (2), regarding the point that it cannot be
said that Different feature 1 or Different feature 1' are design matters, and regardi ng thepoint of commercial success, the same holds true for Invention 2-1.

Therefore,

Invention 2-1 was also an invention that was not easily conceivable by a person skilledin the art on the basis of the Kanebo example invention, similar to Invention 1 -1.
(5) Inventive step of Inventions 2-4, 2-5, and 2-7
These inventions are inventions depending from Invention 2-1, and thus were
obviously not easily conceivable by a person skilled in the art on the basis of the Kanebo
example invention.
(6) For the above reason, the above respective inventions involve inventive step.
8 Issue 3-5 (lack of inventive step over a main cited reference of Kanebo's
publication, Comparative Example 2 (Kanebo comparative example invention))(Defendants' allegation)(1) Lack of Inventive step of Invention 1-1
A Comparative Example 2 of Kanebo publication discloses an invention
constituting the following respective constituent features (hereinafter referred to as"Kanebo comparative example invention").
(A) A two-pack bubbling cosmetics for activating the skin through a blood
circulation promoting effect of carbonate gas,(B) consisting of: a combination of a solid comprising a carbonate and a water soluble polymer of sodium alginate; and an aqueous solution comprising an acid,(C) characterized in that a viscous composition produced by mixing a solid
containing a carbonate and a water-soluble polymer of sodium alginate with an aqueous
solution containing an acid may retain carbonate gas,(D) a two-pack bubbling cosmetic capable of obtaining the above carbonate gascontaining viscous composition comprising carbonate gas by reacting a carbonate andan acid in the above viscous composition.
B The constituent features of the Kanebo comparative example invention(A) and (D) correspond to constituent features 1-1A and 1-1D, respectively.
On the other hand, comparing the constituent feature 1-1B with the constituent
feature (B) of the Kanebo comparative example invention, an agent type of acomposition is a solid containing a carbonate and sodium alginate in the Kanebo
29comparative example invention, whereas an agent type of the composition is an aqueous
viscous composition in Invention 1-1.

Further, an acid-containing agent is an aqueous

solution in the Kanebo comparative example invention, whereas an agent type of an
acid-containing agent is granules (fine grains, powders) in Invention 1-1 (this differenceis hereinafter referred to as "Different feature 1").
Further, comparing constituent feature 1-1C with constituent feature (C) of the
Kanebo comparative example invention, constituent feature (C) of the Kanebo
comparative example invention of "a viscous composition produced by mixing a solid
containing a carbonate and a water-soluble polymer of sodium alginate with an aqueous
solution containing an acid may retain carbonate gas" corresponds to constituent feature
1-1C of "an aqueous viscous composition is characterized in that it can retain carbon
dioxide in the form of bubbles".

First of all, the Kanebo comparative example

invention produces a viscous composition by mixing a solid containing a carbonate anda water-soluble polymer of sodium alginate, and an aqueous solution containing an acid,
whereas in Invention 1-1, a composition comprising sodium alginate is preliminarily ina state of aqueous viscous composition before mixing (hereinafter this difference isreferred to as "Different feature 2").
C As aforementioned, the Kanebo comparative example invention and Invention
1-1 are different from each other in terms of the difference in agent types of the agents
constituting a two-pack bubbling cosmetic (or a kit) (Different feature 1) and as towhich of a solid and an aqueous viscous composition a composition comprising sodium
alginate is (Different feature 2), however, both of these different features may beovercome as set forth below.

Therefore, Invention 1-1 is easily conceived from the

Kanebo comparative example invention as a main cited reference, and Invention 1 -1
does not have an excellent effect compared to the Kanebo comparative example
invention.
(A) As for Different feature 1
Regarding the form (agent type) of cosmetics (or pharmaceutical composition),
it was a conventional technique as of the filing of the respective patents to select asnecessary an agent type such as powder, liquid, or viscous composition (gel) (see e.g.
A publication of Japanese Unexamined Patent Application Publication No. 1995-76512(Exhibit Otsu E all 7), International Publication No. WO1995-19160 (Exhibit Otsu E
all 8)).
Regarding the respective agents in a cosmetic kit obtained by mixing two packs
for on-demand use, it was a conventional technique to select as necessary an agent typesuch as powder, liquid, or viscous composition (gel) (see e.g. A Kanebo publication
30

(Exhibit Otsu A102, Exhibit Otsu E all 6), Japanese Unexamined Patent Application
Publication No. 1985-215606 (Exhibit Otsu E all 3)).
Further, the Kanebo comparative example invention and the respective
inventions have in common the problem of improving the ability to retain carbonategas.

The selection of agent type in the respective inventions does not cause aparticular difference in function and effect, and thus is feasible by a person skilled in
the art without any particular creativity.

It is merely a design modification or a design

matter to change agent types of the first agent and the second agent as necessary in the
Kanebo comparative example invention.
(B) As for Different feature 2
It was well-known as of the filing of the respective patents that sodium alginate
has a property of being hard to be dispersed and swelled in water, and takes time to bedissolved into water.

Further, as aforementioned, a thickener including sodium

alginate takes time for thickening.

Thus it is merely a means commonly used asnecessary by a person skilled in the art to dissolve sodium alginate into water in advanceand use it to exhibit sufficient viscosity (see e.g. Japanese Unexamined Patent
Application Publication No. 1994-179614 (Exhibit Otsu E all 9)).
Therefore, in the Kanebo comparative example invention with a problem of an
improvement on the ability to retain carbonate gas, it is merely a design modification
or a design matter to make a composition comprising sodium alginate as a viscouscomposition.
(2) Lack of Inventive step of Invention 1-4
The Kanebo comparative example invention is a bubbling cosmetic in which 20
weight % of a second agent is sodium alginate, and the first agent and the second agent
are mixed in a proportion of 10:1 (Table 2 of Kanebo publication).

Specifically,

sodium alginate comprises about 1.8% sodium alginate in a bubbling cosmetic.
does not satisfy constituent feature 1-4.

This

Therefore, there is a difference between

Invention 1-4 and the Kanebo comparative example invention.
However, the difference is merely a design matter that a person skilled in the art
would carry out.
(3) Lack of Inventive step of Invention 1-5
The Kanebo comparative example invention is a bubbling cosmetic in which 95
weight % of a first agent is water, and the first agent and the second agent are mixed ina proportion of 10:1 (Table 2 of Kanebo publication).
comprises about 86% water in a bubbling cosmetic.
feature 1-5.

Specifically, sodium alginate

This does not satisfy constituent

Therefore, there is a difference between Invention 1-5 and the Kanebo
31

comparative example invention.
However, the difference is merely a design matter that a person skilled in the art
would carry out.
(4) Lack of Inventive step of Invention 1-7
Invention 1-7 merely limits the use of a cosmetic for the improvement of partial
adiposeness and a pharmaceutical composition for the treatment of athlete's foot, atopic
dermatitis, or bedsore to a use for improvement of partial adiposeness, and merely
changes a category of an invention into a cosmetic obtained by a kit according to any
one of Claims 1 to 5.

In addition, the category change from "a kit" to "a cosmetic

obtained by a kit" does not cause any technical significance that supports the inventive
step.
(5) Lack of Inventive step of Invention 1-8
The Kanebo comparative example invention is a cosmetic applying to a skin anddoes not particularly specify an application site.

On the other hand, Invention 1 -8

limits an application site to "for the improvement of partial adiposeness of the face, leg,arm, abdomen, flank, back, neck or jaw".

This is a difference.

The constituent features of "for the improvement of partial adiposeness of theface, leg, arm, abdomen, flank, back, neck, or jaw" do not find any technicalsignificance that supports the inventive step.
(6) Lack of Inventive step of Invention 1-9
Invention 1-9 merely changes a category of an invention relating to "a kit for
obtaining a carbon dioxide-containing viscous composition" of Invention 1-1 with "amethod for preparing a carbon dioxide-containing viscous composition".

Further, thecategory change itself does not cause any technical significance that supports theinventive step.
(7) Lack of Inventive step of Invention 1-12
As discussed in the above item (2), the Kanebo comparative example invention
comprises about 1.8% sodium alginate in a bubbling cosmetic.
constituent feature 1-12.

This does not satisfy

Therefore, there is a difference between Invention 1-12 andthe Kanebo comparative example invention.
However, the difference is merely a design matter (selection of numerical value)that a person skilled in the art would carry out.
(8) Lack of Inventive step of Invention 1-13
As discussed in the above item (3), the Kanebo comparative example invention
comprises about 86% water in a bubbling cosmetic.
feature 1-13.

This does not satisfy constituent

Therefore, there is a difference between Invention 1-13 and the Kanebo
32comparative example invention.
However, the difference is only a design matter that a person skilled in the art
would carry out.
(9) Lack of Inventive step of Invention 2-1
Invention 2-1 is different from Invention 1-1 in that a use of pharmaceuticalcomposition or cosmetics is not limited, and it comprises a combination form of anaqueous viscous composition comprising an acid and sodium alginate with granules,
fine grains, or powders comprising a carbonate.
These points are not differences from the Kanebo comparative example invention.
Thus the difference between Invention 2-1 and the Kanebo comparative example
invention are the same as the difference between Invention 1-1 and the Kanebo
comparative example invention.

Further, as aforementioned, these different features

are merely design variations or the adoption of design matters.
(10) Lack of Inventive step of Invention 2-4
As discussed in the above item (2), the Kanebo comparative example invention
comprises about 1.8% sodium alginate in a foaming cosmetic.
constituent feature 2-4.

This does not satisfy

Therefore, there is a difference between Invention 2-4 and the

Kanebo comparative example invention.
However, the difference is merely a design matter that a person skilled in the art
would carry out.
(11) Lack of Inventive step of Invention 2-5
As discussed in the above item (3), the Kanebo comparative example invention
comprises about 86% water in a bubbling cosmetic.
feature 2-5.

This does not satisfy constituent

Therefore, there is a difference between Invention 2-5 and the Kanebo

comparative example invention.
However, the difference is merely a design matter (selection of numerical value)that a person skilled in the art would carry out.
(12) Lack of Inventive step of Invention 2-7"The cosmetic comprising a carbon dioxide-containing viscous composition
capable of obtaining by the kit of any one of Claims 1 to 5" of Invention 2-7 onlychanges a category of the invention into a cosmetics obtained by a kit according to any
one of Claims 1 to 5.

The category change from "a kit" to "a cosmetics obtained by akit" does not cause any technical significance in favor of the inventive step.
(13) For the above reason, the above respective inventions have reasons forinvalidation of lack of inventive step over the cited invention of the Kanebo
comparative example invention.
33

(Plaintiff's allegation)(1) In the Kanebo publication, in a case where a surface of a solid of a second
agent is covered with polyethyleneglycol in a combination of a liquid first agent
including an acid and a second agent comprising a carbonate and a water -soluble
polymer (thickener) (Examples 1 to 11), it causes the excellent ability to retain gas, but
in a case where a surface of a solid of a second agent is not covered with
polyethyleneglycol (Comparative Examples 1 and 2), it causes an insufficient ability toretain gas.

Carbonate gas gradually generates with a second agent being a solid

covered with a solid polyethyleneglycol at room temperature, so that carbonate gas is
not fully discharged until a liquid first agent exhibits viscosity.

Such effect i shighlighted.
Specifically, to achieve excellent ability to retain gas in the Kanebo comparative
example invention where water and a thickener are mixed on demand, it is essential tocover a carbonate and a water-soluble polymer with a polyethyleneglycol in a solid
form at room temperature.

Thus it can be naturally said that Comparative Example 2

lacking polyethyleneglycol cannot be a ground for negating the inventive step of therespective inventions.
(2) "Carbon dioxide-containing viscous composition" according to the respective
inventions consists of a combination of an aqueous viscous composition comprising acarbonate and sodium alginate with granules comprising an acid.

It is an invention of"preliminarily prepared-type carbon dioxide generating pack" that generates carbon
dioxide in a viscous composition prepared in advance (gel).

On the other hand, theKanebo comparative example invention is a combination of an aqueous solution
comprising an acid (first agent) and a solid comprising a carbonate and sodium alginate(second agent), and an invention of "on-demand preparation-type carbon dioxide
generating pack" that imparts viscosity to an aqueous solution by mixing these agents
together in use.
It could never be believed that a person skilled in the art could have easily
conceived of as of the priority date of the Patent of November 7, 1997 that the Kanebo
comparative example invention of "on-demand preparation-type carbon dioxide
generation pack" in which an aqueous solution and a solid are combined is changed into
a combination of granules including an acid and a viscous composition prepared inadvance with a carbonate and sodium alginate added thereto.

Such designmodification might change the agent types of a first agent and a second agent and results
in a totally different cosmetic in terms of function and effect as well as use method andstorage method.

It could not be said as of the above priority date that the on -demand34

mixing cosmetics consisting of a combination of a viscous composition ( gel) andgranules was well-known.

Thus it could never be thought that a person skilled in theart who knew the Kanebo comparative example invention could have easily conceivedof completely changing into a totally different constitution; i.e., changing an aqueous
solution containing an acid in the invention (first agent) into granules containing anacid, and further changing a solid containing a carbonate and sodium alginate (second
agent) into an aqueous viscous composition containing a carbonate and sodium alginate.
Further, in the Kanebo comparative example invention, what is disclosed ismerely a constitution in which the ability to retain gas is not sufficiently ensured.

The

respective inventions have a greatly different technical significance from the respective
inventions where generated carbon dioxide is sealed in a viscous composition by
adopting a constitution consisting of a combination of an aqueous viscous composition
containing a carbonate and sodium alginate with granules containing an acid.

Fromsuch a viewpoint, it is obvious that the respective inventions are not easily conceivableon the basis of the Kanebo comparative example invention.
(3) Therefore, the above respective inventions involve inventive step.
9 Issue 4 (presence or absence of negligence of Defendants Cosmepro et al.)(Defendants Cosmepro et al.)Defendants Cosmepro et al. did not at all originally have an intention to infringe
the respective patents.

At that time, they had an intention to purchase and sell the

products covered by the patent right owned by Defendant Neochemir, who had a solepatent right in Japan with respect to carbonate gas pack.

As seen above, Defendants

Cosmepro et al. only have a recognition of purchasing and selling legitimate products.
Thus they have no negligence at all.
(Plaintiff's allegation)
Defendants Cosmepro et al.'s allegation is negated and refuted.
10 Issue 5 (Establishment of joint tort)(Plaintiff's allegation)
In regard to the construction of the paragraph of Civil Code, Article 719,
paragraph (1), it is a court precedent and a reigning theory that mutual communication
between tort-feasors is not always necessary, but the presence of objectively closelyassociated cooperativity is sufficient.

In a case of patent right infringement as in thiscase, it is reasonable to find the establishment of joint tort even in a position of general
agency where all amounts of infringing products produced by a manufacturer are soldby a specific seller as well as in a case where a manufacturer and a seller of infringing
products produces and sells infringing products with communication.
35

In this regard, regarding the productions and sales of the Defendant's products 1
to 9, 11, and 13 to 18, it is found that Defendant NeoChemir and the othe r defendants
are involved with a commercial distribution like a form described in the attachment of"commercial distribution of the respective Defendant's products", and persons who are
involved with dealing of the respective products are respectively involved with the salesof the whole amount of the respective products.
Therefore, the patent infringing acts of Defendant NeoChemir and the other
Defendants for the respective products, Esco for the Defendant's products 2 and 16,
TRUST WINGS for the Defendant's product 3, CEFINE for the Defendant's product 6,
Wamu and SUHADA Cosmetics for the Defendant's product 7 (the above respective
companies are referred to as "Defendants") correspond to joint tort as specified in
Article 719, paragraph (1) of the Civil Code, and thus the respective Defendants havean obligation to jointly compensate a total amount of profit obtained by Defendants
who are involved with dealing of the respective products.
(Defendants' allegation)
Plaintiff's allegation is negated and refuted.

There is no relationship between

Defendants that corresponds to the completion requirement of joint tort.
(Defendants Cosmepro et al.'s Allegation)
Defendants Cosmepro et al. directly or indirectly began to deal with Defendant
NeoChemir who was a sole patentee with regard to carbonate gas pack, and have paid
money including a patent royalty.

They are only in a business connection withDefendant NeoChemir via products.

Further, Defendants Cosmepro et al. andDefendant NeoChemir have no common executive officer, no capital relation, let alone
are they in a general agency position.
Therefore, Defendants Cosmepro et al. does not have joint tort liability together
with Defendant NeoChemir.
11 Issue 6-1 (Plaintiff's amount of damage - Article 102, paragraph (2) of the
Patent Act)
(Plaintiff's allegation)(1) Defendants' sales figures and profit according to the respective Defendants'
products
A General discussion
Defendants' sales figures for the respective Defendant's products and an amountof expenses to be deducted from the sales figure in calculating an "amount of profit" in
Article 102, paragraph (2) of the Patent Act after the registration of Patent 1 arerespectively as per described in the columns of "sales figure" and "expenses" of the36attachment "List of claimed amount (Plaintiff's allegation)" (Plaintiff accepts an amountof a part not highlighted in yellow in the sales figure of the column "sales figure" of theattachment "List of sales figure and expenses (Defendants' Allegation)", and further
Plaintiff also accepts the deduction of an amount of a part not highlighted in yellow in
an amount (total amount) of the column of the attachment "Purchases, raw material
costs, shipping costs etc." in calculating "an amount of profit").
Note that the amounts in the column of sales figure of the columns of "Defendant
AMPLY" for Defendant's product 8 and "Defendant Wingsense" for the Defendant's
product 13 of the attachment "List of claimed amount (Plaintiff's allegation)" include
consumption tax.
Defendants raise expenses of the column "the other expenses (Defendants'
allegation)" of the attachment "List of sales and expenses (Defendants' allegation)" asan expense to be deducted from sales figure.

"An amount of profit" in Article 102,

paragraph (2) of the Patent Act should be construed as meaning so-called "marginal
profit" in which only an additional cost necessary for production and sales of infringing
products is deducted from sales figures of the infringing products.

The expenses to be

deducted from the sales figure are limited to variable expense directly required.

Itcannot be said that the above expenses as Defendants allege was a variable expense
additionally required for the production and sales of the infringing products, nor is it
definite as to whether or not it is an expense necessary for the production and sales of
the respective Defendant's products.

Thus it should not be deducted from the sales

figure.
B Sales figure and expenses of TRUST WINGS (in relation to Defendant's
products 3 and 4)
Plaintiff claims a compensation for damage after January 7, 2011 on which
Patent 1 was registered.

The sales figure of TRUST WINGS after that date is as per

described in the column of "sales figure" of the column "TRUST WINGS" of therespective products of the attachment "List of claimed amount (Plaintiff's allegation)"(The number of sales is 15,120 units for Defendant's product 3, and 7,000 units for
Defendant's product 4).
Further, the expenses amount to 9,616,320 yen (purchases 9,450,000 yen ,material cost 166,320 yen) in total for Defendant's product 3, and 6,600,500 yen in total
for Defendant's product 4.

The latter is set forth as below:(A) Defendant's product 4-1 (2,000 unit) Total 1,862,000 yen
Purchases 1,840,000 yen (unit price 920 yen)Spatula 22,000 yen (unit price 11 yen)37

(B) Defendant's product 4-2 (5,000 unit) Total 4,738,500 yen
Purchases 4,400,000 yen (unit price 880 yen)Spatula 55,000 yen (unit price 11 yen)
Granules sealing 6,500 yen (unit price 1.3 yen)
Granules sealing mold 8,000 yen
Face sheet 217,500 yen (unit price 43.5 yen)
B agent bag 51,500 yen (unit price 10.3 yen)
C Allegation of stock articles (in relation to Defendant's products 6, 8, 9, and
15)(A) CEFINE's expenses for the Defendant's product 6
An amount of expenses for the purchases in the column of "CEFINE" of the
Defendant's product 6 of the attachment "List of sales and expenses (Defendants'
allegation)" (an amount excluding packaging costs, warehouse expense, and shipping
costs) includes a part of stock articles that were not actually sold.

The expenses forthe purchases of the stock articles that were not sold are not deductible.
In this regard, the number of purchases of the Defendant's product 6 by
Defendant CEFINE is described as 3,506 boxes, of which 450 boxes remain as stock
articles.

Thus the products that were actually sold amount to 3,056 boxes, andexpenses for the purchases thereof amount to 4,020,506 yen (4,612,530 yen * 3,056
units /3,506 units).
Therefore, the expenses deducted from the sales figure amount to 6,240,118 yen
in total, including the above amounts, packaging costs, warehouse expense, andshipping costs.
(B) Defendant Rhythm's expenses for the Defendant's product 8
Purchases in the column of "Defendant Rhythm" of the Defendant's product 8 of
the attachment "List of sales and expenses (Defendants' allegation)" include a part ofstock articles that were not actually sold.

The purchases of the stock articles that were

not sold are not deductible.
In this regard, the number of purchases of the Defendant's product 8 by
Defendant Rhythm is described as 31,446 boxes, of which 695 boxes remain as stock
articles.

Thus the products that were actually sold amount to 30,751 boxes, and thepurchases thereof amount to 124,750,992 yen (127,570,476 yen * 30,751 units /31,446
units).
Therefore, the expenses deducted from the sales figure amount to 135,184,458
yen in total of the above purchases and shipping costs.
(C) Defendant SHIN's expenses for the Defendant's product 938

Purchases in the column of "Defendant SHIN" of the Defendant's product 9 of
the attachment "List of sales and expenses (Defendants' allegation)" include a part ofproducts that were not actually sold.

The purchases of products that were not sold ar e

not deductible.
In this regard, the number of purchases of the Defendant's product 9 by
Defendant SHIN is described as 7,550 units, whereas the number of sales is described
as 7,450 units (packs).

Thus the purchases of the products that were actually s oldamounts to 5,393,800 yen (5,466,200 yen * 7,450 units (packs) /7,550 units), whichshould be deducted from the sales figure.
(D) Defendant Clear noir's expenses for the Defendant's product 15
An amount of expenses for the purchases in the column of "Defendant Clear
noir" of the Defendant's product 15 of the attachment "List of sales and expenses(Defendants' allegation)" (an amount for granules) include a part of products that were
not actually sold.

The expenses for the purchases of products that were not sold are

not deductible.
In this regard, the number of sales from Defendant NeoChemir to Defendant
Clear noir is ●(omitted)● units, the number of sales by Defendant Clear noir is ●(omitted) ● units.

Therefore, an amount of expenses regarding the purchases of

products that have actually sold amounts to ●(omitted)● yen.
Therefore, the expenses deducted from the sales figure amount to ●(omitted)● yen in total, including the above amounts and shipping costs.
D Sales figure and profit for granules that Defendant NeoChemir has produced
and sold (in relation to Defendant's products 9, 11, 12, 14, 17, and 18)(A) Defendant NeoChemir produced and sold granules of Defendant's products
9, 11, 12, and 17, which were identical to each other.

The sales figure and profit were

calculated collectively.

Thus accurate sales figure and profit for the respective

products are indefinite.

Therefore, the sales figure and profit of granules according to

the respective products should be calculated pro rata in accordance with the proportionsof the respective sales figures of Defendant SHIN (Defendant's product 9), Defendant
Japan Cosme (Defendant's products 11 and 17) and AVON PRODUCTS (Defendant's
product 12) who produced and sold the respective products (Note that the sales figureof AVON PRODUCTS is ●(omitted)● yen.).
Specifically, in a sales figure ( ● (omitted)● yen in total) and a profit ( ●(omitted)● yen in total) deducting purchases ( ● (omitted)● yen) from the sales
figure for the above respective products, ● (omitted) ● % should be attributed to
Defendant's product 9, ●(omitted)●% should be attributed to Defendant's product 11,
39

●(omitted)●% should be attributed to Defendant's product 12, and ●(omitted)●%should be attributed to Defendant's product 17.
(B) Defendant NeoChemir produced and sold granules of Defendant's products
14 and 18, which were identical to each other.

The sales figure and profit were

calculated collectively.

Thus accurate sales figure and profit for the respective

products are indefinite.

Therefore, the sales figure and profit of granules according to

the respective products should be calculated pro rata in accordance with the proportionsof the respective sales figures of Defendant Cosmepro, who produced and sold therespective products.
Specifically, of a sales figure ( ●(omitted)● yen in total) and a profit ( ●(omitted)● yen in total) deducting purchases ( ● (omitted)● yen) from the sales
figure for the above respective products, ● (omitted) ● % should be attributed to
Defendant's product 14 and ● (omitted) ● % should be attributed to Defendant's
product 18.
(2) As seen above, the profit obtained by Defendants is as per described in thecolumn of "profit" of the column of the respective Defendant of the attachment "List ofclaimed amount (Plaintiff's allegation)".

In a case of joint tort being established,

Plaintiff can claim a compensation for damage in an amount of the column "total" ofthe respective products against Defendants who are involved with production and salesof Defendant's products 1 to 9, 11, and 13 to 18.
Further, Plaintiff is forced to bear attorney costs.

The attorney cost in

association with the tortious act of Defendants does not fall below an amount of 10%of the above amount.
(3) Defendants' allegation of a ground for rebuttal to presumption
A Defendants allege that the respective Defendant's products have asignificantly excellent effect.

The requirements of the below-mentioned items [i] and[ii] as Defendants allege merely rephrase foaming or sustained bubbles.

Therefore,

the examples of the respective inventions (Plaintiff's products) may exhibit a sufficient
Bohr effect.

Therefore, there was obviously a causal relationship that, if there wereno sales of the respective Defendant's products, the sales of the Plaintiff's pr oducts
would be possible.
B Defendants had promoted and advertised the respective Defendants' productswith an emphasis on a partial adiposeness improving effect.

The facial contour

slimming effect as Defendants allege is included in a partial adiposeness improving
effect.

Thus the respective Defendants' products have a partial adiposeness improving

effect.

Further, the effects become a differentiating factor from the other company's
40

products.
C Defendants allege that the respective Defendant's products fall within atechnical scope of the patented invention of the below-mentioned Defendant
NeoChemir.
right.

The patent according to the invention has first of all a narrow scope ofFurther, even if one should adopt the constitution of the inventi on, no

significant effect is observed leading to the increase of sales.

There was obviously acausal relationship that, if there were no sales of the respective Defendant's products,
the Plaintiff's products would be sold.
D Defendants allege that the effects of the respective inventions are only
incidental effects; however, "to retain carbon dioxide and allow users to enjoy thetransdermal efficacy caused by carbon dioxide" in the field of carbonate gel packs is aneffect that premises the effective performance of beauty effects including partial
adiposeness improving effect and other effects.

It is not an incidental effect.

a key factor that affects the most of consumers' motivation for purchases.

This isFurther, it

is difficult to produce a carbonate pack that avoids a patent according to a patent rightowned by Plaintiff including the respective patent rights.

Thus the value of the patentis extremely high.
E Defendants allege that there are competing products; however, the products
pointed out by Defendants include ones with a constitution different from the respective
Defendant's products; i.e. not a two-pack type carbonate gel pack of gel and granules.
These competing products cannot absorb a sufficient amount of carbon dioxidetransdermally, nor do they become competitive with the respective Defendant's
products.

Further, Plaintiff seeks an injunction of production and sales against acompany which sell a two-pack type product of a gel and a powder (Attachment "Listof carbonate-related cosmetics", items 6, 9).
small.

The sales of the company seem to beThus Plaintiff is not getting around to file a suit against the company.
F As per the below-mentioned Defendants' allegation, Defendants allege thatthe technical value of the respective inventions is extremely low by pointing out
Shiseido 614, Nisshin 324, and Ishigaki inventions 1 and 2; however, the technicalvalue of the respective inventions is sufficiently high.
(A) Defendants allege that the combination of gel and powder falls withinmatters of common general knowledge; however, Shiseido 614 and Nisshin 324 as
pointed by Defendants fail to disclose or suggest cosmetics generating carbon dioxide,
and lack motivation to combine the other well-known art or common general knowledge
as Defendants allege.
(B) Defendants allege that a skeleton moiety of the respective inventions is a41matter of well-known art; however, Ishigaki inventions 1 and 2 have an objective formassaging skin and hair by breaking bubbles of carbonate gas generated by mix ing afirst agent and a second agent in water.

Therefore, it is unnecessary to retain carbon

dioxide in the form of bubbles in a bubbling cosmetic.
invention only massages the skin.

Further, carbonate gas in this

It is not absorbed into the skin dermall y andtransmucosally.
Therefore, the respective inventions and Ishigaki inventions 1 and 2 are totallydifferent from each other in an action mechanism of carbon dioxide on the skin, method
for use, and effects and efficacy.

There is no motivation to combine the other well-known art or common general knowledge as Defendants allege.
(C) Defendants allege that the preliminary preparation is essential.

Even if thetechnical matters of Shiseido 614 should be combined with Ishigaki inventions 1 and 2,
the result would not reach the respective inventions.

First of all, the technical mattersof Shiseido 614 and Ishigaki inventions 1 and 2 have nothing in common with respect
to the problem and function and effect.

There is no motivation to combine them.

Further, even if the technical matters of Shiseido 614 should be applied to
Ishigaki inventions 1 and 2, in a case where these inventions should be subjected to a
design modification to the same configuration as the respective inventions, themassaging effect of Ishigaki inventions 1 and 2 would be lost, and the essence of theinvention would be destroyed.
Therefore, there is obviously a disincentive to modify Ishigaki inventions 1 and
2 with a kit including a "viscous composition" and "granules including a carbonate andan acid".

The allegation that sodium alginate should be dissolved in water in advanceis not reasonable.
(D) As seen above, the aforementioned common general knowledge and wellknown art as Defendants allege cannot be a ground for undermining the technical valueof the respective inventions, nor is there a motivation to combine them.

Therefore,

the technical value of the respective inventions is sufficiently high.
G Defendant's remaining allegation is negated and refuted.

The reason as

Defendants allege cannot be circumstances of the rebuttal to presumption.
(Defendants' allegation)(1) Defendants' sales figure and profit according to the respective Defendants'
products
A General discussion
The Defendants' sales figures, expenses, and profit for the respective Defendants'
products are respectively set forth as below.
42

In an amount of the columns of "sales

figure", "expenses", and "profit" of the attachment "List of claimed amount (Plaintiff's
allegation)", an amount highlighted in yellow is negated and refuted.

Note that theamounts of sales figure of Defendant AMPLY for Defendant's product 8 and DefendantWingsense for Defendant's product 13 including consumption tax are as per the amounts
alleged by Plaintiff.

Plaintiff's remaining allegation is negated and refuted.

(A) Sales figures

Amount in the column of "sales figure" of the attachment"List of sales and expenses (Defendants' allegation)"(B) Expenses

Total amount in the columns of "Purchase, raw material

costs, shipping cost etc." and "other expenses" of the attachment(C) Profit

Amount in the column "profit" of the attachment

B Sales figure of TRUST WINGS (in relation to Defendant's products 3 and 4)
An amount in the column "sales figure" of the column "TRUST WINGS" of Defendant 's
products 3 and 4 of the attachment "List of sales and expenses (Defendants' allegation)"is an amount deducting the one ordered on January 2012 for Defendant's product 3, andan amount deducting the one ordered on May 11, 2011 for Defendant's product 4.
C Regarding the cost to be deducted from sales figure, there is no legal groundto limit to marginal expense.

It should be disciplined by the presence or absence of

causal relationship (Article 416 of the Civil Code).

Regarding the expenses other thanmarginal expense, it allows the company to survive and allows factories to operate.
Thus it should be construed that an amount proportional to sales figure should be
included in expenses to be deducted.
D Defendant NeoChemir's allegation (in relation to Defendant's products 1 to 9
and 11 to 18)
Defendant NeoChemir does not leave production processes of procurement of
raw materials, preparation of factory order, the adjustment of production process, bulk
check of factory product, acceptance validation, and storage test to factory's discretion
for the quality control of products as well as ensuring the credibility of consumers anddistributors, but leaves it to NeoChemir's employees among NeoChemir R&D
researchers.

In accounting, the production costs by researchers are allocated as an

employment cost.

They engage in production.

Thus it can be said that an

employment cost per one researcher is a cost for the production of the products.
should be allocated as a marginal expense of products.

This

However, a researcher incharge of production engages in a production process of products other than therespective Defendants' products.

Thus only a proportion of sales figure of therespective Defendants' products on a whole sales basis should be allocated as a marginal
expense for the respective Defendants' products (an amount in the column "the other43

expenses" of the column "Defendant NeoChemir" of the attachment "List of sales andexpenses (Defendants' allegation)" is an amount calculated by the ratio.).
E Defendants Cosmepro et al.'s Allegation(A) Stock articles (in relation to Defendant's products 6, 8, 9, and 15)
Plaintiff alleges that purchases of stock articles should not be deducted as
expenses; however, the product source is Defendant NeoChemir.

The amount ofpurchase paid by the respective Defendants who purchased the products should beallocated as a sales figure of Defendant NeoChemir, and a profit should be calculated
therefrom.

Ultimately it should be reflected on the calculation of loss of dam age ofPlaintiff.

Therefore, if a profit should be calculated as Plaintiff alleges, a purchase ofstock articles should be deducted from the sales figure and profit of Defendant
NeoChemir and the amount of damage of Plaintiff.
Further, the stock articles include products that Defendant refrained from sellingas a result of a cautionary notice from Plaintiff or the settlement of the provisional
injunction case.

Thus it is unreasonable unless the deduction of the amount ofpurchases is accepted.

Furthermore, regarding products used as samples, products

could be sold by their use.

Therefore, these expenses should be deducted as expenses.

(B) Other expenses (in relation to Defendant's products 1, 5, 6, 7, 8, 13 to 15,
and 18)
Expenses in the column "other expenses" of the attachment "List of sales andexpenses (Defendants' allegation)" for Defendants Cosmepro et al. are additionallyrequired expenses for the production and sales of the respective Defendants' products.
It corresponds to a variable expense as Plaintiff alleges.
The respective Defendants' products are cosmetics to be used by women for theface.

Defendants are not the companies known to the whole of the country.

Thus theDefendants' sales are attributed to promotion and advertisement and steady businessactivities.

It is natural to deduct expenses such as promotion and advertisement costs

and traveling expenses that produce the sales.
Extraordinarily large sales figure of Defendant Rhythm is due to a business typeand sales type different from the other companies.

Defendant Rhythm has paid a salescommission and sales promotion cost as a margin to people who make an effort to sell
the products, and has focused on promotion and advertisement through exhibitions andtraining sessions.

To hold an exhibition and a session, many employees and staff

members should go there, which results in a large amount of traveling costs.

Further,

Defendant AMPLY believed that the sales increase of Defendant Rhythm would leadto the profit increase of its own, and has been making an effort to sell the Defendant's
44

product 8 in cooperation with Defendant Rhythm, and has been paying great expense
such as promotion and advertising costs.

Therefore, these expenses should be

deducted.
It should also be noted that Defendant Cosmepro has paid expenses such as fueland light expenses and employment expense in addition to the above expense.

Given

this, a profit is further decreased.
(2) Ground for rebuttal to presumption
The following facts should be considered for the rebuttal to presumption.
should be construed that the presumption is to be rebutted by 99%.

It

Further, Plaintiff

alleges that it is difficult to produce carbonate packs that avoid the patents according to
the patent rights owned by Plaintiff other than the respective patent rights.

Thisallegation is substantially an allegation of infringement discussion about the patentrights other than the respective patent rights, and thus should be dismissed as a methodof allegation or evidence presented after the time for doing so.
A Plaintiff's products have poorer performance compared to the respective
Defendants' products(A) The technical features of the respective Defendants' products are to satisfy
the requirements of [i] a technique to keep generated carbonate gas (to make a highly
viscous gel), [ii] a technique to sustain a time for transdermal absorption of carbonate
gas for a long period (to make slowly releasing granules), and [iii] a technique to cause
carbonate gas to be absorbed more effectively from the skin (to adjust a pH to 4 to 5.7)
in order to provide much oxygen to skin cells using Bohr effect as well as to enhance
Bohr effect.
Defendants

utilizedknow-howobtainedthroughtheir own

technical

development to develop the respective Defendants' products that satisfy the above
requirements.

By coating such respective Defendants' products on the skin, oxygencan get across the skin as an act of Bohr effect to cause great beauty effects.
Furthermore, the respective Defendants' products have earned a reputation in the market
for their high moisturizing effect and convenience.

As seen above, it can be said thatthe respective Defendants' products have a significantly excellent efficacy as comparedto the implemented products (Plaintiff's products) of the respective patents.

In an

imaginary world where the production and sales of the respective Defendants' products
are disregarded, it can never be said that the implemented products of the respective
patents could be sold comparable to the respective Defendants' products.
(B) Further, the respective Defendants' products have no partial adiposeness
improving effect that Invention 1 causes.
45

Partial adiposeness improving effect means the decrease of fat at a part of thebody.

This effect is caused by a medical device or a pharmaceutical product.

Indeed,it is true that the respective Defendants' products even have an effect of early recovery
of muscle fatigue and a muscle promoting effect due to the discharge of oxygen intransdermal absorption of carbonate gas.
effect.

This effect causes a facial contour slimming

However, the facial contour slimming effect does not physically reduce a sizeof the face by decreasing fat of the face.
adiposeness.

It is different from a solution to partial

Further, consumers would not purchase carbonate gas packs for the

purpose of solving adiposeness.

Defendants do not promote partial adiposeness

improving effects through transdermal absorption of carbon dioxide in the form of
bubbles, nor do they make it as a differentiating factor.
Further, the sales of carbonate gas packs for the dissolution of partial adiposenessviolate the law and regulations such as the Pharmaceutical Affairs Law.

Thus it ishardly believed that cosmetics manufacturers daringly produce and sell such products
violating laws.
For the above reason, the function and effect of the respective inventions ofpartial adiposeness improving effects do not at all contribute to the sales of therespective Defendants' products.
B Plaintiff's products are less convenient
Carbonate gel pack is a two-pack type product.
use, and scheduled to be coated on the skin.
one-time use becomes a problem.

Gel and granules are mixed inThus a reduction of a time necessary for

Further, Defendant's products 1, 8, and 15 use agelator (gel hardening agent) to overcome any disadvantage associated with the removalof pack and subsequent face wash, and have no need to rub the skin with a spatula etc.,
and have a convenience to prevent scratching of the skin.

Further, Defendant's

products 1, 2, 3, 4, 15, and 16 use a stand pouch container as a gel container to overcome
a disadvantage involved with washing gel off in a stirring container.

Further, since

granules are contained at the bottom of the stand pouch, it is convenient to easily carry.
C The respective Defendants' products do not claim an efficacy for the
improvement of partial adiposeness.

The partial adiposeness improving effect does

not become a differentiating factor from the other companies' products
D The sales of the respective Defendants' products are accomplished by planningability and marketing efforts of Defendants and their business contacts
A carbonate gel pack is a cosmetic, and corresponds to a shopping goods forwhich a professionally trained salesperson can give a helping hand to customers in thestore; i.e., face-to-face sales are effective.

It is necessary to provide a salesperson with46

training and construct a distribution system so as to meet the needs of each customer.
Many consumers buy the respective Defendants' products because Defendants
produced products with excellent efficacy on the basis of the below-mentioned
Defendant NeoChemir's patented invention, and further presented product promotions
with a full consciousness on the AISAS principle, not because the respective
Defendants' products were implemented products of the respective inventions.
Consumers selected the respective Defendants' products from an enormous amount ofcompeting products because Defendants provided business contacts with sufficient
information and training.

In particular, implemented products of the respective

inventions with poor performance compared to the respective Defendants' products
could not have been sold in the same amount as the respective Defendants ' products.
E The respective Defendants' products fall within a technical scope of the
below-mentioned Defendant NeoChemir's patented invention
Defendant NeoChemir has three patent rights related to carbonate gel packs titled"Composition for the preparation of carbon dioxide topical products" (patents according
to the below-mentioned Defendant NeoChemir's patented inventions).

The respective

Defendants' products fall within a technical scope of the invention according to Claim
1, and have the same function and effect.

In an imaginary world where the production

and sales of the respective Defendants' products are disregarded, it can never be said
that the implemented products of the respective inventions could be sold comparably tothe respective Defendants' products.
F Essential feature of the respective inventions and the existence of competingproducts(A) An essential feature of the respective inventions lies in the selection of a gelof "an aqueous viscous composition (aqueous gel) preliminarily containing sodium
alginate in a sticky state" as a first agent.

Further, its direct effect lies in that "toeffectively retain carbon dioxide and allow users to effectively enjoy a transdermal
efficacy of carbon dioxide", whereas a fundamental function of a common carbonate
gel pack lies in "to retain carbon dioxide and allow users to effectively enjoy atransdermal efficacy of carbon dioxide".

Thus this effect is only incidental.

Further, the function and effect of the respective inventions is healing etc . ofvarious diseases.

The effect caused by the respective Defendants' products is an

improvement on a common beauty problem such as skin fitness and prevention of skintrouble.

This is only a part of the function and effect of the respective inventions.

Further, Invention 1 is an invention in which the use is limited to a partial adiposeness
improving effect.

The respective Defendants' products are not utilized for the use, nor
47

are such effect caused first of all.

The function and effect of Invention 2 is a problem

that should be solved by general skincare cosmetics.

It can never be said to be asignificant effect, nor to totally affect a buying motive of the respective Defendants'
products.

Further, in the advertisement of the respective Defendants' products, it isemphasized that Bohr effect allows oxygen to get across skin cells and this is "good forthe skin" (recover a beauty skin function of original skin).

This point has nothing to

do with the function and effect of the respective inventions.
(B) In the carbonate gel pack market, as per described in the attachment "List ofcarbonate-related cosmetics", there are many competing products for the respective
Defendants' products.

In an imaginary world where the sales of the respective

Defendants' products are disregarded, competing products would have absorbed mostof the demand for the respective Defendants' products.
G Low technical value of the respective inventionsFirst, a combination of gel and powder is within common general knowledge(see Japanese Unexamined Patent Application Publication No. 1994-179614 (Exhibit
Otsu A103, Exhibits Otsu E all 9, 35.

Hereinafter referred to as "Shiseido 614"),

Exhibit Otsu E all 41, Japanese Unexamined Patent Application Publication No. 1995 53324 (Exhibit Otsu E all 36.

Hereinafter referred to as "Nisshin 324")).

Further, the core of the respective inventions is to mix a first agent and a second
agent when in use to cause generation of carbon dioxide in the form of bubbles.

This

is a matter of well-known art described in a plurality of documents such as Japanese
Unexamined Patent Application Publication No. 1993-229933 (Exhibits Otsu E all 4,37.

Hereinafter referred to as "Ishigaki invention 1") and Japanese Patent Publication

No. 1995-39333 (Exhibits Otsu E all 5, 38.

Hereinafter referred to as "Ishigaki

invention 2").
Further, sodium alginate has been utilized as a thickener useful in a wide variety
of industrial fields including cosmetics and foods.

It was a matter of common generalknowledge that had been known since early times that sodium alginate could be
dissolved in water, but took time to be dissolved, and thus it was desirable to dissolve
it in water in advance (Exhibit Otsu E all 40).

Further, it was also a matter of common

general knowledge that sodium alginate precipitates in acid as alginic acid, or is not
soluble (Exhibits Otsu E all 39, 40).

Therefore, in a case where sodium alginate isadded to an aqueous solution as a thickener, it is a matter of common general knowledge
that not an acidic aqueous solution but a basic aqueous solution is selected.
Furthermore, water-soluble salt of alginate tends to clump due to its poor
solubility in water.

Thus it was well-known to be hard to form a uniform film in48

applying onto the face (Exhibit Otsu E all 35).

Thus it was a matter of common

general knowledge for a person skilled in the art that there was a problem of "hard toform a uniform film" in a case of utilizing sodium alginate as a thickener.
Therefore, starting from Ishigaki Invention 1 or 2, according to common generalknowledge, in a case of on-demand mixture of a first agent of an aqueous composition
and a second agent of granules, a person skilled in the art who faced a problem of theformation of clumping would have dissolved sodium alginate in water in advance tosolve the problem on the basis of the common general knowledge.
As described above, the respective inventions was easily conceivable by fully
utilizing common general knowledge, starting from well-known art.

Thus thetechnical value of these inventions is extremely low.
(Defendants Cosmepro et al.'s Allegation)
In view of the history of the respective inventions having been made and thehistory of Defendants Cosmepro et al. having produced and sold the respective
Defendants' products, Defendants Cosmepro et al. neither had intention nor serious fault.
Thus a consideration should be given to this fact in finding an amount of compensation
for damage (Article 102, paragraph (4) of the Patent Act).
12 Issue 6-2 (Plaintiff's amount of damage - Article 102, paragraph (3) of the
Patent Act)
(Plaintiff's allegation)(1) The Defendant's sales figure for the respective Defendant's products are as
per described in the aforesaid item 11 (Plaintiff's allegation).

In view of the following

circumstances, royalty rate of the respective patents should be 10% of the sales figureof the respective Defendant's products.
A Rate by industry and value of the respective patents
According to "Research and study reports on how to utilize patents, etc. in viewof value assessment of intellectual property" (Exhibit Ko 48), an average of royalty rate
for patents in the field of chemistry (questionnaire result) is about 5.3%, and an averageof royalty rate determined by court is described as 6.1% (20% at the maximum).

In

view of the technical value of the respective patents and the relationship between
Plaintiff and Defendant, it is natural that the royalty rate of the respective patents
exceeds this.
The respective Defendants' products are such products with high margins thatgenerate profits 10 times or more of production cost.

Such profit is attributed to

attractive nature and originality of the product of carbonate gel pack.
background, the value of the respective patents makes a great contribution.
49

In theTherefore,

in the determination of royalty rate, such value of the invention should be considerably
considered.

It is natural to set a royalty rate higher than the above-mentioned industry-

standard rate.
B Court decision of the other caseIn a lawsuit between Plaintiff and a company other than Defendants (Hereinafterreferred to as "lawsuit of the other case"), the technical value of the Patent 1 is highly
evaluated, and a court decision rendered to the effect that a compensation in which asales figure of products in issue was multiplied by a royalty rate of 10% should be paid
(Exhibits Ko 29, 30).

In the lawsuit of the case, similar patents cause problems.

Given this, it is reasonable to find a royalty rate similarly.
C Record of settlement with the other infringer
Plaintiff enforced a right on the grounds of the respective patent rights and theother patent rights owned by Plaintiff against a plurality of companies who sold similar
products of carbonate gel packs, and entered into a settlement agreement subject to thesuspension of sales of the products and the payment of a certain amount of settlementmoney.

The amount of settlement money then was set to 10% or more of the sales

figure in principle.

In a settlement where it is taken into consideration that the otherparty voluntarily suspends the sales of the infringing products, 10% or more of the sales
figure was paid.

In view of this, it is unusual that a royalty rate in calculating anamount of compensation for damage against Defendants falls below 10%.
(2) In view of the sales figure of the respective Defendants' products, an amountof loss under Article 102, paragraph (3) of the Patent Act is as per described in thecolumn "an amount of 10% royalty" of the column of the respective Defendants of theattachment "List of claimed amount (Plaintiff's allegation)" (In a case of joint tort being
established, as long as a plurality of Defendants are involved with the production andsales of products, the Defendants have an obligation to jointly pay a compensation fordamage to the extent that overlaps.).

Further, Plaintiff is forced to bear attorney costs.

The attorney cost in association with the tortious act of Defendants does not fall below
an amount of 10% of the above amount.
(3) Defendants' allegation set forth below
The following allegation from Defendants is negated and refuted.
counterargument against Defendants' allegation is as discussed above.

A

The matters as

Defendants' allege are not factors that reduce license fee.
(Defendants' allegation)(1) In Plaintiff's allegation, the fact that a payment of compensation with aroyalty rate of 10% was affirmed in a court decision of the other case is admitted, and50

the remaining is negated and refuted.
(2) A consideration should be given to the description of the item (2) of theaforesaid item 11 (Defendants' allegation) as a reason for reducing a license fee.
reasonable license fee does not exceed 1% of a standard amount.

A

Further, incalculating a reasonable license fee, a consideration is given to: a fact that an agreementof Defendant NeoChemir is necessary for the sales of the respective Defendants'
products, a fact that the respective inventions did not conduct a test, a fact that Exhibit
Ko 48 cited by Plaintiff is based on a questionnaire survey, which must be said to havea low reliability, and a fact that Plaintiff is not at all involved with an act of an inventionof the respective patent rights.
No. 4 Judgment by the Court
1 Issue 1-1 (whether the respective Defendants' products fall within a technicalscope of the respective inventions (the sufficiency of the constituent features 1 -1C and2-1C))(1) Plaintiff alleges that a language of "capable of retaining carbon dioxide in
the form of bubbles" of the constituent features 1-1C and 2-1C is merely a requirementthat only matters in terms of whether or not to contain carbon dioxide in the form of
bubbles in the literature, whereas Defendants see this in a limited interpretation andallege that the language means "to retain carbon dioxide in the form of bubbles, so thata sufficient amount of carbon dioxide in the form of bubbles may supplied tosubcutaneous tissues in a manner that sustained bubbles are observed to the extent thatcauses effects of the respective descriptions such as skin improving effect and partial
adiposeness dissolving action".
A Accordingly, first taking a look at the description of the scope of the claimsof the respective descriptions, as Plaintiff points out, Claim 1 only recites "carbon
dioxide can be retained in the form of bubbles" (constituent features 1-1C, 2-1C).
Literally, there is no description that limits the extent of carbon dioxide in the form of
bubbles that should be contained by a carbon dioxide-containing viscous composition(hereinafter referred to as "a composition of the respective inventions", and in somecases referred to as "a composition of Invention 1" in relation to the respective
inventions).
Further, the respective descriptions do disclose that: [i] the disclosure ofdescription 1 and [0061] disclose that a composition of the respective inventions
comprises 1 to 99 volume %, preferably 5 to 90 volume %, more preferably 10 to 80
volume % of carbon dioxide in the form of bubbles when in use; and [i i] the disclosureof the invention of description 1 and [0017] disclose that an aqueous viscous
51

composition allows "carbon dioxide to retain in the form of bubbles, and in a case of
applying on a skin mucosa or a damaged dermal tissue etc., carbon dioxide b ubbles canbe retained to the extent that can supply a sufficient amount of carbon dioxide tohypodermal tissue etc."

However, the above description [i] is only a part that

describes a preferable means for solving problem.

As is described as "to the exte nt",

a definite numerical limitation has not been made, nor does item 1 of [0007] mention
about the content of carbon dioxide in the form of bubbles in a carbon dioxide containing viscous composition, since it discloses that Invention 2 relates to "carbon
dioxide-containing viscous composition comprising carbon dioxide in the form of
bubbles in an aqueous viscous composition comprising one or more kinds of thickeners,
wherein the thickener is ..." (the disclosure of the invention of the description 1 also
has a similar description).

Further, the above description [ii] ([0017], etc.) definitely

discloses that an aqueous viscous composition is not "particularly limited to the one forretaining carbon dioxide in the form of bubbles".

Thus it cannot be seen that the above

description directly underlies the Defendants' allegation.
In this regard, Defendants put forth the descriptions of [0004] to [0006], [0032],[0066], etc. of description 2 as a basis of their allegation.

These descriptions only

disclose an efficacy and function of a carbon dioxide-containing viscous composition
and a method for obtaining this, as well as an evaluation method and criteria of bubbling.
It cannot be recognized that it is a description that addresses the content of carbon
dioxide in the form of bubbles in the composition.
B Accordingly, a consideration is given to the technical significance of therespective inventions in view of the respective descriptions and the prosecution
histories of the respective patents.
(A)

Summary of the respective descriptions

The respective inventions are "kits for obtaining a carbon dioxide-containing
viscous composition to be used for cosmetics for the improvement of partial
adiposeness or pharmaceutical compositions for the treatment of athlete's foot, atopic
dermatitis, or bedsore" (constituent feature 1-1A) or a method for preparing the same
composition, or "kits for obtaining a carbon dioxide-containing viscous composition to
be used for pharmaceutical compositions or cosmetics" (constituent feature 2-1A).
The summary of the respective descriptions of such inventions is set forth as below.
a Conventional technique
For the treatment of itching, topical antihistamics and anti-allergic agents arecommonly used as a topical therapy.

These are used when itching occurs, totemporarily suppress itching to some extent.
52

For itching associated with eczema,topical non-steroidal anti-inflammatory agent and steroidal agent are commonly used.
These are used to prevent the occurrence of itching by suppressing inflammation([0002]).
However, topical antihistamic agent and anti-allergic agent have almost no effecton itching caused by atopic dermatitis, athlete's foot, and insect bites.

Topical non -steroidal anti-inflammatory agent and steroidal agent have a weak effect on itching andhave no immediate effect.
easy ([0003].

Further, due to strong side effect of steroid, the use is not

The above paragraphs are described in background art of description 1).

b Problem to be solved by the invention
The object of the respective inventions is to provide a formulation effective foritching associated with mucocutaneous disease or mucocutaneous disorder and amethod for the treatment and prevention using the same ([0004]).
Further, the object of the respective inventions is to provide a formulation
effective for skin mucosal damage; graft failure; dental problem; cutaneous ulcer, cold
sense and feeling of numbness associated with peripheral circulatory disturbance;
musculoskeletal complaint; nervous system disease; dyskeratosis; suppurative skindisease; constipation associated with weakness or loss of defecation reflex; hairregrowth suppression after removal of hair (removal of excess hair); beauty problemsof skin and hair; and partial adiposeness, and a method for the prevention and treatmentusing the same formulation ([0005].

The above paragraphs are described inbackground art of description 1).
c Effect of the Invention
As a result of intensive study, the inventors of the respective inventions havefound that a carbon dioxide-containing viscous composition is effective for itching inwhich topical antihistamic agent, anti-allergic agent, non-steroidal anti-inflammatory
agent, and steroidal agent are ineffective, and have further found that the composition
has anti-inflammatory effect, wound healing promoting effect, beauty skin effect,
partial adiposeness improving effect, and transdermal absorption effect to complete therespective inventions ([0006]).
The composition of the respective inventions can treat, prevent, or improve withalmost no side effects problems such as itching associated with mucocutaneous diseaseor mucocutaneous disorder; skin mucosal damage; graft failure; dental problem;
cutaneous ulcer, cold sense and feeling of numbness associated with peripheral
circulatory disturbance;

musculoskeletal

complaint;

nervoussystemdisease;dyskeratosis; suppurative skin disease; constipation associated with weakness or lossof defecation reflex; hair regrowth suppression after removal of hair (removal of excess
53

hair); beauty problems of skin and hair; and if it is used for a desired part, the part canbe slimmed ([0062].

The above paragraphs are described in the disclosure of theInvention of description 1).
d Best Mode for Implementing the Invention
The "aqueous viscous composition" used in the respective inventions is acomposition comprising one or two or more kinds of thickeners dissolved into or
swelled by water.

The composition is not particularly limited as long as it can retaincarbon dioxide in the form of bubbles.

Thickeners used for common pharmaceuticalproducts, cosmetics and foods may be used without limitation.

Agent types may

include the ones commonly applied to skin mucosa, damaged tissue and hair, including
gel, cream, paste, and mousse ([0017]).
A substance generating carbon dioxide by a reaction is reacted in an aqueous
viscous composition to generate carbon dioxide and obtain a carbon dioxide-containing
viscous composition.

A substance generating carbon dioxide may include, forexample, a combination of a carbonate and an acid, specifically a combination of acarbonate-containing viscous composition and granules of acid (fine grains or powders),
may result in a carbon dioxide-containing viscous composition ([0032]).
A composition of the respective inventions including carbon dioxide in the formof bubbles may be produced by mixing the respective components of a kit including acarbonate-containing aqueous viscous composition and granules of acid (fine grains,
powders) when in use ([0018], [0019]).
A carbon dioxide-containing viscous composition of the respective inventions iseffective for the treatment or prevention of itching, various mucocutaneous diseases, or
mucocutaneous disorders, or beauty even when applied to the skin or the mucosa for a
few minutes and wiped immediately; however, it is usually applied to the skin mucosa
or damaged skin tissue, etc. for 5 minutes or more.

Particularly in a treatment of

bedsores, it can be continuously applied for 24 hours or more, and is also very effective
for work saving such as nursing.

In a case where it is used for the purpose of beauty

such as improvement of skin type, one-time use brings about an immediate response.
Upon the increase of hours of use, times of use, and use period, beauty effects arefurther improved.

For the use in partial slimming, a sufficient effect is achieved if

once-daily use is continued for one month or more.

Upon the increase of hours of use,

times of use, and use period, the effect is further improved ([0055]).
Compositions of the respective inventions usually have a volume of 30 or more
after two hours, preferably 50 or more, more preferably 70 or more, given that a volume
when put into a measuring cylinder immediately after preparation is 100 ([0060]).
54

Carbon dioxide-containing viscous compositions of the respective inventions
comprise 1 to 99 volume %, preferably 5 to 90 volume %, more preferably 10 to 80
volume % of carbon dioxide in the form of bubbles when in use ([0061].

The aboveparagraphs are described in the disclosure of the Invention of description 1).
e Example(a)Invention 1

What is disclosed in description 1 as examples is ones in which a carbonate, anacid, water, and a thickener are mixed together.

Among them, the examples ofInvention 1 are Examples 109 to 144, Examples 227 to 249, and the below-mentioned
Examples 296 and 298.
In the former two examples, an assessment of bubbling ability and sustainabilityof bubbling was made for the produced compositions.

Particularly regarding the

bubbling ability, an increase rate of volume one-minute after stirring and mixing 20
times in 10 seconds was calculated from an initial volume of an aqueous viscouscomposition and granules, and an increase rate of 70% or more was evaluated as +++,
50% to 70% was evaluated as ++, 30% to 50% was evaluated as +, and 30% or less wasevaluated as 0 (evaluation criterion 1).

Particularly regarding the sustainability of

bubbles, from a volume one-minute after stirring and mixing an aqueous viscouscomposition and granules 20 times for 10 seconds there was calculated a decrease rateof the volume when two hours passed from then, and a decrease rate of 20% or less wasevaluated as +++, 20% to 40% was evaluated as ++, 40% to 60% was evaluated as +,and 60% or more was evaluated as 0 (evaluation criterion 2).

Further, in the above -mentioned examples, the bubbling ability was + for one case, and ++ or +++ for theother cases, and the sustainability of bubbles was ++ or +++ (Tables 10 to 12, 20, 2 1).
Description 1 describes a result of a test in which compositions of a part of theexamples were applied for a subject's skin.

Treatment tests were conducted in the test

examples 19 and 20 for a composition of Example 296, which was a composition of
Invention 1, in the test example 26 for a composition of Example 298, and in the test
example 33 for a composition of Example 135.

Itching immediately disappeared by

the attachment for 30 minutes, and cornification and drying of epidermis of the affectedpart were significantly improved (test example 19), and the attachment by daily
exchange resulted in epithelialization without forming crusta on Day 2, and healing
without scarring on Day 5 (test example 20) (Best Mode for Carrying Out the Inventionof description 1).
(b) Invention 2
Description 2 describes the same examples as description 1.
55

Particularly, what

corresponds to the examples of Invention 2 is Examples 109 to 144, Examples 145 to
179, Examples 227 to 249, and Examples 296 and 298.
The description of the examples other than Examples 145 to 179 is the same asthat for Invention 1 ([0075] to [0079], [0089] to [0093], [0100], [0101], [0103]).

The

remaining Examples 145 to 179 also made an assessment of bubbling ability andsustainability of bubbling for produced compositions.

The bubbling ability was + for

one case and ++ or +++ for the other cases, whereas the bubbling sustainability was ++or +++ (Tables 13 to 15).
Description 2 also describes a result of a test in which compositions of a par t ofexamples were applied to patients' skin, and the content is the same as description 1([0123], [0124], [0130], [0137]).

Further, test example 27 conducted a treatment testof canker sore for a composition of Example 170, which was a composition of Invention
2, and discloses that coating for 20 minutes immediately diminished pain ([0131]).
(B) The prosecution history of the respective patentsa Invention 1(a) For the patent application according to Invention 1, a reason for refusal was
given on March 3, 2006, and the summary of the reason is that on the basis of the cited
documents such as the publication of Ishigaki invention 1 (Exhibits Otsu E all 4, 37.
Hereinafter referred to as "Publication A2" in some cases in this item), a claimed
invention before the below-mentioned amendment cannot be granted a patent under theprovision of Article 29, paragraph (2) of the Patent Act.
In contrast, Plaintiff submitted a written amendment on May 12, 2006 and madean amendment to limit the use of the carbon dioxide-containing viscous composition ofClaim 1 to cosmetics or pharmaceutical compositions.

Further, Plaintiff submitted awritten opinion on the same date and set forth as below.

First, regarding the featureof Invention 1, [i] conventional cosmetics and pharmaceutical compositions are capableof generating carbon dioxide, but unable to retain carbon dioxide in the form of bubbles.
Thus it was difficult to effectively develop an action of carbon dioxide in the form of
bubbles.

On the other hand, all the combinations in a kit of Claim 1 (Note: includes a

combination of Claim 1 of the respective inventions) comprise in advance an aqueous
viscous composition that can retain carbon dioxide in the form of bubbles by comprising
one kind or two kinds or more thickeners, and are designed to cause a carbonate and anacid to react with each other in the aqueous viscous composition.

Therefore, a kit ofInvention 1 allows us to obtain a carbon dioxide-containing viscous composition
comprising carbon dioxide in the form of bubbles. [ii] As seen above, a carbon dioxidecontaining viscous composition prepared by a kit of Invention 1 retains carbon dioxide56

in the form of bubbles, and thus the use of this as a cosmetic or pharmaceuticalcomposition allows sufficient supply of carbon dioxide in the form of bubbles to a
subcutaneous tissue, and at an applied site, carbon dioxide in the form of bubbles may
effectively function.

For the above reason, a carbon dioxide-containing viscouscomposition prepared by a kit of Invention 1 causes various significantly excellent
useful effects.
Further, [iii] cited documents fail to teach or suggest the constitution of Invention
1.

Further, even a person skilled in the art could not easily conceive of a special

constitution of Invention 1 and a significant effect caused by such constitution on thebasis of the documents, [iv] regarding a publication of Ishigaki invention 1, "It simply
describes a bubbling powder cosmetics for the purpose of massaging effect caused bya bubbling function, and does not disclose an aqueous viscous composition capable ofretaining carbon dioxide in the form of bubbles." "Furthermore, Publication A2 only
describes a bubbling powder cosmetic as being used by mixing a first agent comprisingsodium hydrogen carbonate with a second agent comprising an acid, and it fails to
specifically describe the preliminary preparation of aqueous viscous composition andthe reaction of sodium hydrogen carbonate with an acid in the aqueous viscouscomposition." "In usual cases, a thickener does not perform thickening function
instantly upon contact with water, but exhibits viscosity by dispersing or swelling into
water.

Therefore, a simple simultaneous mixture of a thickener, a carbonate, an acid,and water without the preliminary preparation of an aqueous viscous composition
would cause carbon dioxide generated by the reaction of a carbonate and an acid to be
diffused into the air and lost while a thickener contacts with water to cause stickiness.
Taking this into account, like a bubbling powder cosmetics of Publication A2, a simple
mixture of a thickener, a carbonate, an acid, and water does not result in an aqueous
viscous composition that retains carbon dioxide in the form of bubbles without
preliminarily preparing an aqueous viscous composition, or otherwise fails to retain asmall amount of carbon dioxide in the form of bubbles.

It only results in an aqueous

viscous composition that could not cause a significant effect of the Invention."(Hereinabove Exhibit Otsu E all 1-1).
(b) Thereafter, Plaintiff submitted a written amendment on February 6, 2007, but
a decision of rejection was issued.

Plaintiff filed a notice of appeal (Exhibit Ko 27),

and further made an amendment, but a reason for refusal was issued on June 30, 2010
for a claimed invention after the amendment, and a summary of the reason is that
Invention 1 does not involve an inventive step according to cited documents such as
Japanese Unexamined Patent Application Publication No. 1985-215606 (Exhibit Otsu
57

E all 3; hereinafter referred to as "document 1" in the item).
In contrast, Plaintiff submitted a written amendment on September 6, in the same
year to specify combinations of Claim 1 and specify that an aqueous viscouscomposition comprises sodium alginate as a gelling agent.
submitted a written opinion on the same date and set forth as below.

Further, Plaintiff
First, regarding

a feature of Invention 1, [i] all the combinations in a kit of Claim 1 comprise an aqueous
viscous composition comprising sodium alginate in advance, and on the basis of theconstitution, it is designed to react a carbonate with an acid in the aqueous viscouscomposition and retain generated carbon dioxide.

Therefore, a kit of Invention 1

allows us to obtain a carbon dioxide-containing viscous composition comprising carbon
dioxide in the form of bubbles.

Further, an aqueous viscous composition comprisingsodium alginate can maintain viscosity in a sustained manner without forming a film
on a skin when coated on the skin, and thus a carbon dioxide-containing viscouscomposition obtained by a kit of Invention 1 is capable of effectively maintaining
generated carbon dioxide and extremely increasing a penetrating amount of carbon
dioxide into the skin.

Furthermore, a carbon dioxide-containing viscous composition

obtained by a kit of Invention 1 has a particularly significant effect for the treatment of
athlete's foot, atopic dermatitis, or bedsore and the improvement of partial adiposenessdue to its extremely high penetrating effect of carbon dioxide into the skin.
Further, [ii] "As document 1 discloses, in a case of mixing an acid-containing
viscous composition and a carbonate-containing viscous composition when in use,
viscous fluids are hard to mix.

Thus it is difficult to mix them easily and uniformly.

As a result, this causes an insufficient and inhomogeneous generation of carbon dioxide.
In contrast, the present invention is designed to mix an aqueous viscous composition
with granules, and the uniform mixture of a viscous fluid and a solid can be easily
implemented.

Thus a uniform mixture of them when in use is easy, and carbon dioxide

can be sufficiently and uniformly generated." "Furthermore, as disclosed in document
1, an acid-containing viscous composition and a carbonate-containing viscouscomposition are present in a state in which an acid and a carbonate have been alreadydissolved into a viscous composition.

Thus mixing them results in instant generationof a large amount of carbon dioxide bubbles that exceeds an ability of an aqueous
viscous composition to retain carbon dioxide.

As a result, carbon dioxide diffuses into

the air, thereby failing to penetrate a sufficient amount of carbon dioxide into the skin.
In contrast, like the present invention, when granules comprising an acid or granules
comprising an acid and a carbonate are mixed in an aqueous viscous composition,
granules comprising an acid or granules comprising an acid and a carbonate are58

gradually released in the aqueous viscous composition, thereby generating carbon
dioxide in a sustained manner.

The present invention is designed to generate carbon

dioxide in such a sustained manner, and is capable of continuously penetrating a large
amount of carbon dioxide into the skin in a sustained manner from the aqueous viscouscomposition." Cited documents including document 1 do not disclose the constitutionof Claim 1 after the Amendment.

A viscous composition capable of penetrating alarge amount of carbon dioxide into the skin in a sustained manner without formi ng afilm on the skin is not easily conceivable.

[iv] Plaintiff further mentions that "thepresent invention generates carbon dioxide in an aqueous viscous composition in asustained manner, and further seals this in the aqueous viscous composition, there byincreasing a pressure of carbon dioxide in the form of bubbles, and the pressure
promotes the penetration of carbon dioxide into the skin, and further allows an
unimaginable amount of carbon dioxide to penetrate into the skin and significantly
causes the treatment effect of athlete's foot, atopic dermatitis, or bedsore as well as the
improvement effect of partial adiposeness." "Conventionally, it is publicly known thatcarbon dioxide has a blood circulation promoting effect.

However, even if one could

expect that blood circulation temporarily provides a benefit to the skin, there is no way
athlete's foot, atopic dermatitis, bedsore, or partial adiposeness may be drasticallytreated or improved.

The inventor (Doctor Masato HIOKI), who is a medical

practitioner, assumes that a particularly significant effect of the present invention isassociated with an extra function such as neoangiogenesis in addition to a blood
circulation prominent effect by penetrating a large amount of carbon dioxide into theskin in a sustained manner.

Rather, unless it is supposed that an unknown, extra

function in addition to a blood circulation promoting effect is involved, it is difficult to
logically explain such a particularly significant effect by only a blood circulation
prominent effect." Such particularly significant effect "could not be expected at all"from cited documents. (Hereinafter Exhibit Otsu E all 1-2).
(c) Thereafter, a decision to grant a patent was made for Invention 1.
b Invention 2(a) For the patent application according to Invention 2, a reason for refusal wasissued on March 4, 2011, and the summary of the reason is that on the basis of the cited
documents such as the publication of Ishigaki invention 1 and Japanese Unexamined
Patent Application Publication No. 1996-268828 (hereinafter referred to as "Cited
document A6" or "A6"), Invention 2 does not involve an inventive step (Exhibit Ko 28).
In response, Plaintiff submitted a written amendment on May 6, 2011 and madean amendment to limit "a kit for obtaining a carbon dioxide-containing viscous
59

composition" of Claim 1 to "a kit for obtaining a carbon dioxide-containing viscouscomposition to be used for pharmaceutical composition or cosmetics".

Further,

Plaintiff submitted a written opinion on the same date, and mentioned the same thing
as that presented in the respective written opinions of the above item a with regard to
the feature and the inventive step of Invention 2.

Further, Plaintiff discussed Cited

document A6 as in the following: "It discloses a pack cosmetic characterized incomprising 5 to 60 % by weight of a carbonate, 5 to 60 % by weight of an organic acid,a heat generating substance, and a foam stabilizer (see Claim 1).

However, the packcosmetics of A6 does not comprise "an aqueous viscous composition comprisingsodium alginate" that has been prepared in advance, but is designed to mix a non aqueous composition comprising a carbonate, an organic acid, a heat generating
substance, and a foam stabilizer with water when in use.

Specifical ly, in a packcosmetics of A6, a carbonate and an acid react to cause the resultant carbon dioxide to
be diffused into the air and lost while a thickener contacts with water to cause stickiness.
As a result, carbon dioxide in the form of bubbles cannot be retained sufficiently." Thisis "supported by a result of "comparative examples in which one agent consists only ofwater.”
Further, in the above written opinion, in a case of preliminarily preparing anaqueous viscous composition and mixing a carbonate and an acid in the aqueous viscouscomposition, and in a case of mixing a thickener, a carbonate, an acid, and water in theother embodiments, for the purpose of assessing an amount of retained carbon dioxidein the obtained respective compositions, the following experiments were implemented:[i] experimental examples where an aqueous viscous composition with a first agent of
granules comprising an acid and a second agent comprising a carbonate and sodium
alginate were mixed; and [ii] four comparative experimental examples with a first agentof only water or water and citric acid and a second agent of sodium hydrogen carbonate
free of water (see Exhibit Otsu A117-2).

Further, in the above written opinion, as anexperimental result, the experimental example sufficiently retains carbon dioxide in theform of bubbles even 10 minutes after mixing and stirring, whereas in an experimental
example with a first agent of water only, the comparative experimental example fails toretain carbon dioxide in the form of bubbles due to the diffusion of carbon dioxide into
the air, or fails to retain carbon dioxide in the form of bubbles one to two minutes after
mixing and stirring, and in an experimental example with a first agent of water andcitric acid, carbon dioxide in the form of bubbles could not be retained (Hereinbefore
Exhibit Otsu E all 2).
(b) Thereafter, a decision to grant a patent was made for Invention 2.
60

(C) Publicly known art of the effects of carbon dioxidea Exhibit Otsu A111 (Japanese Unexamined Patent Application Publication No.
1984-141512)
This document describes an invention of cosmetics, and discloses that "It is
known that carbonate gas has a blood vessel expansion effect, and has a clinical use
such as carbonate gas bath for rehabilitation." (Page 1, left column, line 14 to rightcolumn, line 2) (Exhibit Otsu A115 also has a similar description of medicatedcosmetics or cosmetics).
b Exhibit Otsu A105, 114, Exhibit Otsu E all 3 (Japanese Unexamined Patent
Application Publication No. 1985-215606)
This document describes an invention of "a pack characterized in comprisingcarbonate gas or a carbonate gas generating substance" (Claim 1), and that "theinventors have ... intensively investigated in an attempt to provide a pack that promotes
blood circulation, and finally found that a direct action of carbonate gas on the skin
improves blood circulation of the skin and provides skin with moist feeling, to thereby
complete the Invention" (page 2, left upper column, lines 1 to 6).
c Kanebo's publication (Exhibit Otsu A102, Exhibit Otsu E all 6)
This document is a publication of unexamined patent application according to
the Kanebo example invention and Kanebo comparative example invention of the case,and it discloses that "Conventionally cosmetics mixed with carbonate gas for the
purpose of blood circulation promotion are proposed." (page 1, left column, lines 17 to
18).
(D) In view of the foregoing, a consideration is given to a technical significanceof the respective inventions.
a In view of the description of Background Art of the respective descriptions,
there was a problem that topical antihistamic agent and anti-allergic agent had almost
no effect on itching caused by atopic dermatitis, athlete's foot, and insect bites, andtopical non-steroidal anti-inflammatory agent and steroidal agent had a weak effect onitching and had no immediate effect.

It is thus recognized that the respective

inventions have a goal for discovering a treatment method effective for them.
Further, it can be seen from the scope of the claims and the description of therespective descriptions that the respective inventions reacts a carbonate and an acid in
an aqueous viscous composition that can retain carbon dioxide in the form of bubbles
to contain bubbling carbon dioxide in a composition to obtain a carbon dioxidecontaining viscous composition, which is used for a pharmaceutical composition or
cosmetics.
61

First of all, in view of the aforesaid publicly known techniques, carbon dioxide
is known to have a function of blood circulation promotion.
invented to cause carbon dioxide to act on the skin.

Pack and cosmetics are

These products supply carbon

dioxide included in a pack, etc. to a subcutaneous tissue to exhibit blood circulation
promoting effect.
Consequently, it is reasonable to find that the technical significance of therespective inventions does not simply utilize carbon dioxide, but prepares an aqueous
viscous composition in advance (the disclosure of the invention and the best mode forcarrying out the invention of the description 1, [0032], [0075], [0079], [0089]), andcauses carbon dioxide in the form of bubbles to be retained in the composition andapplied to a skin mucosa or damaged skin tissue, etc. to cause carbon dioxide to besupplied to a subcutaneous tissue (the disclosure of the invention of description 1,[0017]).
Further, in view of the prosecution history of the respective patents of theaforesaid findings, similarly to the respective inventions, a pack cosmetic in whichcarbon dioxide generated by the reaction of a carbonate and an acid is retained in a
viscous composition as bubbles has been already disclosed in cited document A6, which
is a cited document of the notice of reasons for refusal for Invention 2.

In Cited

document A6, a thickener is contained in a composite powder of a carbonate and anacid, and the thickener is mixed with water when in use (on-demand preparation).
Thus it takes time for a thickener to be dissolved into water and exhibit viscosity.

Inthe meantime, carbon dioxide generated by the reaction of a carbonate and an acid isdiffused into the air, whereas in the respective inventions, a thickener is dissolved into
water in advance (preliminary preparation, constituent features 1-1B, 2-1B).

Carbondioxide generates by the reaction of a carbonate and an acid in a viscous composition.
Therefore, generated carbon dioxide does not diffuse into the air, which causes morecarbon dioxide to be retained in the composition and supplied to a subcutaneous tissue
in a sustained manner (This is not recognized as easily conceivable on the basis of apublicly known technique, as per the determination of the below-mentioned issues 3-4
and 3-5.).
b Further, the effects of preliminary preparation can be observed by thecomparison between "the sustainability of bubbles" of the examples of the respective
descriptions and an experimental result of the comparative examples of the written
opinion against a notice of reasons for refusal for Invention 2.
Further, according to Exhibit Ko 32, carbon dioxide-generating packs of ondemand preparation-type and preliminary preparation-type are respectively coated on62the skin.

The preliminary preparation-type maintained a volume about two times aninitial volume even after two hours from the completion of stirring operation and theskin exhibited quite red color, whereas an on-demand preparation-type decreased toalmost the same volume as an initial volume 30 minutes after the completion of stirring
operation, so that a difference in color between a coated part and a non-coated part is
not recognized.

It can be seen that a preliminary preparation-type is superior insustainability and transdermal absorption of carbon dioxide.
Furthermore, Defendant NeoChemir implements an experiment similar to theabove experiment made by Plaintiff.

The result was submitted as Exhibit Otsu A3.

Exhibit Otsu A3 corresponds to Exhibit Ko 32.

A composition mixed and stirred for

10 seconds had an increased volume after two hours compared to a volume after one
minute in a preliminary preparation type, whereas it showed a 30% decrease from a
volume after one minute in an on-demand preparation type (a time for stirring is 10
seconds, similarly to the preliminary preparation type).

It showed poor sustainabilityof bubbles.
First of all, Exhibit Otsu A3 conducted transdermal absorption simulation
experiments, in which there was no significant difference between them in total
permeable amount of carbon dioxide in gas permeable films when 30 minutes passed
after the completion of stirring operation.

Further, regarding an experimental resultof Exhibit Otsu A3, an amount of transdermal absorption of carbon dioxide is simulated
by use of gas permeable films.

According to Exhibit Otsu A11, the amount oftransdermal absorption is associated with a degree of reddening of a skin in thisexperimentation.

Thus it has reasonable reliability as a measurement of an amount oftransdermal absorption of carbon dioxide.
A3, 5% butyleneglycol is added.

Further, in an experiment of Exhibit Otsu

This is described as components that can be mixed

as a moisturizer in the respective descriptions (Disclosure of the Invention of thedescription 1, [0046]).

Thus it is believed that there is no particular problem to add

this for a comparative experimentation.

Consequently, an experimental result of

Exhibit Otsu A3 has considerable reliability as a comparative result where 5%
butyleneglycol was added.

What was measured therein is an amount of transdermal

absorption of carbon dioxide when 30 minutes passed after the completion of stirring.
Thus it does not show that there is no significant difference between an on -demand
preparation-type and a preliminary preparation-type in transdermal absorption 2 hours
after stirring and mixing as like evaluation criterion 2 of the examples of the respective
descriptions.
Additionally, Defendant NeoChemir submitted Exhibit Otsu A 108 to 116 for the63purpose of establishing the fact that the sustainability of bubbles does not change byeither of on-demand preparation or preliminary preparation.

Exhibit Otsu A108

controlled a reaction of generating carbon dioxide by a polyethyleneglycol membrane
similar to the Kanebo example invention, and thus it is inappropriate for the comparison
between on-demand preparation and preliminary preparation.

Exhibit Otsu A116 does

not have such a membrane, a trend of the sustainability of bubbles after two hours does
not coincide with the above Exhibit Otsu A3, and thus it cannot be adopted.
In view of the foregoing, there is no significant difference between preliminary
preparation-type and on-demand preparation-type until 30 minutes have passed after
the completion of stirring in a case of adding 5% butyleneglycol.

Fundamentally, it isreasonable to find that the preliminary preparation-type retains more carbon dioxideand has an effect of supplying it to subcutaneous tissues, etc. in a sustained manner.
c Further, the respective inventions retain more carbon dioxide in a carbon
dioxide-containing viscous composition and supply it to subcutaneous tissues, etc. in asustained manner.

In view of this, it is reasonably understood from these matters oncommon general knowledge that an effect and efficacy on the skin due to blood
circulation promoting effect of carbon dioxide known in publicly known art would becaused.

Taking this into consideration, the respective descriptions refer to an object

to provide a formulation effective for itching associated with mucocutaneous disease or
mucocutaneous disorder as well as a treatment and prevention method using the same
(Background Art of the description 1, [0004], [0005]) because it has an objective toachieve an effect of supplying carbon dioxide to subcutaneous tissues in a sustainedmanner.

Further, it is reasonable to understand that the respective inventions call forthe effects of treating, preventing, or improving with almost no side effects such as
itching associated with mucocutaneous disease or mucocutaneous disorder; skinmucosal damage; graft failure; dental problem; cutaneous ulcer, cold sense and feelingof numbness associated with peripheral circulatory disturbance; musculoskeletal
complaint; nervous system disease; dyskeratosis; suppurative skin disease; constipation
associated with weakness or loss of defecation reflex; hair regrowth suppression after
removal of hair (removal of excess hair); beauty problems of skin and hair; and if it isused for a desired part, the part can be slimmed (Disclosure of the Invention ofdescription 1, [0062]) because sustained supply of carbon dioxide to subcutaneous
tissues etc. is achieved.

It is reasonable to understand that the respective inventions

do not call for particularly significant effects that go beyond the effects of retaining
more carbon dioxide in a composition, and supplying to subcutaneous tissues, etc. in asustained manner by a preliminary preparation.
64

(E) As seen above, the respective inventions are characterized by the preliminary
preparation allowing more carbon dioxide to be retained in a composition and supplie dto subcutaneous tissues in a sustained manner.

No matter how much carbon dioxide

is generated by a carbonate and an acid, such effect is caused.

Thus, although it isnecessary to contain carbon dioxide in the form of bubbles in a composition, and theamount is preferably large (Disclosure of the Invention of the description 1, [0061]), it
cannot be recognized that an amount of carbon dioxide in the form of bubbles in acomposition should be more than a certain amount.

In addition, the examples of therespective descriptions evaluated bubbling ability as well as sustainability of bubbling.
In view of the Plaintiff's allegation of the content of the conventional technique and theprosecution history of the respective patents, it cannot be seen from the description of
the examples that the respective inventions made a limitation to the bubbling ability.
C Defendants' allegation(A) First, Defendants allege that the respective inventions are characterized in
the occurrence of an epoch-making therapeutic effect that has never seen before.
Indeed, the respective descriptions describe a result of conducting a treatment
test for multiple kinds of carbon dioxide-containing viscous compositions with a similar
composition to the respective inventions.

These descriptions describe that excellent

results including healing of diseases were obtained.

However, as aforementioned, therespective inventions are characterized in that they allow more carbon oxide to beretained in a composition by a preliminary preparation, and supplied to subcutaneous
tissues in a sustained manner.

As per the determination about the below -mentioned

issues 3-4 and 3-5, it cannot be recognized that the constitution of adopting thepreliminary preparation was easily conceivable on the basis of publicly known
techniques.

In view of this, the inventive step of the respective inventions is not firstestablished by achieving an excellent result like a test example of the respective
descriptions.

Consequently, these test examples only have a meaning showing that a

carbon dioxide-containing viscous composition with a composition similar to therespective inventions may bring about an excellent result in a specific mixing amountor for specific subjects in some cases.

It is not reasonable to unde rstand that therespective inventions may always bring about such a result.

In other words, it is notreasonable to understand that the essential effects of the respective inventions are likethe effects observed in the test examples.

Therefore, the above Defendants' allegation

is not acceptable.
(B) Further, Defendants rely on the Plaintiff's allegation in the prosecution
history of the application of the respective patents (Exhibit Otsu E all 1, 2) as a ground65

for their own allegation.
However, the description of Exhibits Otsu E all 1 and 2 as Defendants point out
explains a function and effect caused by retaining carbon dioxide in the form of bubbles
in a composition of the respective inventions and releasing it in a sustained manner.

Itcannot be recognized that its amount matters.
Indeed, Plaintiff highlighted in the written opinion according to the respective
inventions that the effects demonstrated by the test result of the respective descriptions
are particularly significant effects based on a function of permeating carbon dioxide
into a skin, and the effects cannot be expected from a simple blood circulation
promoting effect of carbon dioxide.

However, Plaintiff had insisted in the above

written opinion that the constitution of the respective inventions was first of all noteasily conceivable on the basis of the cited documents of the notice of reasons forrefusal before alleging that the respective inventions cause a particularly significant
effect.

Consequently, as mentioned below, supposing that it cannot be recognized thatthe constitution of the respective inventions was easily conceivable on the basis of
publicly known technique, the inventive step is not supported by the above explanationof particularly significant effect by Plaintiff.

Therefore, it is not reasonable toconstrue the respective inventions in a limited sense by the above Plaintiff's explanation.
The above finding is not affected by the Plaintiff's allegation in the prosecution historyof the respective patents.
(C) Furthermore, Defendants allege that a pack utilizing carbonate gas or the
bubbling effect of carbonate gas-generating substance was well-known in a cosmetic
for facial treatment.

The respective inventions are inventions with a purpose ofretaining carbon dioxide in the form of bubbles in a composition and releasing it in asustained manner to supply carbon dioxide to subcutaneous tissues.

It does not simply

provide a pack utilizing carbonate gas or the bubbling function of carbonate gas generating substance.

Therefore, it cannot be said that the above Defendants'

allegation affects the above finding.
(2) Taking the above into account, it is reasonable to understand that thelanguage of "capable of retaining carbon dioxide in the form of bubbles" of constituen t
features 1-1C and 2-1C literally means that a composition of the respective inventions
can retain carbon dioxide in the form of bubbles.

It cannot be construed that alimitation should be made as Defendants allege.
(3) Accordingly, a consideration is given as to whether the respective
Defendants' products have such configuration.

Defendants only address an amount ofcarbon dioxide in the form of bubbles for a composition obtained from the respective
66

Defendants' products, and do not refute the fact itself that the composition contains andretains carbon dioxide in the form of bubbles.
Further, according to Exhibits Ko 25, 26, and 42, it is recognized that
Defendant's products 1 to 8 and 11 to 18 contain and retain carbon dioxide in the formof bubbles in a gel for 20 minutes or more after mixing the gel and granules.

Further,

although there is no experimental result for Defendant's product 9, it has same
compositions as a gel and granules of Defendant's product 12.

Thus, it is assumed thatthe sustainability of bubbling of Defendant's product 9 was at a similar level toDefendant's product 12.

In addition, it can be seen from Exhibits Otsu A1 and 8 thatan increase rate of volume of a composition one minute after mixing and stirring 25 gof carbonate-containing aqueous viscous composition and 1.2 g of an acid of the
Defendant's product 1 to 17 20 times for 10 seconds was 27% for a higher product(Defendant's product 17) and 12% for a lower product (Defendant's product 3).

It canbe recognized from these documents that compositions obtained from the respective
Defendants' products retain carbon dioxide in the form of bubbles and release it in asustained manner.
In this regard, Defendants point out that an increase rate of the above volume
one minute after stirring corresponds to the lowest rank ("0") of the evaluation criterion
1 for the bubbling ability of the respective descriptions.

The respective descriptions

cannot be construed as specifying bubbling ability, as aforementioned.

Therefore, itcannot be recognized that "0" of the evaluation criterion 1 for the bubbling ability isused as not causing a function and effect of the respective inventions.

Further, Exhibit

Otsu E all 10 does not negate the fact that Defendant's product 2 retains carbon dioxidein the form of bubbles.

Thus this does not affect the above findings.

(4) Based on the above, a composition obtained by the respective Defendant's
products are one capable of retaining carbon dioxide in the form of bubbles, and therespective Defendant's products satisfy constituent features 1-1C and 2-1C.
2 Issue 1-2 (Whether the respective Defendants' products fall within a technicalscope of the respective inventions, and indirect infringement (the sufficiency ofconstituent feature 1-1A, etc.))(1) The sufficiency of constituent feature 1-1A
The respective Defendants' products are cosmetic kits for pack.

According to

the finding of the aforesaid item 1, they are kits for obtaining a carbon dioxide containing viscous composition.

Further, it is known that carbon dioxide has a partial

slimming and slimming effect (Exhibits Ko 11, 12, 17, 19, and 21), and a viscouscomposition obtained from the respective Defendants' products is described as being67

used for coating on the whole face (Exhibits Ko 7, 8, 10, 17, 20, 24, the overall gist oforal proceedings), the face is a part for the improvement of partial adiposeness (Exhibits
Ko 10, 17, 24, the overall gist of oral proceedings).
In fact, the respective Defendants' products included ones that called for a partial
slimming or slimming effect as an expected effect in the advertisements (Exhibits Ko
17, 19.

Defendants allege that these are exaggerations, but what was promoted andadvertised is clear and definite, and thus the Defendants' allegation is not acceptable);a similar description can be found in the promotion and advertisement by the sellers of
the respective Defendants' products (Exhibits Ko 10, 13, 15, 18, 24).

It is hard tobelieve that the Defendants who were manufacturers and distributors of the respective
Defendants' products were not involved with the content of the advertisement.

It isassumed that the Defendant's recognition was reflected on the promotion andadvertisement.

Further, Defendant NeoChemir and its representative refe r to a partial

slimming effect caused by carbonate gas on a website and in articles (Exhibits Ko 11,
12; defendants allege that Exhibit Ko 12 is a description of a technique in which carbon
dioxide is dissolved into water, but as per the aforesaid ruling, it is indefinite as towhether or not the respective inventions might transdermally absorb carbon dioxide in
the form of bubbles in a composition as they are.

The above finding is not affected by

the Defendants' allegation.).
In addition, Defendants allege that not all the respective Defendants' products
are cosmetics for the improvement of partial adiposeness.

The respective Defendants'

products have almost the same composition and have a common point in that they arecosmetics for pack for obtaining a carbon dioxide-containing viscous composition.
view of the above findings, the above Defendants' allegation is not acceptable.

In

Further,

Defendants allege that "carbonate gas" pack only has a swelling removal effect, and afacial contour slimming effect is an effect different from partial adiposeness
improvement in relation to Issue 6.

It cannot be seen that Examples 8, 9, and 13 of

the respective descriptions distinguish these effects.

Exhibit Ko 54 discloses that "theadiposeness is classified into a type of simply deposition of fat and a type of swelling".
In view of these facts, the Defendants' allegation is not acceptable.

Furthermore,

Defendants point out that some of promotion and advertisement do not refer to a partial
adiposeness improving effect (Exhibits Otsu A36 to 45).

It cannot be recognized thatthey excluded the use for partial adiposeness improvement.
As aforementioned, it can be recognized that the respective Defendants' products
have their use in obtaining a carbon dioxide-containing viscous composition to be used
as a cosmetic for the improvement of partial adiposeness, and kits for obtaining a carbon
68dioxide-containing viscous composition to be used as a cosmetic for the improvementon partial adiposeness.

Therefore, the products satisfy the constituent features 1-1Aand 2-1A.
(2) The sufficiency of constituent feature 1-1D
Besides the constitution of the respective Defendant's products and a method for
use thereof (Aforesaid No. 2, 2(5)C), according to the aforesaid finding 1, the respective
Defendant's products satisfy constituent feature 1-1D, and constituent feature 1-1.
(3) The sufficiency of constituent features 1-4 and 1-5
The ingredients labels of the gels of the respective Defendants' products are as
per described in the column of "gel" of the attachment "List of Defendants' products".
Water is listed at the top, and the order of the list of sodium alginate is as per describedin the same column.

Further, it can be seen from Exhibits Ko 25, 26, 42, Exhibits Otsu

A1, 8 that an aqueous viscous composition obtained from the respective Defendants'
products have a certain level of viscosity.

In view of the fact that Defendants do not

positively provide counter evidence, it is recognized from the overall gist of oralproceedings that an aqueous viscous composition obtained from the respective
Defendants' products comprise 2 % by weight or more of sodium alginate and 87 % byweight or more of water.
Therefore, the respective Defendants' products satisfy constituent features 1-4
and 1-5.
(4) Whether or not indirect infringement of Inventions 1-7 and 1-8 is establishedAccording to the above findings including the aforesaid item (1), purchasers of
the respective Defendants' products can obtain a carbon dioxide-containing viscouscomposition by the kit, and a viscous composition obtained from the respective
Defendants' products is used by coating on the whole face.

Therefore, it cannot berecognized that there is a use other than a use for cosmetics for the improvement ofpartial adiposeness in the respective Defendants' products.
Therefore, the Defendants' act of producing and selling the respective
Defendants' products corresponds to an act of indirect infringement of Inventions 1 -7
and 1-8 (Article 101, item (i) of the Patent Act).
(5) Whether or not an indirect infringement of Inventions 1-9, 1-12, and 1-13 isestablishedThe respective Defendants' products are sold as a kit including two agents of agel and granules.

The outer case describes a method for use that th ese two agents are

mixed and coated on the whole face (Exhibits Ko 7, 8, 17, 20, the overall gist of oralproceedings).

This suggests that a person who purchases the respective Defendants'
69

products prepares a pack cosmetics including carbon dioxide by mix ing two agents byherself.
Further, it cannot be recognized from the finding and ruling of theaforementioned item (4) that there is any use other than cosmetics for the improvementof partial adiposeness in the respective Defendants' products.
Therefore, the Defendants' act of producing and selling the respective
Defendants' products corresponds to an act of indirect infringement of Inventions 1 -9,
1-12, and 1-13 (Article 101, item (iv) of the Patent Act).
(6) The sufficiency of constituent features 2-1, 2-4, and 2-5
In view of the above findings, the respective Defendants' products are kits for
obtaining a carbon dioxide-containing viscous composition to be used as a cosmetic(constituent feature 2-1A), and the sufficiency of the other constituent features isrecognized.
(7) Whether or not an indirect infringement of the constituent feature 2 -7 isestablished
It is recognized that a purchaser of the respective Defendants' products can obtaina carbon dioxide-containing viscous composition by a kit of the respective Defendants'
products and use it as cosmetics.

Further, it cannot be recognized from theaforementioned facts that there is any use other than cosmetics in the respective
Defendants' products.
Therefore, the Defendants' act of producing and selling the respective
Defendants' products corresponds to an act of indirect infringement of Invention 2 -7
(Article 101, item (i) of the Patent Act).
(8) Regarding the acts of production and sales of granules by Defendant
NeoChemir
As per the above findings, Defendant NeoChemir produces and sells granules of
the Defendant's products 2, 5, 6, 7, 9, 11 to 14, and 16 to 18.

The above Defendant's

products consisting of a gel produced and sold by Defendants and the granules fallwithin a technical scope of Inventions 1-1, 1-4, 1-5 and Inventions 2-1, 2-4, and 2-5.
Further, as per the aforesaid findings, the granules include lactose.

It is recognizedthat this delays the reaction of malic acid included in granules and sodium hydrogencarbonate included in a gel to make a sustained-release composition (Exhibits Otsu A18
to 20).

Consequently, granules sold to Defendants by Defendant NeoChemir were

produced and sold as the one to be sold with a gel produced and sold by Defendants.
Therefore, it cannot be seen that there is any other economical, commercial, or practicaluse.
70

Therefore, the Defendant NeoChemir's act of producing and selling granules
corresponds to an act of indirect infringement of the respective inventions (Article 101,
item (i) of the Patent Act).
3 Issue 2 (Whether the respective Defendants' products cause the functions andeffects of the respective inventions)(1) As per the finding of the aforesaid item 1, the function and effect of therespective inventions is to cause carbon dioxide to be contained in a composition as
bubbles, retain the carbon dioxide in the form of bubbles, and release it in a sustainedmanner so as to supply carbon dioxide to a subcutaneous tissue in a sustained manner.
Furthermore, as per the findings of the aforesaid item 1(3), it is recognized thata composition obtained by the respective Defendants' products can retain carbon
dioxide in the form of bubbles and release it in a sustained manner.
(2) Note that Defendants allege that the technical idea of the respective
Defendants' products is fundamentally different from that of the respective inventions.
It is indefinite, however, as to whether or not the respective inventions mighttransdermally absorb carbon dioxide in the form of bubbles in a composition as they
are, and the function and effect of the respective inventions are as per the above findings.
A viscous composition falls within a technical scope of the inventions as long as it
retains and continuously releases carbon dioxide in the form of bubbles.

Furthermore,as in the above findings, a composition obtained by the respective Defendants' products
can retain carbon dioxide in the form of bubbles and release it in a sustained manner.
Further, Defendants point out that granules of the respective Defendants'
products contain lactose.

Even if lactose should have an effect of suppressing thegeneration of carbon dioxide in the form of bubbles, a composition obtained from therespective Defendants' products would retain carbon dioxide in the form of bubbles , asper the aforesaid findings.

Thus the above findings are not affected by the above

Defendants' allegation.
(3) For the above reason, it is recognized that the respective Defendants' productscause the above function and effect of the respective inventions.

Therefore, it is notnegated that the respective Defendants' products fall within the technical scope of theInventions 1-1, 1-4, and 1-5 and the Inventions 2-1, 2-4, and 2-5, and an indirect
infringement is established.
4 Issue 3-1 (Incompletion of the respective inventions)(1) Production method of compositions of the respective inventionsFirst, a consideration is given to a specific method of producing a compositionof the respective inventions, the respective inventions are inventions regard ing a71method for preparing a kit for obtaining a carbon dioxide-containing viscouscomposition to be used as a cosmetic and a pharmaceutical composition and a method
for preparing the viscous composition.

Further, the composition is obtained by mixing

an aqueous viscous composition (including a carbonate or an acid) with (composite)
granules, fine grains, or powders including a carbonate or an acid.
Further, the respective descriptions (Disclosure of the Invention of description 1,[0020] to [0030] and [0034] to [0037], [0058], [0059]) describe specific matters(compositions and contents, etc.) of water, a thickener, a carbonate, and an acid used in
the respective inventions.

Further, a method of producing granules including acarbonate and an acid, and a method of producing an aqueous viscous composition are
described in the examples.

Further, it is seen as a design matter to make (composite)

granules (composite) fine grains or powders.
Furthermore, the disclosure of the invention and the best mode for carrying out
the invention of description 1 and [0032], [0033], [0100], [0101] and [0103] describe amethod for producing a carbon dioxide-containing viscous composition consisting of a
combination of Claim 1 of the respective inventions.
It is recognized from the above description that a composition of the respective
inventions may be produced.
(2) Use of composition produced by the method of the above item (1)The disclosure of the invention and the best mode for carrying out the inventionof description 1 and [0049] to [0056] describe the use of the compositions of therespective inventions.

Further, a test example cited in the below-mentioned (3) also

describes cosmetics including a cosmetic for the improvement of partial adiposenessand a method for the use of a composition as a pharmaceutical composition (fortreatment)
It is recognized from the above description that a composition of the respective
inventions may be used for cosmetics including a cosmetic for the improvement ofpartial adiposeness and a pharmaceutical composition (for treatment).

Therefore, it isrecognized from the above description that a kit for obtaining a composition of therespective inventions may also be produced and used.
(3) Function and effect of composition produced by the method of the above item
(1)
A The respective descriptions disclose that a reaction of a carbonate and an acidresults in generation of carbon dioxide, and when they are reacted in a composition
including water and sodium alginate, carbon dioxide is contained and retained in thecomposition (Disclosure of the Invention of description 1, [0032]).
72

Further, as per the aforesaid findings, the respective descriptions describe anevaluation result of bubbling ability and the sustainability of bubbling of a composition
produced by the above method (1).

This evaluation result describes that regarding

bubbling ability one case had an increase rate of a volume of a composition of 30 to
50% (two cases for Invention 2) and the other cases had 50% to 70% or 70% or more,
and regarding the sustainability of bubbling, a decrease rate was 20% or less or 20% to40%.
In view of the aforementioned description, a composition of the respective
inventions produced by the above method (1) has a bubbling ability and a consi derable
level of sustainability of bubbling.

Further, [0017] discloses that compositions of therespective inventions are applied to a targeted site to supply carbon dioxide in the formof bubbles in a composition to subcutaneous tissues in a sustained ma nner.

Further,

as per the aforesaid item 1(1)B(D)c, it is reasonably understood from these matters ofcommon general knowledge that an effect and efficacy on a skin due to a blood
circulation promoting effect of carbon dioxide known in publicly known art would becaused.

Test examples specifically confirmed the effect.

In addition, test examples

include ones in which the examples of the respective inventions were not used.

This

holds true for the test examples 8, 9, and 13 with regard to partial slimmin g test andface slimming test.

Also in these test examples, an aqueous viscous composition ispreliminarily prepared, and a carbonate and an acid are reacted therein to generate
carbon dioxide.

The mixed components and the content are the same as those o f acomposition of the respective inventions.

Therefore, these test examples are also

construed as being permitted to be referred as one confirming a function and effect of
the respective inventions.
In view of the foregoing, it is recognized that the respective inventions have been
completed.
B Defendants' allegation(A) Defendants allege that the test examples of the respective descriptions areunreliable, or it is not believed that their results are correctly described in the respective
descriptions.
As aforementioned, however, it is not recognized that excellent results as
described in the test examples are essential for the effect of the respective inventions.
Further, even if setting this point aside, the Defendants' allegation of the test exampl es
is abstract in many cases.

For a composition used in the test examples of therespective descriptions, the examples describe specific mixed components and contents
as well as their production method.

Further, the bubbling ability and sustainability of73

bubbling are evaluated by objective numerical values.
Further, test examples also describe specific numerical values, and thus it cannot
be recognized that the test examples include definitely unreasonable contents.
Furthermore, Defendants allege that the test examples containing lactic acid andthe test examples in which an aqueous viscous composition is acidic may not produce
a desired carbonate gel pack, and thus these test examples are faked; however, there isno evidence to find its specific evidence.

Thus the above determination is not affectedby the Defendants' allegation.
Therefore, the above Defendants' allegation is not acceptable.
(B) Defendants allege that the original data of the test examples are not submitted.
In view of the technical significance of the respective inventions, it is reasonably
understood that there is a case of obtaining a result as described in the test examples.
In view of the general method of description, it cannot be said that the description of
the test examples has no credibility.

Further, the respective descriptions describe anumber of examples and test examples, whose content is consistent.

The descriptionof the examples and test examples of the respective descriptions are consistent withexperimental results (Exhibits Ko 25, 26, 42, Exhibits Otsu A1, 8) for the respective
Defendants' products that fall within a technical scope of the respective inventions as
is found in the aforesaid item 1(3).
Therefore, in this case, the respective test examples have credibility without
submitting original data.
(C) Furthermore, Defendants allege that a treatment method utilizing the efficacy
of carbon dioxide on various skin diseases has not yet been widely practiced even now.
It cannot be said that such an extent of supportive evidence is required for the test
examples, nor can it be said that the above allegation instantly undermines thecredibility of the test examples.
In addition, Defendants submitted a report of an experimental result of Exhibit
Otsu E all 21 and submitted a written opinion of Exhibit Otsu A48 by a holder of a
doctorate, alleging that an additional test of the test example 13 (partial slimming testof arm) of the respective descriptions was conducted by use of Plaintiff's products.
Indeed, an effect of partial slimming of arms cannot be observed in Exhibit Otsu
E all 21, but it is unavoidable to cause an individual difference to some extent in viewof the function and effect of the respective inventions of cosmetics for improvement ofpartial adiposeness.

Therefore, it cannot be deduced from this fact that the test

examples of the respective descriptions have no credibility, nor can it be recognizedthat excellent results as described in the test examples are essential for the effect of the74respective inventions.

Thus it cannot be inferred from the result of Exhibit Otsu E all

21 that the respective inventions are incomplete.

Further, the written opinion of

Exhibit Otsu A48 discloses that the respective inventions significantly lack a scientif ic
ground for the effectiveness and safety in applying the substance to human for all thediseases and symptoms of the respective descriptions, and it cannot be totally
recognized that a problem is solved.

However, the respective inventions may retain

more carbon dioxide in a composition and supply it to subcutaneous tissue, etc. in asustained manner by preliminary preparation.

In view of this, it is reasonably

understood from these matters of common general knowledge that an effect and efficacy
on the skin due to a blood circulation promoting effect of carbon dioxide known inpublicly known art would be promoted.

Therefore, even if there is no ground at astrong evidence level such as systematic review and one or more randomized
comparative tests of Exhibit Otsu A48 as like a case of a novel compound in which aneffect is unpredictable, it cannot be said that the invention is incomplete.

This also

holds true for Exhibit Otsu A47.
Further, according to an experimental result of Exhibit Otsu E all 10, there areseveral examples in which the skin is colored reddish in a case of using "one with a low
viscosity".

However, a method for producing "one with a low viscosity" is indefinitefrom documentary evidence.

Even if setting this aside, one with a low viscosity canbe seen as having a certain degree of viscosity.

In view of this, it cannot be supportedby the experimental result of Exhibit Otsu E all 10 that the respective inventions areincomplete.
Furthermore, Defendants submit Exhibit Otsu A2, and allege that a carbonate
gas pack (sample A) generating a large amount of carbon dioxide bubbles during the
mixture have a lower transdermal permeation of carbon dioxide as compared to acarbonate gas pack (sample B) slowly releasing less bubbles.

What matters in relation

to the effect of the respective inventions is the presence or absence of a difference
between the case of on-demand preparation and preliminary preparation in a carbonate
gas pack with a same ability to release carbon dioxide.

This is confi rmed by Exhibit

Ko 32, and thus Exhibit Otsu A2 does not negate the function and effect of therespective inventions.
(4) In view of the foregoing, it is recognized that the respective inventions havebeen completed.
5 Issues 3-2 (nonconformance to support requirement) and Issue 3-3(nonconformance to enablement requirement)(1) According to the finding and ruling of the aforesaid item 4, the respective75

descriptions specifically describe the mixed components and contents of a compositionof the respective inventions.

The descriptions also discloses a specific method for

producing an aqueous viscous composition (including a carbonate or an acid),(composite) granules, fine grains, or powders including a carbonate or an acid andmixing them to produce a composition of the respective inventions as well as its
function and effect.

Thus the descriptions satisfy the support requirement andenablement requirement.
(2) Defendants' allegation
A Defendants allege that there is no test example showing that all the problemsof the respective inventions have been solved.
However, the problem as Defendants allege is a problem described inbackground art and [0004] and [0005] of description 1.

As in the aforesaid item

1(1)B(D)c, these descriptions of the respective inventions solve a problem to achieve
the effects of retaining more carbon dioxide in a carbon dioxide-containing viscouscomposition and supplying it to subcutaneous tissues in a sustained manner.

Further,the respective inventions may retain more carbon dioxide in a composition and supply
it to subcutaneous tissue, etc. in a sustained manner by preliminary preparation.

Inview of this, it is reasonably understood from these matters of common generalknowledge that an effect and efficacy on a skin due to a blood circulation promoting
effect of carbon dioxide known in publicly known art would be promoted.

Therefore,

it is recognized that a person skilled in the art could recognize that the respective
inventions might solve a problem and the respective inventions were feasible without
test examples for all the efficacy described in the respective descriptions.
Further, it can be said as a matter of common general knowledge that the reactionof a carbonate and an acid results in the generation of carbon dioxide (Disclosure of theInvention of the description 1, [0032], Kanebo publication, etc.).

Thus it is permitted

to confirm a function and effect of the respective inventions in reference to the test
examples in which a composition comparable to or inferior to a composition of therespective inventions in bubbling ability and sustainability of bubbles is used, as per
rules in the aforesaid item 4(3)A.

Consequently, it cannot be recognized as notconforming the support requirement.
B Subsequently, Defendants allege that it is necessary to describe to the extent
of the description of a result according to a pharmacological test to satisfy the support
requirement.
Indeed, the respective inventions are inventions directed to a kit for obtaining acarbon dioxide-containing viscous composition to be used as a pharmaceutical76

composition (for the treatment).

As per the aforesaid item 1(1)B(D)c, however, therespective inventions may retain more carbon dioxide in a composition and supply it tosubcutaneous tissue, etc. in a sustained manner by preliminary preparation.

In viewof this, it is reasonably understood from these matters of common general knowledge
that an effect and efficacy on a skin due to a blood circulation promoting effect ofcarbon dioxide known in publicly known art would be promoted.

Therefore, it cannot

be said that the effects of the respective inventions are hard to be expected or
unpredictable like a novel compound (as in the aforesaid item 1(1)B(D)c, it is notrecognized that excellent results as described in the test examples are essential for theeffect of the respective inventions).
Therefore, the above Defendants' allegation is not acceptable.
C Defendants allege that the respective descriptions are silent about action
mechanism, and there is a possibility that any factor other than transdermal absorptionof carbon dioxide in the form of bubbles might function.
However, Defendants' allegation only points out the possibility.

Besides, therespective inventions may retain more carbon dioxide in a composition and supply it tosubcutaneous tissue, etc. in a sustained manner by preliminary preparation.

In viewof this, it is reasonably understood from these matters of common general knowledge
that an effect and efficacy on a skin due to a blood circulation promoting effect ofcarbon dioxide known in publicly known art would be promoted.

Further, Defendants

cite the Plaintiff's allegation in the prosecution history of the respective patents andallege that an extra function other than a blood circulation promoting effect is involved.
The Plaintiff's allegation discusses excellent results of the test examples of therespective descriptions, and does not hold true for all the respective inventions.
Further, as in the above findings, the respective descriptions describe a specific method
for producing and using compositions of the respective inventions, as well as a functionand effect caused by use of the compositions.

It can be seen from this description thata person skilled in the art could solve a problem to be solved by the respective
inventions, and the respective inventions were feasible.
D Furthermore, Defendants allege that since there is no limitation to thecompositions of a carbonate and an acid, it cannot be said that a person skilled in theart could recognize that the respective inventions could solve the problem.
However, the respective inventions cause carbon dioxide generated by thereaction of a carbonate and an acid to be retained in the form of bubbles in a composition.
As in the above findings, it is a matter of common general knowledge that carbon
dioxide generates by the reaction of a carbonate and an acid.
77

Thus it is a design matter

that a person skilled in the art should select as to what kinds of carbonate and ac id are
to be selected.

Further, the respective descriptions also describe the test examples inwhich a composition comparable to or inferior to a composition of the respective
inventions in bubbling ability and sustainability of bubbles is used in additio n to theexamples of the respective inventions.

As in the above findings, in view of the factthat it was a matter of common general knowledge that carbonate gas improves blood
circulation, it is recognized that a person skilled in the art could recognize from thedescription of the respective descriptions that the respective inventions might solve a
problem.
(3) For the above reason, the recitation of the scope of the claims according to
the respective inventions conforms to the support requirement (Article 36, paragraph(6), item (i) of the Patent Act), and the description of the Detailed Description of theInvention of the respective description conforms to the enablement requirement (Article
36, paragraph (4), item (i) of the Patent Act).
6 Issue 3-4 (lack of inventive step over a main cited reference of Kanebo's
publication, Example 9 (Kanebo example invention))(1) Kanebo example invention
A According to Kanebo publication (Exhibit Otsu A102, Exhibit Otsu E all 6),
the scope of claims and the summary of the invention described in Example 9 are set
forth as below.
(A) The invention described in the scope of the claims of Kanebo publication isa bubbling cosmetic with excellent gas retaining ability activating skin by a blood
circulation promoting effect of carbonate gas, storage stability, feeling, and skin safety(Kanebo publication, (technical field)).
What is proposed before is a cosmetic in which carbonate gas is mixed for the
purpose of blood circulation promotion, e.g. a cosmetics in which car bonate gas ismixed with an aqueous cosmetics and sealed in a pressurized container.

These

cosmetics have a defect of high cost due to pressure-tightness of a container (Kanebo
publication (Conventional technique)).
Accordingly, a two-pack type was first made to improve storage stability.
Further, supposing that a water solution obtained by dissolving an acidic
substance into water is a first agent, and a solid in which a water soluble polymer and/or
clay mineral and a carbonate are covered with a solid polyethyleneglycol at room
temperature is a second agent, carbonate gas bubbles gradually generate in an on demand mixture and stable bubbles generate by a viscosity of a water-soluble polymer
and/or clay minerals to improve the retaining ability of carbonate gas (gas retaining78

ability) (Scope of the claims, (Disclosure of the Invention) and (Object of invention) of
Kanebo publication).
Furthermore, the above constitution provides excellent feeling (Kanebo
publication (The object of invention)).
(B) Kanebo publication describes Examples 1 to 11.

A method for preparing afirst agent is to add citric acid to water and stir and uniformly mix them.

Example 9

was conducted with 5.0 % by weight of citric acid and 95.0 % by weight of water.
Further, a preparation method of a second agent is to dissolve polyethyleneglycol(molecular weight: 4000) at about 80°C, and add sodium hydrogen carbonate andsodium alginate during heating, and uniformly mix them and cool down to room
temperature to make a powder covered with polyethyleneglycol.

In Example 9,polyethyleneglycol, sodium hydrogen carbonate, and sodium alginate were set to10.0 % by weight, 40.0 % by weight, and 50.0 % by weight, respectively.
weight ratio of a first agent and a second agent was set to 10:1.

Further, a

Further, citric acidused in this example is an acid, sodium hydrogen carbonate is a carbonate, and sodium
alginate is a water-soluble polymer (Exhibit Ko 2, Exhibit Otsu A102, Exhibit Otsu E
all 6).
According to test results of the respective examples, bubbling ability, gasretaining ability, and storage stability were excellent or good for all, whereas they weregood, good, and excellent respectively for Example 9.
(C) Taking the above matters into account, it can be recognized that Example 9of the Kanebo publication describes the following invention (Kanebo example
invention):a A two-pack bubbling cosmetic for activating the skin through a blood
circulation promoting effect of carbonate gas,b consisting of a combination of an aqueous solution containing an acid with asolid in which a carbonate and a water-soluble polymer of sodium alginate are covered
with a solid polyethyleneglycol at room temperature,c wherein a composition is obtained by mixing an aqueous solution containing
an acid with a solid in which a carbonate and a water-soluble polymer of sodium
alginate are covered with a solid polyethyleneglycol at room temperature.
d A two-pack bubbling cosmetic.
B Comparison between Invention 1-1 and the Kanebo example invention
In view of the above findings, "carbonate gas" of the Kanebo example invention
corresponds to "carbon dioxide" of Invention 1-1.

Further, comparing Invention 1-1

and the Kanebo example invention, it is recognized that there are at least the following
79differences.
[i] Different feature 1: Invention 1-1 consists of a combination of an aqueous
viscous composition comprising a carbonate and sodium alginate with granules (finegrains, powders) comprising an acid, and a combination of composite granules (finegrains, powders) comprising a carbonate and an acid with an aqueous viscouscomposition comprising sodium alginate (constituent feature 1-1B), both of which are
mixed to obtain a composition, whereas the Kanebo example invention consists of a
combination of an aqueous solution containing an acid with a solid in which a carbonate
and a water-soluble polymer of sodium alginate are covered with a solid
polyethyleneglycol at a room temperature, both of which are mixed to obtain acomposition.
[ii] Different feature 2: In Invention 1-1, the use is a cosmetic for the
improvement of partial adiposeness, or a pharmaceutical composition for the treatment
of athlete's foot, atopic dermatitis, or bedsore, whereas the Kanebo example invention
is a bubbling cosmetic.
(2) Whether a person skilled in the art could have been easily conceived ofdifferent feature 1
As in the above findings, Invention 1-1 and the Kanebo example invention are
directed to a two-pack type that obtains a composition by mixing a carbonate, an acid,sodium alginate, and water.

There are different combinations of these components.

Accordingly, there is a difference as to whether to obtain an aqueous viscouscomposition by a preliminary preparation or on-demand preparation.

A consideration

is given as to whether such difference is easily conceivable.
A First, Defendants allege that the constitution of holding carbon dioxide ismerely a design modification.
Indeed, it is recognized that the Kanebo example invention is a two pack -type
on-demand mixture-type cosmetic and tries to solve a problem common to Invention 11 to improve gas retaining ability of a composition (sustainability of bubbling).

This

problem is solved by covering a component of a second agent with a solid
polyethyleneglycol at room temperature.
from Invention 1-1.

A means for solving the problem is different

Therefore, this modification cannot be a design matter.

B Defendants also allege that since it is a commonly used art to preliminarily
dissolve a thickener such as sodium alginate into water, it is easy to overcome thedifferent feature by applying this.
As in the above findings, while a two-pack cosmetic consisting of a combinationof an aqueous solution containing an acid (a first agent) with a solid comprising80

carbonate and water-soluble polymer of sodium alginate (a second agent) (Comparative
Example 2, Kanebo comparative example invention) has a problem of significantly poorgas retaining ability, the Kanebo example invention is an invention that is characterizedin covering each component of a second agent with polyethyleneglycol to gradually
generate carbonate gas bubbles in an on-demand mixture and forming stable bubbles
due to the viscosity of a water-soluble polymer to improve gas retaining ability (Kanebo
publication, page 1, right column, lines 5 to 13).

Therefore, it cannot be said that there

is a motivation to change a solid of a water-soluble polymer of sodium alginate covered
with a polyethyleneglycol into an aqueous viscous composition by taking off a cover ofpolyethyleneglycol for the purpose of solving such a problem.
Therefore, it cannot be recognized that different feature 1 was easily conceivableby the application of a commonly used art as Defendants allege.
C Based on the above, without the determination of different feature 2, it cannot
be said that Invention 1-1 was easily conceivable on the basis of the Kanebo example
invention.

Thus, in addition to Inventions 1-4, 1-5, 1-7 to 1-9, 1-12, and 1-13 thatfurther technically specify Invention 1-1 or change the category of Invention 1-1 into amethod invention, the inventive step is not negated.
Further, Invention 2-1 adds one combination to the other combination recited in
Claim 1 of Invention 1-1.

A difference from the Kanebo example invention issubstantially not different from a difference between Invention 1-1 and the Kanebo
example invention.

Therefore, the above finding and ruling for Invention 1 -1 holds

true for Invention 2-1.

Thus the inventive step of Invention 2-1 is not negated.

Further, Inventions 2-4, 2-5, and 2-7 merely technically specify Invention 2-1, and thus
similarly the inventive step is not negated.
(3) Therefore, the allegation of lack of inventive step over a main cited referenceof the Kanebo example invention is groundless.
7 Issue 3-5 (lack of inventive step over a main cited reference of Kanebo's
publication, Comparative Example 2 (Kanebo comparative example invention))(1) Kanebo comparative example invention
A According to the Kanebo publication, the Kanebo comparative example
invention is set forth as below.
(A) The Kanebo publication describes Comparative Example 2 (Kanebo
comparative example invention) in which a second agent is a solid comprising acarbonate and a water-soluble polymer and/or clay minerals, and the solid is not covered
with polyethyleneglycol, nor mixed with polyethyleneglycol, as a comparative example
for the invention recited in the scope of claims (Aforesaid item 6(1)A(A)).
81But it is described as a comparative example without the use ofpolyethyleneglycol, and thus the bubbling ability is fair, gas retaining ability is poor,
storage stability is fair; and thus gas retaining ability is significantly poor and storage
stability is poor.
publication).

Further, a skin stimulation is considerably caused (Table 2 of Kanebo

Thus it has poor feeling.

(B) Besides the above, this comparative example is described in the Kanebo
publication as a comparative example for the invention recited in the scope of claimsof the Kanebo publication.

In view of this, it is recognized that comparative example

2 describes the following invention (Kanebo comparative example invention).
a A two-pack bubbling cosmetic for activating the skin through a blood
circulation promoting effect of carbonate gas,b consisting of a combination of an aqueous solution containing an acid with asolid comprising carbonate and water-soluble polymer of sodium alginate,c wherein a composition is obtained by mixing an aqueous solution comprisingan acid with a solid comprising a carbonate and a water-soluble polymer of sodium
alginate.
d A two-pack bubbling cosmetic.
B Comparison between Invention 1-1 and the Kanebo comparative example
invention
Comparing Invention 1-1 and the Kanebo comparative example invention, it isrecognized that there are at least the following differences.
[i] Different feature 1: Invention 1-1 consists of a combination of an aqueous
viscous composition comprising a carbonate and sodium alginate with granules (finegrains, powders) comprising an acid, and a combination of composite granules (finegrains, powders) comprising a carbonate and an acid with an aqueous viscouscomposition comprising sodium alginate (constituent feature 1-1B), both of which are
mixed to obtain a composition, whereas the Kanebo comparative example invention
consists of a combination of an aqueous solution containing an acid with a solid
comprising carbonate and water-soluble polymer of sodium alginate, both of which are
mixed to obtain a composition.
[ii] Different feature 2: In Invention 1-1, the use is a cosmetic for the
improvement of partial adiposeness, or a pharmaceutical composition for the treatment
of athlete's foot, atopic dermatitis, or bedsore, whereas the Kanebo comparative
example invention is a bubbling cosmetic.
(2) Whether a person skilled in the art could have been easily conceived of82different feature 1
Invention 1-1 and the Kanebo comparative example invention are directed to a
two-pack type that obtains a composition by mixing a carbonate, an acid, sodium
alginate, and water.

There are different combinations of these components.

Accordingly, there is a difference as to whether to obtain an aqueous viscouscomposition by a preliminary preparation or on-demand preparation.

In view of this,a consideration is given to the
Defendants' allegation.
A Application of commonly used art(A) Defendants allege that it was commonly used art as of the filing date of therespective patents to use a viscous composition for an agent type of cosmetics (orpharmaceutical composition).
However, Exhibits Otsu E all 7, 8 on which Defendants rely as a ground forcommonly used art are firstly not directed to a two pack-type cosmetic according to thedescription, but only list a gel, a jelly, a powder, a granule, and a liquid as examples of
agent types of the cosmetic itself.

It cannot be recognized as commonly used art thatmakes one agent type of the two pack-type cosmetics an aqueous viscous composition.
(B) Subsequently, Defendants list Exhibit Otsu E all 3 as commonly used art tomake one agent type of two-pack type cosmetics a viscous composition.

Further,

Exhibit Otsu E all 3 provides a pack comprising carbonate gas or a carbonate gas
generating substance (page 2, left upper column, lines 7 to 9).

In the embodiment, acarbonate and an acid are respectively supported by two carriers different from eachother.

These carriers may retain moisture and cause carbonate gas to be generated byattaching to a part to be subjected to pack when in use (left bottom column, lines 1 to
8).

This pack may compound various substances (including a gelling agent and a

thickener.) to be used for a common pack as necessary (page 3, left bottom column,
lines 5 to 11).

Production example 4 describes an example in which the agent A of awater-soluble polymer, sodium hydrogen carbonate, and water and the agent B of awater-soluble polymer, tartaric acid, and water are mixed together when in use (page 4,
right upper column, line 12 to left bottom column, line 14).
However, as aforementioned, the Kanebo comparative example invention is acomparative example of an invention recited in the scope of claims of the Kanebo
publication.

The comparative example is described as having a problem ofsignificantly poor gas retaining ability in the Kanebo publication with a purpose of
improving gas retaining ability.

Consequently, in the Kanebo comparative example

invention, it can be said that there is a motivation to improve gas retaining ability.
83Regardless of the fact that there is no suggestion to improve gas retaining ability bygelling a solid of a water-soluble polymer of sodium alginate in advance, it cannot be
said that there is a motivation to change into gelling in advance only for a reason that
it is used for a common pack.
Further, Exhibit Otsu E all 3 only disclose a constitution of supporting acarbonate and an acid on two carriers different from each other, and a constitution of
making two agents viscous compositions.

Therefore, it cannot be recognized as aground for commonly used art to make one agent type of a two pack-type on-demand
mixture-type an aqueous viscous composition (Exhibit Ko 30).
Therefore, it cannot be recognized that different feature 1 was easily conceivableby the application of a commonly used art as Defendants allege.
B Design modification or design matter
Defendants allege that the selection of agent type in the respective inventions
does not cause a particular difference in function and effect, and it is merely a designmodification or a design matter to change agent types of the first agent and the second
agent as necessary in the Kanebo comparative example invention.
However, the Kanebo comparative example invention has a problem ofsignificantly poor gas retaining ability, whereas the respective inventions preliminarily
prepare an aqueous viscous composition for one agent type, and cause carbon dioxide
to be generated in the aqueous viscous composition to improve the sustainability ofcarbon dioxide bubbles.
C

Thus it cannot be said that this modification is a design matter.

Based on the above, without the determination of different feature 2, it cannot

be said that the Invention 1-1 was easily conceivable on the basis of the Kanebo
comparative example invention.

Thus in addition to Inventions 1-4, 1-5, 1-7 to 1-9,

1-12, and 1-13 that further technically specify Invention 1-1 or change the category of
Invention 1-1 into a method invention, the inventive step is not negated.
Further, Invention 2-1 adds one combination to the other combination recited in
Claim 1 of Invention 1-1.

A difference from the Kanebo comparative example

invention is substantially not different from a difference between Invention 1-1 and the
Kanebo comparative example invention.

Therefore, the above finding and ruling forInvention 1-1 holds true for Invention 2-1.
is not negated.

Thus the inventive step of Invention 2-1

Further, Inventions 2-4, 2-5, and 2-7 only technically specify Invention

2-1, and thus similarly the inventive step is not negated.
(3) Therefore, the allegation of lack of inventive step over a main cited referenceof the Kanebo comparative example invention is also groundless.

It cannot be said

that the respective patents should be invalidated by a patent invalidation trial.
84

8 Issue 4 (presence or absence of negligence of Defendants Cosmepro et al.)Defendants Cosmepro et al. allege that they had a recognition of purchasing andselling the products covered by the patent right owned by Defendant Neochemir, andthus they have no negligence.
The patent rights owned by Defendant NeoChemir are the patent rights directed
to a composition for the preparation of carbon dioxide topical products (Exhibits Otsu
A18 to 20), and have a technical field in common with the respective patents; however,they are patent rights different from each other in their constituent features.

Thus itcannot be said that only the existence of circumstances alleged by Defendants
Cosmepro et al. negates the presence of negligence.

Further, it cannot be recognizedthat there are any other circumstances in which the negligence of Defendants Cosmepro
et al. should be negated.
Therefore, the fact that Defendants Cosmepro et al. had implemented withnegligence is not negated.

Thus the Defendants have liability for damages against

Plaintiff.
9 Issue 5 (Establishment of joint tort)
To establish a joint tort, it should be required that there is a specific cooperativity
that allows each infringer to compensate damage caused by an act of another infringer,e.g. in a case of the presence of a subjective associated cooperativity such as collu siveties in each infringer, or in a case of the presence of objectively closely-associatedcooperativity.

Further, for example, a transaction form of a manufacturer selling a

product to a retail seller and the retail seller selling to consumers is extremely common.
Even if a manufacturer and a retail seller both should recognize and permit suchtransaction form, this fact is not sufficient to find sufficient associated cooperativity toestablish a joint tort responsibility.
Hereinafter, from such viewpoint, a consideration is given as to whether to finda joint tort for each of the respective Defendants' products.
(1) Defendant's product 1
According to Plaintiff's allegation, Defendant NeoChemir is involved withcommercial distribution.

As in the aforesaid findings, the company was a developerof Defendant's product 1 (Exhibit Ko 7), and had produced and sold by itself similarkinds of products (Defendant's products 3, 4, and 8) that fall within a technical scopeof the respective inventions.

On the other hand, Defendant Cosmepro had also soldsimilar kinds of products (Defendant's products 14, 15, and 18) that fall within atechnical scope of the respective inventions, purchased granules from Defendant
NeoChemir for Defendant's product 14 and 18, and had sold each of the above products85

to a person other than Defendant NeoChemir.

In view of such circumstances, it cannot

be said that Defendant NeoChemir was in a position like a general agency as Plaintiff
allege, nor can it be said that the Defendants' acts had objectively closely-associatedcooperativity.
Therefore, it cannot be said that a joint tort is established between Defendants
with regard to Defendant's product 1.
(2) Defendant's products 2, 13, and 16
Defendant NeoChemir had been selling granules to Esco and Defendant Cosme
Bose; however, as in the aforesaid findings, Defendant NeoChemir had been selling
granules to a person other than Esco or Defendant Cosme Bose.

In view of suchcircumstances, it cannot be said that Esco et al. were in a position like a general agency
as Plaintiff allege, nor can it be said that the Defendants' acts had objectively closelyassociated cooperativity.
Further, it matters as to whether a joint tort may be established between
Defendant Cosme Bose and Defendant Wingsense with regard to Defendant's product13.

Defendant Cosme Bose is an OEM manufacturer (the overall gist of oralproceedings).

It cannot be said that Defendant Wingsense was in a position like ageneral agency, nor can it be said that the Defendants' acts have objectively closelyassociated cooperativity.
Therefore, it cannot be said that a joint tort is established between the above
infringers with regard to the above respective products.
(3) Defendant's products 3 and 4
According to Plaintiff's allegation, Defendant NeoChemir had sold the
Defendant's product 3 to TRUST WINGS.

Defendant NeoChemir had also soldsimilar kinds of products (Defendant's products 1, 8, and 15) that fall within a technicalscope of the respective inventions to the other Defendants.

On the other hand, TRUSTWINGS had produced and sold a carbonate gas pack by itself in OEM in addition to thepurchase and sales of the final products (Exhibit Ko 21).

TRUST WINGS was also

involved with the sales of a carbonate gas pack of "INSQUARE mixing pack" as "aseller".

The "manufacturer and distributor" was described as Esco (Exhibit Ko 26).

For the Defendant's product 3, a manufacturer and distributor were described as Acnes
Labo, and the general sales agent was described as NatureLab (Exhibit Ko 7).

In viewof such circumstances, it cannot be said that TRUST WINGS was in a position like ageneral agency as Plaintiff alleges, nor can it be said that the Defendants' acts had
objectively closely-associated cooperativity.
A commercial distribution of Defendant's product 4 of the attachment
86

"Commercial distribution of the respective Defendants' products" is silent about
TRUST WINGS; however, even if it is in a commercial distribution similar to
Defendant's product 3, the above ruling may apply similarly.
Therefore, it cannot be said that a joint tort is established between the above
infringers with regard to the above respective products.
(4) Defendant's products 5, 6, 7, 9, 11, and 17
According to the Plaintiff's allegation, a commercial distribution as Plaintiff
alleges includes "Company not a party to the case (Company name unknown)" for eachof these products.

Further, a company not a party to the case with an unknown

company name intervenes between Defendant NeoChemir and Defendants, CEFINE orSUHADA Cosmetics.

Consequently, even in view of the Plaintiff's allegation, there

is an indefinite point in a commercial distribution of the respective products.
relationship between the above infringers is also indefinite.

The

Thus it cannot be said thatthe acts of Defendant NeoChemir and the infringers had an objectively closelyassociated cooperativity.
Further, it matters as to whether a joint tort may be established between
Defendant Chiara Macchiato and Defendant Airica with regard to Defendant's product5.

Defendant Chiara Macchiato promoted its own products (below-mentioned

10(3)B(B)).

In view of the sales figure and profit, there is no difference from theabove mentioned common transaction form.

It cannot be said that Defendant Airica

was in a position like a general agency for Defendant Chiara Macchiato, nor can it besaid that these Defendants' acts had objectively closely-associated cooperativity.
Therefore, it cannot be said that a joint tort is established between the above
infringers with regard to the above respective products.
(5) Defendant's product 8
Defendant AMPLY purchased Defendant's product 8 from Defendant
NeoChemir, and sold this to Defendant Rhythm.

Defendant Rhythm had consulted

Defendant AMPLY about the products to be sold from the establishment of the company.
In the process, Defendant Rhythm has ended up purchasing Defendant's product 8.
Thus Defendant Rhythm had recognized Defendant AMPLY as a special businessconnection (Exhibit Otsu B12-1).

In contrast, Defendant AMPLY was an OEM

manufacturer, and decided to support the start of business of Defendant Rhythm andstarted a transaction with Defendant Rhythm with the intention of bringing up
Defendant Rhythm as a sales channel.

Defendant AMPLY had allegedly positioned

Defendant Rhythm as a first business for "sales channel bringing up program" andlaunched a carbonate gas pack in cooperation with Defendant Rhythm (Exhibit Otsu
87

B13-1, the overall gist of oral proceedings).

Further, in this lawsuit, Defendant

AMPLY alleges that it had exchanged information on customers and the orders fromthe customers with Defendant Rhythm.

Accordingly, it is recognized that there wassuch a relationship between Defendant AMPLY and Defendant Rhythm (For the above
fact, see the overall gist of oral proceedings).

Further, the sales figure of Defendant

Rhythm goes beyond three hundred-million yen.

The sales figure of Defendant

AMPLY itself also goes beyond one hundred-million yen.

In comparison to the sales

figures of the other products of the other Defendants, the sales figures are extremelyhigh.

It is assumed that such sales figure was achieved because there was a

relationship between Defendant AMPLY and Defendant Rhythm.

It can be said thatthe two companies had utilized and complemented each other to produce and sell
Defendant's product 8.

Therefore, the acts of both companies had an objectively

closely-associated cooperativity.

Thus a joint tort should be established.

In contrast, when it comes to the relationship between Defendant AMPLY andDefendant Rhythm, while Defendant AMPLY was a business connection of Defendant
NeoChemir, Defendant NeoChemir had also sold similar kinds of products (Defendant's
products 1, 3, 4, and 15) that fall within a technical scope of the respective inventions,and had sold each of the above products to a person other than Defendant AMPLY.

In

view of such circumstances, it cannot be said that Defendant AMPLY was in a position
like a general agency for Defendant NeoChemir, nor can it be said that the Defendants'
acts had objectively closely-associated cooperativity.
As aforementioned, a joint tort is established only between Defendant AMPLY
and Defendant Rhythm with regard to Defendant's product 8.
(6) Defendant's products 14 and 18
Defendant NeoChemir had been selling granules to Defendant Cosmepro;
however, as in the aforesaid findings, Defendant NeoChemir had been selling granules
to a person other than Defendant Cosmepro.

Further, Defendant Cosmepro had

allegedly produced and sold similar kinds of products (Defendant's products 1 and 15)that fall within a technical scope of the respective inventions, and had sold the products
to Defendant NeoChemir.

In view of such circumstances, it cannot be said that

Defendant Cosmepro was in a position like a general agency as Plaintiff alleges, nor
can it be said that the Defendants' acts had objectively closely-associated cooperativity.
Therefore, it cannot be said that a joint tort is established between Defendants
with regard to the above respective products.
(7) Defendant's product 15
According to Plaintiff's allegation, Defendant Clear noir was a seller, and88

Defendant NeoChemir had intervened between a manufacturer and distributor of
Defendant Cosmepro and Defendant Clear noir.

Defendant NeoChemir had sold asimilar kind of products (Defendant's products 1, 3, 4, and 8) that fall within a technicalscope of the respective inventions, and had sold each of the above products to a person
other than Defendant Clear noir.

Further, Defendant Cosmepro had allegedly

purchased granules from Defendant NeoChemir for Defendant's products 14 and 18.
In view of such circumstances, it cannot be said that Defendant NeoChemir et al. werein a position like a general agency as Plaintiff allege, nor can it be said that the
Defendants' acts had objectively closely-associated cooperativity.
Therefore, it cannot be said that a joint tort is established between Defendants
with regard to Defendant's product 15.
(8) As aforementioned, a joint tort is established only between Defendant
AMPLY and Defendant Rhythm with regard to Defendant's product 8.
10 Issue 6-1 (Plaintiff's amount of damage - Article 102, paragraph (2) of the
Patent Act)
(1) Defendants' sales figure according to the respective Defendants' products
A In Defendants' sales figure for the respective Defendants' products(hereinafter including granules in relation to Defendant NeoChemir.), there is nodispute between parties with respect to an amount not highlighted in yellow in thecolumn "sales figure" of the attachment "List of claimed amount (Plaintiff's allegation)"and the column "sales figure" of the attachment "List of sales and expenses (Defendants'
allegation)".
Further, as in the finding and ruling of the aforesaid item 9, it cannot be said thata joint tort is established between Defendants and TRUST WINGS.

Thus it isunnecessary to consider the sales figure.
B Further, while there is a dispute in the sales figure of Defendant AMPLY
according to the Defendant's product 8 and the sales figure of Defendant Wingsense
according to the Defendant's product 13, the only issue lies in whether the sales figure
might include an amount of consumption tax.

In view of the fact that Plaintiff itself

does not refute the Defendant sales figure according to the other products if Defendant
alleges a sales figure on the basis of an amount excluding tax (see Attachment "List of
sales and expenses (Defendants' allegation)"), it is reasonable to find a sales figure on
the basis of an amount excluding tax for the above two products.
C Furthermore, regarding Defendant's products 9, 11, 12, 14, 17, and 18, a
calculation method of sales figure for granules produced and sold by Defendant
NeoChemir becomes a matter in issue.

In view of the fact that granul es produced and89

sold by Defendant NeoChemir were used as granules of the respective products, it canbe said that a method as Plaintiff alleges; i.e., a method of calculating pro rata inaccordance with the proportions of the sales figures of a person who had produced andsold the respective products, is reasonable.

Thus a calculation should be made by themethod.
Specifically, the sales figures of Defendant's product 9, 11, and 17 formanufacturers and sellers are as per described in the column "sales fi gure" of therespective products of the attachment "List of claimed amount (Plaintiff's allegation)".
Further, the sales figure of Defendant's product 12 for manufacturers and sellers(AVON PRODUCTS) is ●(omitted)● yen (the overall gist of oral proceedings).
Therefore, in the sales figure of these products as Defendant NeoChemir alleges (●(omitted) ● yen in total), ●(omitted)●% is allocated to Defendant's product 9,●(omitted)●% is allocated to Defendant's product 11, ●(omitted)●% is allocated to
Defendant's product 12, and ●(omitted)●% is allocated to Defendant's product 17.
The calculation result is as per described in the column "sales figure" of the column"Defendant NeoChemir" of each product of the attachment.
Further, the sales figures of Defendant's products 14 and 18 for manufacturers
and sellers (Defendant Cosmepro) are as per described in the column "sales figure" ofthe respective products of the attachment "List of claimed amount (Plaintiff's
allegation)".

Therefore, in the sales figures of these products as Defendant

NeoChemir alleges (● (omitted) ● yen in total), ●(omitted)●% is allocated to
Defendant's product 14, and ●(omitted)●% is allocated to Defendant's product 18.
The calculation result is as per described in the column "sales figu re" of the column"Defendant NeoChemir" of each product of the attachment.
D In conclusion, the sales figure of the respective Defendants' products is as per
described in the column "sales figure" of the attachment "List of amount as the court
finds" (a part changed from the attachment "List of claimed amount (Plaintiff's
allegation)" is highlighted in blue.).
(2) Defendants' purchases, raw material costs and shipping cost
A In Defendants' purchases, raw material costs, and shipping cost for therespective Defendants' products, there is no dispute between parties with respect to an
amount not highlighted in yellow in the column "expenses" of the attachment "List ofclaimed amount (Plaintiff's allegation)" and the column "purchases, raw material costs,
and shipping cost" of the attachment "List of sales and expenses (Defendants'
allegation)".

Further, as in the finding and ruling of the aforesaid item 9, it cannot be

said that a joint tort is established between Defendants and TRUST WINGS or CEFINE.
90

Thus it is unnecessary to consider the purchases, raw material costs and shipping costs
for them.
B Purchases for stock articles (in relation to Defendant's products 8, 9, and 15)(A) Defendants allege that purchases for stock articles should be deducted fromsales figure as expenses.
However, it is reasonable to understand that the "profit" of Article 102,
paragraph (2) of the Patent Act means an amount from which an additionally required
expense in direct relation to the production and sales of infringing products is deductedfrom a total sales amount of products infringing the patent right.
Further, stock articles are products that have not been sold in the end.
sales thereof are not allocated to a sales amount.

Thus theIt is obvious that a purchase of thestock articles cannot be said as an expense that was additionally required in direct
relation to the production and sales of infringing products.

This fact remains

unchanged by a reason for producing stock articles as to whether Defendants refrained
from selling by the settlement of provisional disposition case.
Further, Defendants allege that there were products used as a sample for free.
In this case, the samples are not allocated to a sales amount.

It is obvious that apurchase for the samples cannot be said to be an expense additionally required in direct
relation to the production and sales of infringing products, like the above stock articles.
Further, Defendants allege that given a profit be calculated as Plaintiff alleges, apurchase of stock articles should be deducted from the sales figure of Defendant
NeoChemir.

However, Defendant NeoChemir had sold out without stock articles.

Thus it must be said that there is no reason to make such a calculation.
(B) On the basis of the above findings, a purchase of a part in dispute is set forth
as below.
a Defendant Rhythm's purchases of Defendant's product 8
A purchase volume of Defendant's product 8 by Defendant Rhythm is recognizedas 31,446 units, a sales volume is recognized as at least 30751 units (the overall gist oforal proceedings).

Therefore, a purchase of Defendant's product 8 to be deducted fromthe sales figure amounts to 124,750,992 yen (127,570,476 yen * 30,751 units / 31,446
units).

Therefore, an amount of expenses including shipping cost amounts to

135,184,458 yen.
b Defendant SHIN's purchase of Defendant's product 9
A purchase volume of Defendant's product 9 by Defendant SHIN is 7550 units,
a sales volume is 7450 units (packs).

Therefore, a purchase of the Defendant's product9 to be deducted from the sales figure amounts to 5,393,800 yen (5,466,200 yen * 7,450
91

units (packs) / 7,550 units).
c Defendant Clear noir's purchase of Defendant's product 15
A purchase volume of the Defendant's product 15 by Defendant Clear noir is
5,016 units, a sales volume is 4,515 units.

Therefore, a purchase of the Defendant's

product 9 to be deducted from the sales figure amounts to 12,584,701 yen (13,981,143
yen * 4,515 units / 5,016 units).

Therefore, an amount of expenses including shipping

cost amounts to 13,072,526 yen.
C Expenses for granules that Defendant NeoChemir has produced and sold (inrelation to Defendant's products 9, 11, 12, 14, 17, and 18)
In view of the ruling on the sales figure of the aforesaid (1)C, it is reasonable tocalculate expenses in a similar method.

The calculation result is as per described in

the column "expenses" of the column "Defendant NeoChemir" of each product of theattachment "List of claimed amount (Plaintiff's allegation)".
(3) Defendants' other expenses (the column "Other expenses" of the attachment"List of sales and expenses (Defendants' allegation)")
A Defendant NeoChemir's expenses (in relation to Defendant's products 1 to 9
and 11 to 18)
Regarding Defendant NeoChemir, an employment cost for researchers of R&D
center is allegedly an expense to be deducted from the sales figure.
Indeed, an employment cost should be deducted in a case that constant expenses
such as an employment cost of employees of its own company are particularly increased
for the production and sales of the above respective products, but there is no evidence
sufficient to find details of a production step of the above respective products by
Defendant NeoChemir or specific circumstances of the engagement of R&D center
employees.

Consequently, it cannot be recognized as a case to be deducted.

Therefore, it is not deductible.
B Defendant Cosmepro et al.'s Expenses(A) Defendant Cosmepro et al.'s Expenses (in relation to Defendant's products 1,
14, 15, and 18)
a Employment cost for part-time employees
It should be deducted in a case that an expense as Defendants allege isparticularly increased for the production and sales of the above respective products.

A

specific content of all works in which a part-time worker as Defendants allege wasinvolved and specific circumstances of engagement of part-time workers in the
production and sales of the above respective products cannot be found in Exhibit Otsu
B2-7.

Consequently, it cannot be recognized as a case to be deducted.
92

b Outsourced experiment and research expenses
It cannot clearly be seen from Exhibit Otsu B2-9[i] as to what kind of products
Defendant Cosmepro provided.
should be deducted.

Therefore, this does not show that the expenses

In contrast, Exhibit Otsu B2-9[ii] and [iii] may be presumed to

be antiseptic and antifungal tests of Defendant's product 18 in view of the time ofdrafting.

The cost for this test (38,880 yen in total) was incurred as a cost necessary

for the production thereof.

Therefore, this cost would be not incurred unless

Defendant's product 18 is produced and sold, and was thus increased particularly forthe production and sales thereof.
c Promotion costs
In the respective documentary evidence of Exhibit Otsu B2-11 (1) to (3), onehalf or one-third of an amount is allocated as an "expense for carbonate gas pack".
Therefore, it can be seen that not only the above respective products were exhibited in
Cosmetics development exhibition.

Further, it cannot be seen from documentary

evidence as to what kind of products were exhibited in Kansai beauty industry fair 2015
(Exhibit Otsu B2-11 (4)).

Further, the object of the aforementioned exhibition is tointroduce products produced and sold by Defendant Cosmepro.

Given such a purpose,it cannot be instantly inferred that the production and sales of the above respective
products resulted in the increase in expenses for the exhibition.

Further, Exhibit Otsu

B2-11 includes an expense for product leaflet (Exhibit Otsu B2-11(4)); however, its
specific content is indefinite.

Thus it cannot be recognized as corresponding to a caseto be deducted.
d Cost for free distribution of sample and cost for distribution in exhibition
Defendant Cosmepro distributed purchased products as free samples.

Thismeans that products that should be originally allocated to the sales were distributed for
free.

Further, in this case, only the sales of the products actually sold is allocated to asales figure (it cannot be said that what is allocated is a sales figure that would beobtained in a case that a free distributed sample should be actually sold).

It is notreasonable to see a purchase of samples distributed for free as an expense for the sales
thereof.
e In conclusion, a deduction is affirmed to the extent of a latter part of the aboveb (38,880 yen in total) for Defendant's product 18.
be deducted.

The remaining expenses are not to

Therefore, an amount of expenses for Defendant's product 18 amoun ts

to 376,156 yen, including raw material cost and shipping cost in addition to the above
amount.
(B) Promotion and advertising cost for Defendant Airica and Defendant Chiara
93Macchiato (in relation to Defendant's product 5)First, a promotion and advertising cost for Defendant Airica should be deductedin a case that the cost is particularly increased for the production and sales of
Defendant's product 5.

It cannot be recognized from Exhibit Otsu B8 -8 that this cost

was directed to Defendant's product 5, nor are the details of advertisement definite.
Therefore, it cannot be recognized that the cost was increased particularly for the
production and sales of the Defendant's product 5.

Therefore, these promotion andadvertising costs are not deductible.
In contrast, Defendant Chiara Macchiato bears a promotion and advertising costof 1,089,837 yen for Defendant's product 5 (Exhibit Otsu B8-4).

This cost would be

not incurred unless Defendant's product 5 is produced and sold, and was thus increased
particularly for the production and sales thereof.
deducted.

Therefore, this cost should be

An amount of expenses including this cost and purchases amounts to

6,277,437 yen.
(C) Promotion and advertising costs of Defendant Rhythm (in relation to
Defendant's product 8)
a Promotion and advertising cost
It should be deducted in a case that an expense as Defendants allege isparticularly increased for the production and sales of Defendant's product 8.

ExhibitOtsu B12-3 includes various costs such as leaflet printing cost, a cost to run anadvertisement, and an exhibition cost, and most of the details thereof are indefinite,
including whether these costs are directed to Defendant's product 8 (Rather including
expenses obviously having nothing to do with Defendant's product 8, including DM forthe invitation to New Products Presentation Party held on April 2016 (Exhibit Otsu
B12-3[iv]) or Balance R water (Exhibit Otsu B12-3[v]).) Therefore, it cannot berecognized that this cost was increased particularly for the production and sales of
Defendant's product 8.
First of all, according to the following documentary evidence, the following
expenses (1,748,029 yen) are directed to Defendant's product 8.

This cost would be

not incurred unless Defendant's product 8 is produced and sold, and was thus increased
particularly for the production and sales thereof.
- Exhibit Otsu B12-3, [ii]2,000 leaflets according to the invoice on March 10, 2014 18,690 yen- Exhibit Otsu B12-3, [iii]3,000 leaflets according to the order on March 30, 2015

25,466 yen

5,000 A4-size leaflets according to the order on January 14, 2015
94

34,668 yen

5,000 A4-size leaflets according to the order on October 7, 2014

34,668 yen

5,000 A4-size leaflets according to the order on July 22, 2014

34,668 yen

2,000 A4-size leaflets according to the order on June 9, 2014

19,224 yen

2,000 A4-size leaflets according to the order on April 8, 2014

19,224 yen

2,000 A4-size leaflets according to the order on April 14, 2014

19,224 yen

2,000 A4-size leaflets according to the order on May 1, 2014

19,224 yen- Exhibit Otsu B12-3, [iv]Production and printing costs for an A1-size poster according to the invoice on
January 31, 2016 486,000 yen
2000 A4-size leaflets (blue) according to the order on September 11, 2015
19,224 yen
Product photo & retouching and resize, and magazine advertising resizing
according to the invoice on October 31, 2015 97,200 yen
TOP banner, Esgra leaflet 2P resize, pamphlet according to the invoice on
September 30, 2015

369,360 yen

Resize 200*150 mm according to the invoice on the same date (half the billing
amount in view of the inclusion of cream)

12,500 yen

5,000 A4-size leaflets according to the order on July 21, 2015

34,668 yen

5,000 A4-size leaflets (blue) according to the order on May 18, 2015 34,668 yen- Exhibit Otsu B12-3, [v]
600 copies of additional printing of poster according to the invoice on October
31, 2016 (half the billing amount in view of the inclusion of "Bodio", taking 100,000
yen discount into consideration)

70,833 yen

500 documents for training on cosmetics according to the order on October 4,2016 93,960 yen
An increased volume of 10,000 leaflets according to the order on November 30,
2016 304,560 yen
b Sales fee
Sales fee is paid by Defendant Rhythm as a fee to a person who contributed tothe sales when Defendant's product 8 is produced and sold (Exhibit Otsu B12 -4[i] to[iv], the overall gist of oral proceeding).

Therefore, this cost would be not incurred

unless Defendant's product 8 is produced and sold, and was thus increased particularly
for the production and sales thereof.

Further, according to the above documentary

evidence, the amount is recognized as 5,733,084 yen in total as below:
Fiscal 2013 10,920 yen
Fiscal 2014 1,937,844 yen (a total amount of those allocated to the columns
95

"sales fee" or "remuneration" of each payment details)
Fiscal 2015 3,628,800 yen (same as above)
Fiscal 2016 155,520 yen
c Expenses for sales promotion
The details are indefinite from Exhibit Otsu B12-5.

It cannot be recognizedthat this expense was increased particularly for the production and sales of Defendant's
product 8.
d Traveling expenses
A breakdown of traveling expense is unclear from Exhibit Otsu B12-6.

Itcannot be recognized that this expense was increased particularly for the production
and sales of Defendant's product 8.
e In conclusion, a deduction is affirmed to the extent of the above items a andb (7,481,113 yen).

The remaining expenses are not to be deducted.

Therefore, anamount of expenses including expenses (135,184,458 yen) found in the aforesaid(2)A(B)b amounts to 142,665,571 yen.
(D) Exhibition cost, etc. of Defendant AMPLY (in relation to Defendant's
product 8)
a Exhibition cost
It should be deducted in a case that an expense as Defendants allege isparticularly increased for the production and sales of Defendant's product 8.
According to the explanation by Defendant AMPLY, not only Defendant's product 8
was exhibited in an exhibition (see Exhibit Otsu B13-5, [i] to [iv]).
Defendant's product 8 was calculated as 20% of the whole expense.

An expense forFurther, the objectof the aforementioned exhibition is to introduce products produced and sold byDefendant AMPLY.

Given such a purpose, it cannot be inferred that the production

and sales of Defendant's product 8 resulted in the increase in expenses for the exhibition
instantly.
b Promotion costAccording to Exhibit Otsu B13-5, [v] and [vi], Defendant AMPLY paid
3,240,000 yen for cost to run an advertisement of Defendant's produ ct 8.

Therefore,

this cost would be not incurred unless Defendant's product 8 is produced and sold, andwas thus increased particularly for the production and sales thereof.
c Traveling and accommodation expenses
A breakdown of traveling and accommodation expenses is unclear from Exhibit
Otsu B13-6.

It cannot be recognized that this expense was increased particularly forthe production and sales of Defendant's product 8.
96

d In conclusion, a deduction is affirmed to the extent of the above item b(3,240,000 yen).

The remaining expenses are not to be deducted.

Therefore, anamount of expenses including purchases amounts to 121,450,207 yen.
(E) Employment cost of Defendant Wingsense (in relation to Defendant's
product 13)
It should be deducted in a case that an expense as Defendants allege isparticularly increased for the production and sales of Defendant's product 13.

Specific

circumstances of the engagement of part-time workers in the production and sales of
Defendant's product 13 as Defendants allege cannot be found in Exhibit Otsu B18-7,[xix].

Consequently, it cannot be recognized as a case to be deducted.

Therefore, it

is not deductible.
(F) Promotion and advertising costs of Defendant Clear noir (in relation to
Defendant's product 15)
a Promotion and advertising costs
It should be deducted in a case that an expense as Defendants allege isparticularly increased for the production and sales of Defendant's product 15.

ExhibitOtsu B20-3 includes various costs such as a signboard manufacturing cost, a cost to run
an advertisement, and an exhibition cost.

The details of the costs are indefinite,

including whether these costs are directed to Defendant's product 15.

It cannot berecognized that this expense was increased particularly for the production and sales of
Defendant's product 15.
b Traveling expense
A breakdown of traveling expense is unclear from Exhibit Otsu B20-5.

It

cannot be recognized that this expense was increased particularly for the production
and sales of Defendant's product 15.
c For the above reason, none of the expenses are deductible.
C For the above reason, expenses to be deducted with respect to the respective
Defendants' products (including purchase, raw material cost, and shipping cost) are as
per described in the column "expenses" of the attachment "List of amount as the court
finds".

Defendants' profit of the respective Defendants' products is as per describedin the column "profit" of the attachment "List of amount as the court finds" (a partchanged from the attachment "List of claimed amount (Plaintiff's allegation)" ishighlighted in blue).
(4) Ground for rebuttal to presumption
A In addition to the supposed facts, according to the evidence listed below andthe overall gist of oral proceedings, the following facts may be found97

(A) The other patent rights owned by Plaintiff
Plaintiff has patent rights according to the following respective patents inaddition to the respective patent rights.
a Patent No. 5164438 (Exhibit Ko 51-1.

Hereinafter referred to as "first patentof the other case").
Filing date: June 11, 2007
Original filing date: May 6, 1999
Registered Date: December 28, 2012
Title of invention: A composition for transdermal and transmucosal absorptionof carbon dioxideb Patent No. 5993336 (Exhibit Ko 51-2.

Hereinafter referred to as "second

patent of the other case").
Filing date: April 26, 2013
Original filing date: May 6, 1999
Registered Date: August 26, 2016
Title of invention: A composition for transdermal and transmucosal absorptionof carbon dioxide
c Patent No. 5643872 (Exhibit Ko 51-3)
Filing date: April 26, 2013
Original filing date: May 6, 1999
Registered Date: November 7, 2014
Title of invention: A composition for transdermal and transmucosal absorptio nof carbon dioxide(B) Plaintiff's products
Plaintiff has been producing and selling a two pack-type carbonate pack(hereinafter referred to as "Plaintiff's products") consisting of a gel and granules with aproduct name of "Mediplorer" and "Spa Oxygel" since September 1999.

Further,

Plaintiff advertises the respective products in the manner of "Power of carbonate tomoisturize skin deep inside", "bubbling carbonate gas delivers 'oxygen' necessary formetabolism of skin".

The method for use of Plaintiff's products comprises the stepsof putting a gel and granules into a cup, uniformly mixing with a spatula, heavily
applying a resultant gel onto cleaned skin, packing steadily for about 20 minutes or 30
minutes, roughly removing gel with a spatula, and wiping off with a wet towel to clean
off.
Further, Plaintiff also produces and sells a carbonate gel pack (Product name:
Nano Aqua Gel Pack) sold by Favorina Co., Ltd. (Exhibits Ko 5, 6, 46, 55 -2).
98

(C) Lawsuit filing and extra-judicial settlement by Plaintiff
a Plaintiff filed a suit with Osaka District Court for claiming the payment ofcompensation for damage and compensation against KBC, alleging that the company
infringed patent right 1.

The Court and the IP High Court both found a royalty fee as

10%, which constituted a basis for the calculation of compensation (Exhibits Ko 29, 30,52-1).
b Plaintiff filed a suit with Osaka District Court for claiming an injunction of
the production and sales of the products produced and sold by Creyente Co., Ltd. (ol dtrade name: Gracious Co., Ltd.) and compensation for damage, alleging that CreyenteCo., Ltd. infringed patent right 2.

Further, Plaintiff and Defendants reached anamicable settlement on April 16, 2014 to the effect that Defendants should not produce
and sell the products and Defendants should jointly pay settlement money of 2,000,000
yen (Exhibit Ko 52-2).
c Plaintiff claimed a suspension of the production and sales of the products
produced and sold by H2O Co., Ltd. on the grounds of the patent right according to thefirst patent of the other case, and reached an extra-judicial compromise on April 30,
2013 with the company, to the effect that Plaintiff may receive the payment ofsettlement money of 561,219 yen corresponding to 10% of the sales figure of the
products, and received a remittance of the settlement money (Exhibits Ko 49, 57 -1).
d Plaintiff claimed a suspension of the sales of the products sold by RISE Co.,
Ltd. on the grounds of the patent right according to the first patent of the other ca se,
and reached an extra-judicial compromise on October 1, 2013 with the company, to theeffect that Plaintiff may receive the payment of a settlement money of 346,225 yencorresponding to 10% of the sales figure of the products, and received a remittance ofthe settlement money (Exhibits Ko 50, 57-2).
e Plaintiff sent a notice claiming the immediate suspension of the production
and sales of the products described in No. 6 of the attachment "List of carbonate-related
cosmetics" to Happy One Co., Ltd. which produced and sold the products of Nos. 6 and
9 of the attachment, alleging that the company infringed the patent right according to
the first patent of the other case (Exhibit Ko 56).
f Plaintiff filed a suit with Osaka District Court for claiming an inj unction of
the production and sales of the products produced and sold by Creyente Co., Ltd. andcompensation for damage, alleging that Creyente Co., Ltd. infringed a patent rightaccording to the second patent of the other case (Exhibit Ko 52-3).
(D) Patent right owned by Defendant NeoChemir
Defendant NeoChemir has patent rights according to the following respective99

patents (hereinafter the inventions according to these patent rights are referred to as"patented inventions of Defendant NeoChemir")Further, the respective Defendants'

products include ones in which the existence of this patent right or the registration of
the patent right was definitely described in an outer case or in a promotion andadvertisement (Exhibit Ko 7, 8, 17, 20).
a Patent No. 4,130,181 (Exhibit Otsu A18)
Filing date: June 21, 2004
Original filing date: April 5, 2002
Registered date: May 30, 2008
Title of invention: Composition for the preparation of carbon dioxide topical
products
Claims[Claim 1]
A composition for the preparation of carbon dioxide topical products,
comprising: a particulate, in which a thickener is mixed with a water-soluble acid anda water-soluble dispersant, the particulate having essential components of said water soluble acid of malic acid, said thickener of one kind or two or more kinds selectedfrom processed starch, dextrin, and potato starch, and said water-soluble dispersant oflactose different from this thickener;
and a viscous composition to be mixed with said particulate when in use, theviscous composition having essential components of a carbonate, water, and a thickenerof one kind or two or more kinds selected from sodium alginate, alginate
propyleneglycol ester, and sodium carboxymethylcellulose,
wherein said particulate comprises 2 to 50 % by weight of said water-soluble
acid, 10 to 40 % by weight of said thickener for particulate and 30 to 85 % by weightof said water-soluble dispersant on a total weight basis of said particulate,wherein said viscous composition comprises 0.1 to 10 % by weight of said carbonate,
70 to 97.5 % by weight of water, and 0.5 to 20 % by weight of said thickener for viscouscomposition on a total weight basis of said viscous composition,
wherein a weight ratio of said particulate to said viscous composition is 1:10 to 40.
b Patent No. 4,248,878 (Exhibit Otsu A19)
Filing date: April 5, 2002
Registered date: January 23, 2009
Title of invention: Composition for the preparation of carbon dioxide topical
products
Claims100

[Claim 1]
A composition for the preparation of carbon dioxide topical products,
comprising: a particulate, in which a thickener is mixed with a water-soluble acid anda water-soluble dispersant, the particulate having essential components of said water soluble acid, said thickener of one kind or two or more kinds selected from processed
starch, dextrin, hydroxypropylcellulose, and xanthane gum and said water-soluble
dispersant selected from one kind or two or more kinds of D-mannitol, lactose, and urea
different from this thickener;
and a viscous composition to be mixed with said particulate when in use, theviscous composition having essential components of a carbonate, water, and a thickenerof one kind or two or more kinds selected from sodium alginate, alginate
propyleneglycol ester, and sodium carboxymethylcellulose,
wherein said particulate comprises 2 to 50 % by weight of said water-soluble
acid, 10 to 40 % by weight of said thickener for particulate, and 30 to 85 % by weightof said water-soluble dispersant on a total weight basis of said particulate,wherein said viscous composition comprises 0.1 to 10 % by weight of said
carbonate, 70 to 97.5 % by weight of water, and 0.5 to 20 % by weight of said thickener
for viscous composition on a total weight basis of said viscous composition,
wherein a weight ratio of said particulate to said viscous composition is 1:10 to40,
and said viscous composition comprises 1 to 15 % by weight of 1,3butyleneglycol to improve tackiness and stretching ability of carbon dioxide topical
product to a skin mucosa for an improved beauty effect or medical effect.
c Patent No. 4,589,432 (Exhibit Otsu A20)
Filing date: November 21, 2008
Original filing date: April 5, 2002
Registered Date: September 17, 2010
Title of invention: Composition for the preparation of carbon dioxide topical
products
Claims[Claim 1]
A composition for the preparation of carbon dioxide topical products,
comprising: a particulate, in which a thickener is mixed with a water-soluble acid anda water-soluble dispersant, the particulate having essential components of said watersoluble acid, said thickener of one kind or two or more kinds selected from a processed
starch, dextrin, potato starch, corn starch, xanthane gum, and hydroxypropylcellulose101and said water-soluble dispersant of lactose, sucrose, D-mannitol, and urea different
from this thickener;
and a viscous composition to be mixed with said particulate when in use, said
viscous composition having essential components of a carbonate, water, and a thickener,
wherein said particulate comprises 2 to 50 % by weight of said water-soluble
acid, 10 to 40 % by weight of said thickener, and 30 to 85 % by weight of said water soluble dispersant on a total weight basis of said particulate,wherein said viscous composition comprises 0.1 to 10 % by weight of said
carbonate, 70 to 97.5 % by weight of water, and 0.5 to 20 % by weight of said thickener
for viscous composition on a total weight basis of said viscous composition,
wherein a weight ratio of said particulate to said viscous composition is 1:10 to40.
(E) The respective Defendants’ products
a The outer case of the respective Defendants' products highlighted the effectsof carbonate gas on the skin, advocating that "Feature: This product effectively acts on
the skin (horny cell layer) with a power of carbonate gas generated by mixing granules
and a gel." (Defendant's product 3), "Effectively act on a skin* with a power ofcarbonate gas generated by mixing granules and a gel.

Support the potential power ofa skin to lead to a moisturized healthy skin. *Skin: horny layer" (Defendant's product4) and "Filled with oxygen, your skin is changed into fresh skin" (Defendant's product6).

Further, a similar description was found on the shopping website, and "Deliver

carbonate gas to a skin and approach from inside by utilizing the Bohr effect."(Defendant's product 9) (Exhibits Ko 7, 8, 22, 26, and 41).
b A method for the use of the respective Defendants' products is generally
instructed as below: [i] moderately mixing an agent A (granules) and an agent B (gel)and extending to the whole surface of the face slightly thicker (1 mm or so), [ii]estimated time for packing is 20 minutes to 30 minutes, [iii] After packing, a gel isremoved with an included spatula, and [iv] finally washing the face lightly to clean off(Defendant's product 3), while a method for use slightly differs depending on products.
But regarding a time of [ii], one is 15 minutes or more (Defendant's product 5),
one is 15 minutes to 30 minutes (or so) (Defendant's products 13, 14), and one is 15
minutes to 20 minutes (Defendant's product 9).

Thus a time for using a composition

obtained from the respective Defendants' products (a time for packing) is 15 minutes to
30 minutes.
Further, regarding [iii] and [iv], in Defendant's product 1, it is described that aproper amount of a mousse gelator is sampled with a spatula, and extended in a small
102

amount to the face so as to cover a gel coated on the face with a thin layer, after coating
the gelator, the gel is peeled several times, remaining gel is wiped off, or washed off
for complete removal.

In Defendant's product 8, it is described that a proper amountof an included fixer (hardening agent) is scooped with a cleaned spatula, and extended
first so as to cover a gel on a face, and after a surface is gradually solidified, a solid isslowly peeled off, and after peeling, the face must be washed off thoroughly.
Furthermore, the use of a solidifying agent was instructed to peel a gel in Defendant's
product 15 (Exhibits Ko 7, 8, 20, Exhibits Otsu A36-3, 42-4, Exhibit Otsu E all 27-3).
c A third party website describes a transdermal absorption effect of carbon
dioxide with respect to the respective Defendants' products (Exhibits Otsu A36 to 45,
Exhibits Otsu E all 27, 28), advocating that "carbonate gas concentration in a body isimproved -> body determines that 'an activity of cell is activated' -> deliver oxygen inblood to a skin" (Defendant's product 4.

Exhibit Otsu A37-2) or "carbonate gas

powder is concentrated in it!, it is a pack with a new concept for aging care that activatesskin itself" (Defendant's product 16.

Exhibit Otsu A43-2, Exhibit Otsu E all 26-2).

d Third party's website (including sellers.) mentioned a partial adiposeness
improving effect of the respective Defendants' products as in the following:(a) Defendant's product 1 (Exhibit Ko 13)"Partial slimming effect.

At the shortest, one time packing may bring about aneffect on the swelling of face and upper arm.

Partial slimming effect in a fat level ma ybring about an effect when a packing is continued for one month."(b) Defendant's product 2 (Exhibit Ko 14)"Using several times, pores are closed, and the face contour becomes slimmed.
Feel that a face contour is getting smaller"(c) Defendant's product 3 (Exhibit Ko 15)"When a carbonate pack is used, blood circulation of the skin and an activity ofcells is activated.

Thus remaining waste is excreted.

which is a cause of swelling, is improved.

Consequently, facial swelling is dissolved

to improve a facial contour slimming effect.
a slimmed contour.
metabolism.

As a result, water retention,

Face contour is slimmed to change into

Further, the use of a carbonate pack may also result in improved

Thus a partial slimming effect is also expected."(d) Defendant's product 4 (Exhibit Ko 16)"Increase in oxygen amount, blood vessel expansion, excretion promotion ofwaste, protein synthesis activation, fat metabolism slimming" -> "Improvement of
dullness, face contour slimming effect, etc."(e) Defendant's product 6 (Exhibit Ko 18)103

"It brings about effects not only on promotion of blood circulation, but also on
whitening and partial slimming."(f) Defendant's product 8 (Exhibit Otsu A38-2)"Major effects of carbonate gas pack" "facial contour slimming effect ... blood
circulation is activated and metabolism is promoted to remove swelling and cause afacial contour slimming effect"(g) Defendant's product 9 (Exhibit Ko 8)"Impression of a person who favors products" "I have a smaller face!"(h) Defendant's product 11 (Exhibit Ko 10)(Feature of products) "removing swelling and slimming facial contour" "An
activation of collagen synthesis results in improved wrinkles.

Fat metabolism

promotion is expected to provide a facial contour slimming effect."(Advice of use interval) "Facial slimming ...

Effects in a fat level are broughtby daily use for one month, thereafter continue at least two times weekly to maintainthe effect."(i) Defendant's product 13 (Exhibit Otsu A40-2)(Effects of the use of the products) "may be expected by one-time packing for apartial face contour slimming or a person who tends to have swelling of the upper arm.
The effect in fat level takes about one month.

It is recommended packing at least two

time weekly for maintaining the effects." etc.
(j) Defendant's product 15 (Exhibit Otsu A42-3)"...

Care for face contour slimming, anytime in your home, like a salon"(k) Defendant's product 16 (Exhibit Ko 24, Exhibit Otsu A43-5, Exhibit Otsu E
all 26-5)"Effects of Avenus Celeb Gel Pack" "Partial slimming promoting effect carbonate gas acts on muscle fibers, and activates fat metabolism to cause face contour
slimming, swelling improvement, and face lifting effects" (Exhibit Ko 24)"Carbonate gas effect of Avenus Celeb Gel Pack results in the impressive facecontour slimming!!""Effects of Avenus Celeb Gel Pack - Face contour slimming ... combustion ofexcess fat results in a face contour slimming" (Exhibit Otsu A43-5, Exhibit Otsu E all
26-5)(l) Defendant's product 17 (Exhibit Ko 23)"Impression of a person who favors products" "I have a smaller face!"e Furthermore, a third party's website describes unique features of the products(Exhibits Otsu A36 to 45, Exhibits Otsu E all 27, 28), saying that "A method for use i s
104just simple! ... Since a jelly serving for a solidifying agent is finally put on a pack tofacilitate peeling, the gel can be easily removed, which is a feature" (Defendant's
product 1.

Exhibit Otsu A36-2, Exhibit Otsu E all 27-2),"a weakly acidic carbonate

gas pack for all types of skin" (Defendant's product 8.

Exhibit Otsu A38 -2),"Carbonate power causes a focusing beauty component to be permeated into theskin!", "10 kinds of beauty components are mixed" (Defendant's product 12.

ExhibitOtsu A39-2), "To effectively cause a high level carbonate gas to be permeated into ahorny layer, a highly viscous gel" is used (Defendant's product 18.

Exhibit Otsu A45-

2).
B In the following, a consideration is given to Defendants' allegation of a groundfor the rebuttal to presumption.
(A) First Defendants allege that there is a ground for rebuttal to presumption
with regard to the efficacy of Plaintiff's products and the respective Defendants'
products.
Further, Defendants allege that [i] a technique to prevent discharge of generated
carbonate gas and [ii] a technique to sustain a time for transdermal absorption ofcarbonate gas are necessary for improving the Bohr effect.

It is recognized that theabove techniques [i] and [ii] as Defendants allege are substantially the same as thesustainability of bubbles described in the respective descriptions.

There is noevidence sufficient to find that the effect and efficacy of carbon dioxide on a skinconsiderably differ in Plaintiff's product and the respective Defendants' products having
a packing time of 15 minutes to 30 minutes.
Further, Defendant alleges that the respective Defendants' products have nopartial adiposeness improving effect.

However, Defendants' allegation is notconsistent with the content of the promotion and advertisement by Defendants andsellers of the respective Defendants' products.

As is found in the aforesaid item 2(1),carbon dioxide is known to have a partial slimming and a slimming effect.

In therespective Defendants' products, a thickener is prepared in advance in the respective
Defendants' products to cause unique function and effect of the respective inventionsof causing more carbon dioxide to be supplied to subcutaneous tissues in a sustainedmanner.

Therefore, it cannot be recognized as having no effect on partial adiposeness

improvement.
Further, Defendants allege that a partial adiposeness improving effect does not
function as a differentiating factor from the other company's products, and submit
Exhibit Otsu A35 and Exhibit Otsu E all 25 as evidence.
of questionnaire.

This evidence is only an item

Defendants' allegation is not acceptable in view of the fact that there
105

were a considerable number of websites in third party's websites that referred to a partial
adiposeness improving effect of a face with regard to the respective Defendants'
products.
In conclusion, it cannot be recognized that there is a difference sufficient to finda rebuttal to presumption with regard to the efficacy of Plaintiff's products and therespective Defendants' products.
(B) Subsequently, Defendants allege that Plaintiff's products are less convenient,or the sales of the respective Defendants' products have been accomplished by theplanning ability and marketing efforts of Defendants.
Indeed, it can be seen that Defendants had improved convenience of therespective products and had made a marketing effort to increase the sales.

It isundeniable that these facts considerably contribute to the sales of the respective
Defendants' products.

However, it is usual for business operators to make aconsiderable device and a marketing effort in the production and sales activity of
products.

It cannot be recognized that the Defendants' device or marketing effort as

mentioned above is particularly significant far beyond an ordinary level.

First of all,as in the aforesaid findings, in a composition obtained from the respective Defendants'
products, a thickener is prepared in advance to cause unique function and effect of therespective inventions of causing more carbon dioxide to be supplied to subcutaneous
tissues in a sustained manner.

It is thus obvious that such function and effect isessential in a carbonate pack cosmetics.

Further, as in the aforesaid findings, in the

promotion and advertisement of the respective Defendants' products, it is highlighted
that carbon dioxide realizes the effects of improvement on a beauty problem of a skinor partial adiposeness.

Taking the description of a third party's website into

consideration, it is reasonable to find that the effect of supplying carbon dioxide to
subcutaneous tissues also had a considerable impact on the buying motive of consumers.
Consequently, it cannot be recognized that the Defendants' allegation
corresponds to the rebuttal to presumption.
(C) Furthermore, Defendants allege that the respective Defendants' products fallwithin a technical scope of the Defendant NeoChemir's patented invention.
Indeed, as in the aforesaid findings, the outer case of the respective Defendants'
products definitely describes the existence of a patent right according to the patented
invention of Defendant NeoChemir.

In selling the respective Defendants' products, it

can be seen that it had been highlighted that the respective Defendants' products fellwithin a technical scope of the patented invention of Defendant NeoChemir.
However, Defendants fail to allege and establish the mixed components and its
106

proportion of the respective Defendants' products, and fail to establish the fact that therespective Defendants' products fall within the technical scope of the patented inventionof Defendant NeoChemir.

Even if the respective Defendants' products fall within thetechnical scope of the patented invention of Defendant NeoChemir as Defendants allege,
Defendant NeoChemir invention is an invention "directed to a composition to be used
for the preparation of a carbon dioxide topical product having beauty effect and medical
effect" (Exhibits Otsu A18 to 20, [0001]).

The object is "to obtain a composition forthe preparation of a carbon dioxide topical product capable of preparing a carbon
dioxide topical product that can achieve a stronger beauty effect and medical effect ina shorter time and being easily prepared in a short time without soiling clothes"(Exhibits Otsu A18 to 20, [0008]).

It cannot be recognized that a function and effectof "capable of preparing a carbon dioxide topical product that can achieve a stronger
beauty effect and medical effect in a shorter time and being easily prepared in a shorttime without soiling clothes" would not be achieved in the Plaintiff's products that are
the implemented products of the respective inventions and have a technical field incommon with the respective inventions.

There is no evidence sufficient to find that

there is a significant difference in the effects.

Further, a unique function and effect of

the respective inventions is to supply more carbon dioxide to subcutaneous tissues in asustained manner by preparing a thickener in advance.

It has a great significance thata function and effect of the respective inventions is caused in the respective Defendants'
products.

Further, as in the aforesaid findings, in the sales efficacy and effect arehighlighted by supplying carbon dioxide to subcutaneous tissues.
Consequently, it cannot be recognized that the Defendants' allegation affects abuying motive of consumers and the presumption is rebutted.
(D) In addition, Defendants allege that the effect is only incidental in view of an
essential feature of the respective inventions.
a Indeed, a pack cosmetics utilizing carbon dioxide (carbonate gas) has beensold since early times (Exhibit Ko 5, Exhibits Otsu A102, 105, 114, Exhibits Otsu E all
3, 6, etc.).

Therefore, it cannot be recognized that the supply of carbon dioxide to

subcutaneous tissue is buying motive of consumers.

As in the findings and ruling of

the aforesaid item 1, a unique function and effect of the respective inventions is tosupply more carbon dioxide to subcutaneous tissues by preliminary preparation of a
thickener.

This function and effect can be said to be a function and effect that areassociated with essential function and efficacy for Plaintiff's products and the respective
Defendants' products, both of which are kits of cosmetics for carbonate pack.
has a great impact on buying motive of consumers.
107

T hus itFurther, as in the finding of the aforesaid item 1(1)B(D)b, in a case thatbutyleneglycol is mixed, it must be said that a contribution of implementing therespective

inventionsofpreliminary

preparation-type

islimited;however,butyleneglycol is not mixed with a gel of the respective Defendants' products.

Thus

this point does not matter.
Further, Plaintiff points out the existence of a patent right of Plaintiff's own otherthan the respective patent rights.

There is no evidence sufficient to find that therespective Defendants' products fall within a technical scope of the invention according
to the patent right of Plaintiff's own other than the respective patent rights.

Thus

Plaintiff's allegation is not considered (Defendant NeoChemir filed a motion in the
Defendant's Brief (13) (on December 26, 2017) and the brief (15) (on February 14,2018) to dismiss a Plaintiff's allegation that it was difficult to produce carbonate packs
that avoided the patents according to the patent rights owned by Plaintiff other than therespective patent rights for a reason of a method of allegation or evidence presented
after the time for doing so.

However, Plaintiff fails to establish the above its own

allegation and the allegation is not acceptable.

Thus it is not recognized that the above

Plaintiff's allegation delays the completion of lawsuit.

Therefore, the above

Defendant NeoChemir's motion for dismissal should be dismissed.).
b Defendants alleges that there were competing products; however, it isreasonable to understand that the competing products are required to have a functionand effect comparable to the respective patents and be competitive as a comparable
alternative for consumers to find a reason for the rebuttal to presumption.
From this viewpoint, the products that Defendants allege as competing products
have a definitely different constitution from the respective Defendants' products, aslong as it is not two pack-type gel.

Thus it cannot be said to be a competing product.

Further, products are not competing products as long as they are not the preliminary
preparation type even in the case of two pack-type gel in view of the technicalsignificance of the respective inventions as in the aforesaid findings.
When a consideration is given to the attachment "List of carbonate-related
cosmetics" from such a viewpoint, products of preliminary preparation-type in a two
pack-type gel similarly to the respective inventions consist of: the products of Nos . 5,
6, 9 of the attachment of two pack-type of gel and powder (Exhibits Otsu A79, 80, 83,
Exhibits Otsu E all 49, 50, 53.

Further, the products of No. 3 dissolve powder into

water, and thus have a different constitution from the respective inventions); a nd the
products of Nos. 2, 12, 14 to 16, 26 of the attachment of two pack-type of a gel and agel (Exhibits Otsu A76, 86, 88 to 90, 100, Exhibits Otsu E all 46, 56, 58 to 60, and 70).
108However, the sales period and shares of these competing products are indefinite.

Thus

it cannot be recognized in such circumstances that a presumption is to be rebutted.
c For the above reason, the above Defendants' allegation is not acceptable, nor
can it be said that the effect of the respective inventions is only incidental.
(E) Furthermore, Defendants allege that a combination of a gel and a powder iswithin common general knowledge, and thus the technical value of the respective
inventions is low.
However, none of Shiseido 614, Exhibit Otsu E all 41, and Nisshin 324 as
Defendants allege is the invention directed to cosmetics that generates carbon dioxide(Exhibit Otsu A103, Exhibits Otsu E all 9, 35, 36, 41).
Defendants' allegation is not acceptable.

Therefore, the above

Further, Defendants allege that a gist of therespective inventions lies in the generation of carbon dioxide in the form of bubbles by
mixing two agents when in use and this is a well-known technique; however, the featureof the respective inventions is not limited to the above, as discussed ab ove.
Furthermore, Defendants allege that the respective inventions are easily conceivable byfully utilizing common general knowledge from a starting point of Ishigaki inventions
1 and 2; however, Ishigaki inventions 1 and 2 are both inventions of bubbling cosmetics
for massaging the skin by breaking bubbles of carbonate gas generated (Exhibits Otsu
E all 4, 37, 38).

Thus there is a disincentive to combine them with common generalknowledge as Defendants allege.

It cannot be recognized that it was easily

conceivable.
Therefore, the above Defendants' allegation is not acceptable, nor can it be said
that the technical value of the respective inventions is low.
(F) Defendants allege the other various things as a ground for rebuttal topresumption; however, the allegation is not acceptable in view of the aforesaid findings
and rulings, or cannot be recognized as a ground for rebuttal to presumption.
(G) Therefore, the presumption under Article 102, paragraph (2) of the Patent
Act is not rebutted in this case.
(5) Further, Defendant Cosmepro et al. allege that lack of an intention or aserious fault for the infringement of the respective patent rights should be considered
in determination of an amount of compensation for damage.

Even if Defendants

Cosmepro et al. had neither an intention nor a serious fault, it cannot be said reasonable
to consider the circumstances as Defendants Cosmepro et al. allege in the determinationof an amount of compensation for damage.
(6) In conclusion, an amount of damage to be calculated under Article 102,
paragraph (2) of the Patent Act is as per described in the column "profit" of the109attachment "List of amount as the court finds" (further, regarding Defendant's product8, a joint tort is established between Defendant Rhythm and Defendant AMPLY; thus,
Defendants bear a joint liability in the broad sense of the term for an amount combining
both profits).
11 Issue 6-2 (Plaintiff's amount of damage - Article 102, paragraph (3) of the
Patent Act)
(1) Plaintiff secondarily alleges an amount of damage calculated on the basis of
Article 102, paragraph (3) of the Patent Act.

Accordingly, just to be safe, aconsideration is given as to whether this amount might go beyond a damage calculated
by Article 102, paragraph (2).
(2) According to the evidence (Exhibit Ko 48, Exhibit Otsu A49) and the overall
gist of oral proceedings, the following facts can be found.
A In Table III-10 of "Research and study reports on how to utilize patents, etc.
in view of value assessment of intellectual property - Investigation of intellectual
property (assets) assessment and royalty rate - (March 2010)" prepared by TEIKOKUDATABANK, LTD., (hereinafter referred to as "the report"), as a questionnaire resultof royalty rate of domestic businesses, a royalty rate of patent in an industrial field ofchemistry is described as 5.3%.
First of all, in Table II-3 where a result of questionnaire on 2007 for domestic
businesses is described, an average of a royalty rate of patent in a technical category ofchemistry is described as 4.3% (maximum value 32.5%, minimum value 0.5%) (103cases).
B In Table III-12 of the reports, a royalty rate determined by court of patent is
described as 6.1% on average (maximum value: 20%, minimum value: 0.3%) (for 5
cases) for patents in an industrial field of chemistry from 2004 to 2008.
On the other hand, in Table III-11 of the report, a royalty rate of patent
determined by court is described as 3.1% on average (median 3.0%, maximum 5.0%,
for 7 cases) for patents in an industrial field of chemistry from 1997 to 2008.
(3) Taking into account the above facts and the findings and ruling of theaforesaid item 10, when a consideration is given to a reasonable license fee for the salesof the respective Defendants' products, an average license fee in recent statistics of atechnical field to which the respective inventions pertain is 5.3% in a result ofquestionnaire for domestic businesses, and 6.1% in the determination by court.
Further, taking into account the fact that this case reached an infringement lawsuit, alicense fee of this case would be approximately ●(omitted)●.
Therefore, an amount of damage calculated by Article 102, paragraph (3) of the110Patent Act is as per described in the column "an amount of ●(omitted)●" of theattachment "List of amount as the court finds" (a part changed from the attachment "Listof claimed amount (Plaintiff's allegation)" is highlighted in blue.).

Further, a license

fee that could be obtained by Plaintiff in a case that the respective Defendants' products
were sold from one to another is approved at the most to the extent of an amount for a
person who achieved the highest sales figure in a commercial distribution.

Therefore,

in a case where a joint tort is not established, the respective Defendants bear a joint
liability in the broad sense of the term for the respective Defendants' products with theother Defendants to the extent of a license fee borne by itself, whereas in a case that ajoint tort is established, the respective Defendants bear a joint liability in the broad
sense of the term with regard to a license fee for a person who achieved the highest
sales figure in a commercial distribution.
Therefore, an amount of damage of Defendant Chiara Macchiato for Defendant's
product 5, an amount of damage of Defendant SHIN for Defendant's product 9, and an
amount of damage of Defendant Japan Cosme for Defendant's products 11 and 17 arerespectively higher than the amounts of damage calculated by the same article,
paragraph (2) in the findings of the aforesaid item 10.

Thus for these products theamounts should be recognized as the amounts of damage of Plaintiff.
On the other hand, the amounts of damage calculated by the same article,
paragraph (2) found in the aforesaid item 10 are higher than the amounts of damage ofDefendants with regard to the remaining respective Defendants' products.

Thus forthese products the amounts of damage calculated by the same article, paragraph (2)should be recognized as the amounts of damage of Plaintiff
12 Summary(1) A claim for compensation for damage
As ruled in the aforesaid item 11, an amount of damage calculated by Article
102, paragraph (2) or paragraph (3) of the Patent Act should be recognized as an amountof damage of Plaintiff.

Further, Plaintiff entrusted a Plaintiff's procedural

representative with the pursuing of the lawsuit (Facts obvious to the court).

It isreasonable that an attorney cost in association with the Defendants' act is recognized as
ten percent of an amount described in the column "profit" or "an amount of●(omitted)●" of the attachment "List of amount as the court finds"(within the range
Plaintiff allege).

A total amount of damage of Plaintiff is as per described in thecolumn "profit + attorney fee" or "license fee + attorney fee" of the same attachment.
Therefore, the Plaintiff's claim for compensation for damage should be accepted
to the extent of an amount described in the same column of the same attachment.
111

(2) Day on which the computation of delinquent charge begins
In this case, Plaintiff alleges that the end of the sales period of the respective
Defendants' products or a date later than the end is a day on which the computation ofdelinquent charge begins.

First, in a case that Plaintiff alleges a date of the end of thesales as Defendants allege or a date later than the end as a day on which the computation
begins, the computation of date shall begin as Plaintiff alleges.

Further, otherwise,

Defendant Rhythm had sold Defendant's product 8 until February 28, 2017 (Exhibi t
Otsu B12-2), Defendant Japan Cosme had sold Defendant's product 11 until December
3, 2015 (Exhibit Otsu B16-2[viii]), Defendant Wingsense had sold Defendant's product13 until January 2015 (Exhibit Otsu B18-5), Defendant Clear noir had sold Defendant's
product 15 until January, 2015 (Exhibit Otsu B20-1[xiv]), Defendant Japan Cosme hadsold Defendant's product 17 until October 7, 2013 (Exhibit Otsu B16 -4[ii]), andDefendant Cosmepro had sold Defendant's product 18 until December 26, 2014 (Exhibit
Otsu B2-5[ii]).

Therefore, the end of the sales (the end of month in a case where thedate is indefinite on a day basis) shall be a day on which the computation of delinquentcharge begins.

Further, in a case that Defendants do not allege the sales period, thecomputation of date shall begin as Plaintiff alleges in view of the evidence (Exhibit
Otsu B8-3-[vii] with respect to Defendant Chiara Macchiato for Defendant's product 5)or the overall gist of oral proceedings.
(3) A claim for injunction and a claim for disposal
Defendants had argued against the fact that the respective Defendants' products
fall within a technical scope of the respective inventions, and had continued to produce
and sell the products even after the filing of this lawsuit.

In view of these facts, it isreasonable to find that Defendants are likely to infringe the respective patent rights even
if the production and sales of some of the respective Defendants' products are suspended
at present.

Therefore, the Plaintiff's claim for injunction should be accepted.

Further, it is reasonable to find a claim for disposal of the respective Defendants'
products and granules described in the column "granules" of the attachment "List of
Defendants' products" for the prevention of infringement of the respective patent rights
by Defendants.
13 Conclusion
As is discussed above, the Plaintiff's claims have a point to the extent of the above item
12, and thus should be accepted to the extent, and the remaining claims are groundlessand thus shall be dismissed, and the court renders as in the main text.
Additionally, it is not reasonable to attach a declaration of provisional execution foritems 1 to 26 of the main text, and thus the court decides not to attach the declaration.
112

The Osaka District Court, 26th Civil Division
Presiding Judge

Hiroyuki TAKAMATSU

Judge Seiichi NOGAMI
Judge Koichiro DAIMON

113

Attachment
List of Main text
1

Defendant NeoChemir and Defendant Cosmepro should not produce, sell orexport, or sell or offer the export of, the products described in item 1 of the attachment"List of Defendants' products".
2

Defendant NeoChemir should not produce, sell or export, or sell or offer theexport of, the products described in item 3 of the attachment "List of Defendants'
products".
3

Defendant NeoChemir should not produce, sell or export, or sell or offer theexport of, the products described in item 4 of the attachment "List of Defendants'
products".
4

Defendant Airica and Defendant Chiara Macchiato should not produce, sell orexport, or sell or offer the export of, the products described in item 5 of the attachment"List of Defendants' products".
5

Defendant Rhythm, Defendant AMPLY, and Defendant NeoChemir should not

produce, sell or export, or sell or offer the export of, the products described in item 8of the attachment "List of Defendants' products".
6

Defendant SHIN should not produce, sell or export, or sell or offer the export of,

the products described in item 9 of the attachment "List of Defendants' products".
7

Defendant Japan Cosme should not produce, sell or export, or sell or offer theexport of, the products described in item 11 of the attachment "List of Defendants'
products".
8

Defendant Wingsense and Defendant Cosme Bose should not produce, sell orexport, or sell or offer the export of, the products described in item 13 of the attachment"List of Defendants' products".
9

Defendant Cosmepro should not produce, sell or export, or sell or offer the exportof, the products described in item 14 of the attachment "List of Defendants' products".
10

Defendant Clear noir, Defendant NeoChemir, and Defendant Cosmepro should

not produce, sell or export, or sell or offer the export of, the products described in item
15 of the attachment "List of Defendants' products".
11

Defendant Japan Cosme should not produce, sell or export, or sell or offer theexport of, the products described in item 17 of the attachment "List of Defendants'
products".
12

Defendant Cosmepro should not produce, sell or export, or sell or offer the exportof, the products described in item 18 of the attachment "List of Defendants' products".
114

13

Defendant NeoChemir should not produce, sell or export, or sell or offer theexport of, granules in the column of "granules" of the attachment "List of Defendants'
products" to be used for the products described in items 2, 5, 6,7, 9, 11 to 14, and 16 to
18 of the attachment "List of Defendants' products".
14

Defendant NeoChemir and Defendant Cosmepro should dispose of the products

described in item 1 of the attachment "List of Defendants' products".
15

Defendant NeoChemir should dispose of the products described in item 3 of theattachment "List of Defendants' products".
16

Defendant NeoChemir should dispose of the products described in item 4 of theattachment "List of Defendants' products".
17

Defendant Airica and Defendant Chiara Macchiato should dispose of the

products described in item 5 of the attachment "List of Defendants' products".
18

Defendant Rhythm, Defendant AMPLY, and Defendant NeoChemir should

dispose of the products described in item 8 of the attachment "List of Defendants'
products".
19

Defendant SHIN should dispose of the products described in item 9 of theattachment "List of Defendants' products".
20

Defendant Japan Cosme should dispose of the products described in item 11 of

the attachment "List of Defendants' products".
21

Defendant Wingsense and Defendant Cosme Bose should dispose of the products

described in item 13 of the attachment "List of Defendants' products".
22

Defendant Cosmepro should dispose of the products described in item 14 of theattachment "List of Defendants' products".
23

Defendant Clear noir, Defendant NeoChemir, and Defendant Cosmepro should

dispose of the products described in item 15 of the attachment "List of Defendants'
products".
24

Defendant Japan Cosme should dispose of the products described in item 17 of

the attachment "List of Defendants' products".
25

Defendant Cosmepro should dispose of the products described in item 18 of theattachment "List of Defendants' products".
26

Defendant NeoChemir should dispose of granules in the column of "granules" ofthe attachment "List of Defendants' products" to be used for the products described in
items 2, 5, 6,7, 9, 11 to 14, and 16 to 18 of the attachment "List of Defendants' products".
27(1) Defendant NeoChemir should pay to Plaintiff 6,659,019 yen and an interest for
arrears in a proportion of 5 percent on an annual basis from December 16, 2016 to the115date paid.
(2) Defendant Cosmepro should pay to Plaintiff 705,873 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from December 16, 2016 to the date paid.
28

Defendant NeoChemir should pay to Plaintiff 11,573,540 yen and an interest for

arrears in a proportion of 5 percent on an annual basis from February 28, 2015 to thedate paid.
29

Defendant NeoChemir should pay to Plaintiff 2,100,968 yen and an interest for

arrears in a proportion of 5 percent on an annual basis from February 28, 2015 to thedate paid.
30

Defendant NeoChemir should pay to Plaintiff 8,192,802 yen and an interest for

arrears in a proportion of 5 percent on an annual basis from December 31, 2016 to thedate paid.
31(1) Defendant Airica should pay to Plaintiff 5,239,432 yen and an interest for arrears in
a proportion of 5 percent on an annual basis from March 17, 2017 to the date paid.
(2) Defendant Chiara Macchiato should pay to Plaintiff 691,152 yen and an interest for
arrears in a proportion of 5 percent on an annual basis from March 17, 2017 to the datepaid.
(3) Defendant NeoChemir should pay to Plaintiff 1,423,288 yen and an interest for
arrears in a proportion of 5 percent on an annual basis from March 17, 2017 to the date
paid.
32

Defendant NeoChemir should pay to Plaintiff 2,786,410 yen and an interest for

arrears in a proportion of 5 percent on an annual basis from December 16, 2016 to thedate paid.
33

Defendant NeoChemir should pay to Plaintiff 6,621,308 yen and an interest for

arrears in a proportion of 5 percent on an annual basis from February 29, 2016 to thedate paid.
34(1) Defendant Rhythm and Defendant AMPLY should jointly pay to Plaintiff
195,127,282 yen and an interest for arrears in a proportion of 5 percent on an annual
basis from February 28, 2017 to the date paid.
(2) Defendant NeoChemir should pay to Plaintiff 56,980,626 yen and an interest for
arrears in a proportion of 5 percent on an annual basis from December 16, 2016 to thedate paid.
35(1) Defendant SHIN should pay to Plaintiff 644,127 yen and an interest for arrears in a116

proportion of 5 percent on an annual basis from September 14, 2016 to the date paid.
(2) Defendant NeoChemir should pay to Plaintiff 1,257,616 yen and an interest for
arrears in a proportion of 5 percent on an annual basis from September 14, 2016 to thedate paid.
36(1) Defendant Japan Cosme should pay to Plaintiff 434,872 yen and an interest for
arrears in a proportion of 5 percent on an annual basis from December 3, 2015 to thedate paid.
(2) Defendant NeoChemir should pay to Plaintiff 847,960 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from December 3, 2015 to the date paid.
37

Defendant NeoChemir should pay to Plaintiff 521,381 yen and an interest for

arrears in a proportion of 5 percent on an annual basis from May 31, 2015 to the datepaid.
38(1) Defendant Wingsense should pay to Plaintiff 8,041,199 yen and an interest for
arrears in a proportion of 5 percent on an annual basis from January 31, 2017 to the datepaid.
(2) Defendant Cosme Bose should pay to Plaintiff 477,540 yen and an interest for
arrears in a proportion of 5 percent on an annual basis from December 16, 2016 to thedate paid.
(3) Defendant NeoChemir should pay to Plaintiff 2,786,410 yen and an interest for
arrears in a proportion of 5 percent on an annual basis from December 16, 2016 to th edate paid.
39(1) Defendant NeoChemir should pay to Plaintiff 484,985 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from December 16, 2016 to the date paid.
(2) Defendant Cosmepro should pay to Plaintiff 312,434 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from December 16, 2016 to the date paid.
40(1) Defendant Clear noir should pay to Plaintiff 12,236,265 yen and an interest for
arrears in a proportion of 5 percent on an annual basis from January 31, 2017 to the datepaid.
(2) Defendant Cosmepro should pay to Plaintiff 2,277,668 yen and an interest for
arrears in a proportion of 5 percent on an annual basis from December 16, 2016 to thedate paid.
(3) Defendant NeoChemir should pay to Plaintiff 6,806,545 yen and an interest for117

arrears in a proportion of 5 percent on an annual basis from December 16, 2016 to thedate paid.
41

Defendant NeoChemir should pay to Plaintiff 896,579 yen and an interest for

arrears in a proportion of 5 percent on an annual basis from May 16, 2017 to the datepaid.
42(1) Defendant Japan Cosme should pay to Plaintiff 121,000 yen and an interest for
arrears in a proportion of 5 percent on an annual basis from October 7, 2013 to the datepaid.
(2) Defendant NeoChemir should pay to Plaintiff 237,772 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from January 31, 2011 to the date paid.
43(1) Defendant Cosmepro should pay to Plaintiff 390,548 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from December 26, 2014 to the date paid.
(2) Defendant NeoChemir should pay to Plaintiff 900,686 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from December 25, 2014 to the date paid.
44

All the remaining claims from Plaintiff shall be dismissed.

45

Regarding the court costs, one-fourth of the cost incurred to Plaintiff, one-fourthof the cost incurred to Defendant NeoChemir, one-fourth of the cost incurred to
Defendant Rhythm and Defendant AMPLY, and one-fourth of the cost incurred to theremaining Defendants shall be borne by Plaintiff.

One-half the cost incurred toPlaintiff and three-fourths of the cost incurred to Defendant NeoChemir shall be borneby Defendant NeoChemir.

Three-fourteenths of the cost incurred to Plaintiff andthree-fourths of the cost incurred to Defendant Rhythm and Defendant AMPLY shallbe jointly borne by Defendant Rhythm and Defendant AMPLY.

One twenty-eighth ofthe cost incurred to Plaintiff and three-fourths of the cost incurred to the remaining
Defendants shall be borne by the remaining Defendants.
46

This court decision may be provisionally executed as far as item 27 to item 43.
Period118

Attachment
List of claims
1

Defendant NeoChemir and Defendant Cosmepro should not produce, sell orexport, or sell or offer the export of, the products described in item 1 of the attachment"List of Defendants' products".
2

Defendant NeoChemir should not produce, sell or export, or sell or offer theexport of, the products described in item 3 of the attachment "List of Defendants'
products".
3

Defendant NeoChemir should not produce, sell or export, or sell or offer theexport of, the products described in item 4 of the attachment "List of Defendants'
products".
4

Defendant Airica and Defendant Chiara Macchiato should not produce, sell orexport, or sell or offer the export of, the products described in item 5 of the attachment"List of Defendants' products".
5

Defendant Rhythm, Defendant AMPLY, and Defendant NeoChemir should not

produce, sell or export, or sell or offer the export of, the products described in item 8of the attachment "List of Defendants' products".
6

Defendant SHIN should not produce, sell or export, or sell or offer the export of,

the products described in item 9 of the attachment "List of Defendants' products".
7

Defendant Japan Cosme should not produce, sell or export, or sell or offer theexport of, the products described in item 11 of the attachment "List of Defendants'
products".
8

Defendant Wingsense and Defendant Cosme Bose should not produce, sell orexport, or sell or offer the export of, the products described in item 13 of the attachment"List of Defendants' products".
9

Defendant Cosmepro should not produce, sell or export, or sell or offer the exportof, the products described in item 14 of the attachment "List of Defendants' products".
10

Defendant Clear noir, Defendant NeoChemir and Defendant Cosmepro should

not produce, sell or export, or sell or offer the export of, the products describe d in item
15 of the attachment "List of Defendants' products".
11

Defendant Japan Cosme should not produce, sell or export, or sell or offer theexport of, the products described in item 17 of the attachment "List of Defendants'
products".
12

Defendant Cosmepro should not produce, sell or export, or sell or offer the exportof, the products described in item 18 of the attachment "List of Defendants' products".
119

13

Defendant NeoChemir should not produce, sell or export, or sell or offer theexport of, granules used for the products described in items 2, 5, 6, 7, 9, 11 to 14, and
16 to 18 of the attachment "List of Defendants' products".
14

Defendant NeoChemir and Defendant Cosmepro should dispose of the products

described in item 1 of the attachment "List of Defendants' products".
15

Defendant NeoChemir should dispose of the products described in item 3 of theattachment "List of Defendants' products".
16

Defendant NeoChemir should dispose of the products described in item 4 of theattachment "List of Defendants' products".
17

Defendant Airica and Defendant Chiara Macchiato should dispose of the

products described in item 5 of the attachment "List of Defendants' products".
18

Defendant Rhythm, Defendant AMPLY and Defendant NeoChemir should

dispose of the products described in item 8 of the attachment "List of Defendants'
products".
19

Defendant SHIN should dispose of the products described in item 9 of theattachment "List of Defendants' products".
20

Defendant Japan Cosme should dispose of the products described in item 11 of

the attachment "List of Defendants' products".
21

Defendant Wingsense and Defendant Cosme Bose should dispose of the products

described in item 13 of the attachment "List of Defendants' products".
22

Defendant Cosmepro should dispose of the products described in item 14 of theattachment "List of Defendants' products".
23

Defendant Clear noir, Defendant NeoChemir, and Defendant Cosmepro should

dispose of the products described in item 15 of the attachment "List of Defendants'
products".
24

Defendant Japan Cosme should dispose of the products described in item 17 of

the attachment "List of Defendants' products".
25

Defendant Cosmepro should dispose of the products described in item 18 of theattachment "List of Defendants' products".
26

Defendant NeoChemir should dispose of the granules used for the products

described in items 2, 5, 6, 7, 9, 11 to 14, and 16 to 18 of the attachment "List of
Defendants' products".
27(Primary claim)
Defendant NeoChemir and Defendant Cosmepro should jointly pay to Plaintiff
7,364,892 yen and an interest for arrears in a proportion of 5 percent on an annual basis
120

from December 16, 2016 to the date paid.
(Secondary claim)(1) Defendant NeoChemir should pay to Plaintiff 969,206 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from December 16, 2016 to the date paid(with the proviso of jointly with Defendant Cosmepro to the extent of 104,104 yen).
(2) Defendant Cosmepro should pay to Plaintiff 104,104 yen and an interest for arrears
in a proportion of 5 percent from December 16, 2016 to the date paid (with the proviso
of jointly with Defendant NeoChemir).
28(Primary claim)
Defendant NeoChemir should pay to Plaintiff 20,853,199 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from February 28, 2015 to the date paid.
(Secondary claim)
Defendant NeoChemir should pay to Plaintiff 1,364,000 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from February 28, 2015 to the date paid.
29(Primary claim)
Defendant NeoChemir should pay to Plaintiff 10,037,758 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from February 28, 2015 to the date paid.
(Secondary claim)
Defendant NeoChemir should jointly pay to Plaintiff 415,800 yen and an interest for
arrears in a proportion of 5 percent on an annual basis from February 28, 2015 to thedate paid.
30(Primary claim)
Defendant NeoChemir should pay to Plaintiff 13,772,552 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from December 31, 2016 to the date paid.
(Secondary claim)
Defendant NeoChemir should pay to Plaintiff 1,648,266 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from December 31, 2016 to the date paid.
31(Primary claim)
Defendant Airica, Defendant Chiara Macchiato, and Defendant NeoChemir should
jointly pay 7,867,880 yen and an interest for arrears in a proportion of 5 percent on anannual basis from March 17, 2017 to the date paid.
(Secondary claim)121

(1) Defendant Airica should pay to Plaintiff 1,215,095 yen and an interest for arrears in
a proportion of 5 percent on an annual basis from March 17, 2017 to the date paid (withthe proviso of jointly with Defendant Chiara Macchiato to the extent of 691,152 yen
and jointly with Defendant NeoChemir to the extent of 184,140 yen).
(2) Defendant Chiara Macchiato should pay to Plaintiff 691,152 yen and an interest for
arrears in a proportion of 5 percent on an annual basis from March 17, 2017 to the da tepaid (with the proviso of jointly with Defendant Airica, and jointly with Defendant
NeoChemir to the extent of 184,140 yen).
(3) Defendant NeoChemir should pay to Plaintiff 184,140 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from March 17, 2017 to the date paid(with the proviso of jointly with Defendant Airica and Defendant Chiara Macchiato).
32(Primary claim)
Defendant NeoChemir should pay to Plaintiff 6,155,646 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from December 16, 2016 to the date paid.
(Secondary claim) Defendant NeoChemir should pay to Plaintiff 316,800 yen and aninterest for arrears in a proportion of 5 percent on an annual basis from December 16,
2016 to the date paid.
33(Primary claim)
Defendant NeoChemir should pay to Plaintiff 41,949,557 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from February 29, 2016 to the date paid.
(Secondary claim)
Defendant NeoChemir should pay to Plaintiff 770,880 yen and an interest for arrears in
a proportion of 5 percent on an annual basis from November 6, 2015 to the date paid.
34(Primary claim)
Defendant Rhythm, Defendant AMPLY, and Defendant NeoChemir should jointly pay
to Plaintiff 270,633,428 yen and an interest for arrears in a proportion of 5 percent on
an annual basis from December 16, 2016 to the date paid.
(Secondary claim)(1) Defendant Rhythm should pay to Plaintiff 35,205,941 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from December 16, 2016 to the date paid(with the proviso of jointly with Defendant AMPLY to the extent of 14,032,752 yen,and jointly with Defendant NeoChemir to the extent of 12,135,200 yen).
(2) Defendant AMPLY should pay to Plaintiff 14,032,752 yen and an interest for arrears
122

in a proportion of 5 percent on an annual basis from December 16, 2016 to the date paid(with the proviso of jointly with Defendant Rhythm, and jointly with Defendant
NeoChemir to the extent of 12,135,200 yen).
(3) Defendant NeoChemir should pay to Plaintiff 12,135,200 yen and an interest for
arrears in a proportion of 5 percent on an annual basis from December 16, 2016 to thedate paid (with the proviso of jointly with Defendant Rhythm and Defendant AMPLY).
35(Primary claim)
Defendant SHIN and Defendant NeoChemir should jointly pay to Plaintiff 1,765,707
yen and an interest for arrears in a proportion of 5 percent on an annual basis from
September 14, 2016 to the date paid.
(Secondary claim)(1) Defendant SHIN should pay to Plaintiff 644,127 yen and an interest for arrears in a
proportion of 5 percent on an annual basis from September 14, 2016 to the date paid(with the proviso of jointly with Defendant NeoChemir to the extent of 162,834 yen).
(2) Defendant NeoChemir should pay to Plaintiff 162,834 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from September 14, 2016 to the datepaid (with the proviso that jointly with Defendant SHIN).
36(Primary claim)
Defendant Japan Cosme and Defendant NeoChemir should jointly pay to Plaintiff
1,046,895 yen and an interest for arrears in a proportion of 5 percent on an annual basis
from December 3, 2015 to the date paid.
(Secondary claim)(1) Defendant Cosmepro should pay to Plaintiff 434,872 yen and an interest for arrears
in a proportion of 5 percent from December 3, 2015 to the date paid (with the proviso
of jointly with Defendant NeoChemir to the extent of 109,792 yen).
(2) Defendant NeoChemir should pay to Plaintiff 109,792 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from December 3, 2015 to the date paid(with the proviso of jointly with Defendant Japan Cosme).
37(Primary claim)
Defendant NeoChemir should pay to Plaintiff 521,381 yen and an interest for arrears in
a proportion of 5 percent on an annual basis from May 31, 2015 to the date paid.
(Secondary claim)
Defendant NeoChemir should pay to Plaintiff 67,507 yen and an interest for arrears in123

a proportion of 5 percent on an annual basis from May 31, 2015 to the date paid.
38(Primary claim)
Defendant Wingsense, Defendant Cosme Bose, and Defendant NeoChemir should
jointly pay to Plaintiff 12,547,058 yen and an interest for arrears in a proportion of 5
percent on an annual basis from December 16, 2016 to the date paid.
(Secondary claim)(1) Defendant Wingsense should pay to Plaintiff 1,841,222 yen and an interest for
arrears in a proportion of 5 percent on an annual basis from December 16, 2016 to thedate paid (with the proviso of jointly with Defendant Cosme Bose to the extent of
204,692 yen, and jointly with Defendant NeoChemir to the extent of 316,800 yen).
(2) Defendant Cosme Bose should pay to Plaintiff 204,692 yen and an interest for
arrears in a proportion of 5 percent on an annual basis from February 28, 2014 to thedate paid (with the proviso of jointly with Defendant Wingsense and Defendant
NeoChemir).
(3) Defendant NeoChemir should pay to Plaintiff 316,800 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from February 28, 2014 to the date paid(with the proviso of jointly with Defendant Wingsense, and jointly with Defendant
Cosme Bose to the extent of 204,692 yen).
39(Primary claim)
Defendant NeoChemir and Defendant Cosmepro should jointly pay to Plaintiff 797,419
yen and an interest for arrears in a proportion of 5 percent on an annual basis from
December 16, 2016 to the date paid.
(Secondary claim)(1) Defendant Cosmepro should pay to Plaintiff 43,619 yen and an interest fo r arrears
in a proportion of 5 percent on an annual basis from December 16, 2016 to the date paid(with the proviso of jointly with Defendant NeoChemir).
(2) Defendant NeoChemir should pay to Plaintiff 64,911 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from December 16, 2016 to the date paid(with the proviso of jointly with Defendant Cosmepro to the extent of 43,619 yen).
40(Primary claim)
Defendant Clear noir, Defendant Japan Cosme, and Defendant NeoChemir should
jointly pay to Plaintiff 21,320,478 yen and an interest for arrears in a proportion of 5
percent on an annual basis from December 16, 2016 to the date paid.
124

(Secondary claim)(1) Defendant Clear noir should pay to Plaintiff 2,661,604 yen and an interest for arr ears
in a proportion of 5 percent on an annual basis from December 16, 2016 to the date paid(with the proviso of jointly with Defendant Cosmepro to the extent of 346,037 yen, andjointly with Defendant NeoChemir to the extent of 1,589,682 yen).
(2) Defendant Cosmepro should pay to Plaintiff 346,037 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from December 16, 2016 to the date paid(with the proviso of jointly with Defendant Clear noir and Defendant NeoChemir).
(3) Defendant NeoChemir should pay to Plaintiff 1,589,682 yen and an interest for
arrears in a proportion of 5 percent on an annual basis from December 16, 2016 to thedate paid (with the proviso of jointly with Defendant Clear noir, and jointly withDefendant Cosmepro to the extent of 346,037 yen).
41(Primary claim)
Defendant NeoChemir should pay to Plaintiff 1,598,640 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from May 16, 2017 to the date paid.
(Secondary claim)
Defendant NeoChemir should pay to Plaintiff 105,600 yen and an interest for arrears in
a proportion of 5 percent on an annual basis from May 16, 2017 to the date paid.
42(Primary claim)
Defendant Japan Cosme and Defendant NeoChemir should jointly pay to Plaintiff
302,672 yen and an interest for arrears in a proportion of 5 percent on an annual basis
from January 31, 2011 to the date paid.
(Secondary claim)(1) Defendant Cosmepro should pay to Plaintiff 121,000 yen and an interest for arrears
in a proportion of 5 percent from January 31, 2011 to the date paid (with the proviso of
jointly with Defendant NeoChemir to the extent of 30,786 yen).
(2) Defendant NeoChemir should pay to Plaintiff 30,786 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from January 31, 2011 to the date paid(with the proviso of jointly with Defendant Japan Cosme).
43(Primary claim)
Defendant Cosmepro and Defendant NeoChemir should jointly pay to Plaintiff
1,334,002 yen and an interest for arrears in a proportion of 5 percent on an annual basis
from December 25, 2014 to the date paid.
125

(Secondary claim)(1) Defendant Cosmepro should pay to Plaintiff 80,432 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from December 25, 2014 to the date paid(with the proviso of jointly with Defendant NeoChemir).
(2) Defendant NeoChemir should pay to Plaintiff 120,549 yen and an interest for arrears
in a proportion of 5 percent on an annual basis from December 25, 2014 to the date paid(with the proviso of jointly with Defendant Cosmepro to the extent of 80,432 yen).
Period126

Attachment
List of Defendants' products
1

eCO2 GEL EX

2LEVANTE LITS Sparkling gel pack3

AL Gel Pack

4

HIN Acnes Labo R GEL Pack

5

Soulage 315

6Oxygen Jacuzzi

7

Sparkle 1000 Plus

8

RougeFil Pret a Pack9

La felice CO2 Gel Pack10

(missing number)

11

Simon CO2 Pack

12

Premium Selection Gel Pack

13

Ever Feel Mixing Gel Pack

14

COO FORCE Gel Pack

15

DM Skin Gel Pack C

16

Avenus Celeb Gel Pack

17

Cinderella Queen Beauty CO2 Gel Pack

18

E. SA. White CO2 Gel Mask
Period127

(omitted)
AppendixCommercial distribution of each Defendant's product1. Defendant's product 1
Defendant Cosmepro [Manufacturer and distributor]↓(Sell final products)
Defendant NeoChemir [Seller]↓(Sell final products)
Retail shops and General consumers
2. Defendant's product 2
Defendant NeoChemir↓ (Sell granules)
Esco [Manufacturer and distributor]↓(Sell final products)
LEVANTE [Seller]↓(Sell final products)
NatureLab [General Sales Agent]↓(Sell final products)
Retail shops and General consumers
3. Defendant's product 3
Defendant NeoChemir↓(Sell final products)
TRUST WINGS↓(Sell final products)
ACNES LABO [Manufacturer and distributor]↓(Sell final products)
NatureLab [General Sales Agent]↓(Sell final products)
Retail shops and General consumers
4. Defendant's product 4
Defendant NeoChemir
128↓(Sell final products)
ACNES LABO [Manufacturer and distributor]↓(Sell final products)
Retail shops and General consumers
5. Defendant's product 5
Defendant NeoChemir↓ (Sell granules)
Company not a party to the case (Company name unknown)↓(Sell final products)
Defendant Chiara Macchiato [Manufacturer and distributor]↓(Sell final products)
Defendant Airica [Seller]↓(Sell final products)
Retail shops and General consumers
6. Defendant's product 6
Defendant NeoChemir↓ (Sell granules)
Company not a party to the case (Company name unknown)↓(Sell final products)
CEFINE [Manufacturer and distributor]↓(Sell final products)
Retail shops and General consumers
7. Defendant's product 7
Defendant NeoChemir↓ (Sell granules)
Company not a party to the case (Company name unknown)
SUHADA Cosmetics [Manufacturer and distributor]↓(Sell final products)
Wamu [Seller]↓(Sell final products)
Retail shops and General consumers

129

8. Defendant's product 8
Defendant NeoChemir↓(Sell final products)
Defendant AMPLY [Manufacturer and distributor]↓(Sell final products)
Defendant Rhythm [Seller]↓(Sell final products)
Retail shops and General consumers
9. Defendant's product 9
Defendant NeoChemir↓ (Sell granules)
Company not a party to the case (Company name unknown)↓(Sell final products)
Defendant SHIN [Manufacturer and distributor]↓(Sell final products)
Retail shops and General consumers
10. Defendant's product 11
Defendant NeoChemir↓ (Sell granules)
Company not a party to the case (Company name unknown)↓(Sell final products)
Defendant Japan Cosme Service [Manufacturer and distributor]↓(Sell final products)
L. E. SIMON [Seller]↓(Sell final products)
Retail shops and General consumers
11. Defendant's product 12
Defendant NeoChemir↓ (Sell granules)
Company not a party to the case (Company name unknown)↓(Sell final products)
AVON PRODUCTS [Manufacturer and distributor]↓(Sell final products)
130Retail shops and General consumers
12. Defendant's product 13
Defendant NeoChemir↓ (Sell granules)
Defendant Cosme Bose [Manufacturer and distributor]↓(Sell final products)
Defendant Wingsense [Seller]↓(Sell final products)
Retail shops and General consumers
13. Defendant's product 14
Defendant NeoChemir↓ (Sell granules)
Defendant Cosmepro [Manufacturer and distributor]↓(Sell final products)
Retail shops and General consumers
14. Defendant's product 15
Defendant Cosmepro [Manufacturer and distributor]↓(Sell final products)
Defendant NeoChemir↓(Sell final products)
Defendant Clear noir [Seller]↓(Sell final products)
Retail shops and General consumers
15. Defendant's product 16
Defendant NeoChemir↓ (Sell granules)
Esco [Manufacturer and distributor]↓(Sell final products)
GOLD RUSH [Seller]↓(Sell final products)
Retail shops and General consumers

13116. Defendant's product 17
Defendant NeoChemir↓ (Sell granules)
Company not a party to the case (Company name unknown)↓(Sell final products)
Defendant Japan Cosme [Manufacturer and distributor]↓(Sell final products)
Cinderella JAPAN [Seller]↓(Sell final products)
Retail shops and General consumers
17. Defendant's product 18
Defendant NeoChemir↓ (Sell granules)
Defendant Cosmepro [Manufacturer and distributor]↓(Sell final products)
Company not a party to the case (Company name unknown)↓(Sell final products)
E.SA. White COMPANY LIMITED [Seller]↓(Sell final products)
Retail shops and General consumers
Period(omitted)132