Patent

Date

July 6, 2022

Right

Case

2020 (Ne) 10042

Court

Intellectual Property High
Court, Second Division

number- A case concerning a demand of payment for damages based on the patent right for
an invention titled "Vehicle guidance system," in which the court found an
infringement by the First-instance Defendant and calculated the amount of damages
pursuant to Article 102, paragraph (3) of the Patent Act.
Case type: Appeal case of seeking injunction against patent infringement
Results: Modification of the prior instance judgment, part of the claims granted
References: Article 29, paragraph (2) and Article 102, paragraph (3) of the Patent Act
Related rights, etc.: Patent No. 5769141, Patent No. 6159845
Judgment in prior instance: Tokyo District Court, 2019 (Wa) 7178, rendered on June 11,2020
Summary of the Judgment
1. In this case, the First-instance Plaintiff, who is a patentee [related to/for] two patents(hereinafter referred to as the "Patents") for an invention titled "Vehicle guidancesystem," alleged that the First-instance Defendant's systems (smart interchange(hereinafter referred to as the "smart IC") exclusively for ETC vehicles that are installedat Sano Service Area on the Tohoku Expressway, which is an expressway) used by theFirst-instance Defendant infringe the patent right in question (hereinafter referred to as
the "Patent Right"), and the First-instance Plaintiff demanded that the First-instance
Defendant pay compensation for damages based on the tort. The judgment in priorinstance determined that the First-instance Defendant's systems did not belong to thetechnical scope of the Patents, and dismissed all the claims of the First-instance Plaintiff.
Accordingly, the First-instance Plaintiff filed an appeal.
2. In this judgment, as mentioned below, the court determined that the First -instance
Defendant's systems belong to the technical scope of the patented inventions in question
and that there are no grounds for invalidation for the patented inventions in question,and then, calculated the amount of damages pursuant to Article 102, paragraph (3) ofthe Patent Act and granted all claims of the First-instance Plaintiff in the prior instanceand partially granted the claims that were expanded in the appeal court.
(1) Sufficiency
In the claims of the inventions in question (hereinafter referred to as the"Inventions"), concerning the "first detection means," there are the following statementsionly: it detects a vehicle that enters or exits a toll gate, service area, or parking area on
a toll road; the "first bar" is installed by corresponding to the "first detection means";and if the entry of a vehicle is detected by the "first detection means," it lowers the firstbar after the vehicle passes through it. Other than the above, there is no statement to
identify the positional relationship where the "first bar," "first detection means," and"communication means" are installed. Therefore, whether the constituent featur es are
fulfilled is not determined by the positional relationship where each piece is installed.
In the description in question (hereinafter referred to as the "Description"), an
example with a structure where a communication means (antenna 3 in front o f the gate)is placed beyond the first bar (bar 1) and the first detection means (vehicle sensor 2a)
is indicated; however, it is only an embodiment and there is no grounds to construe theInventions by only limiting to the aforementioned structure.
(2) Invalidation theory
Looking at Difference 1 (Exhibit Otsu 35 Invention [prior art] has no bars that areequivalent to the first bar installed by corresponding to the first detection means in theInventions), in Exhibit Otsu 35 Invention, vehicle dividers 11 and 12 are equivalent to"the first detection means" in the Inventions. There are no statements or suggestions in
Exhibit Otsu 35 that any bar corresponding to vehicle dividers 11 and 12 is installed inaddition to bar 17. There are no suggestions related to difference 1 in the secondaryprior art either, and therefore, it is not easily conceived of by a person skilled in the art.
In addition, a breach of the clarity requirements and other grounds for invalidation
were not found.
(3) Damages
When using an expressway, a vehicle passes an interchange twice as a gate, andtherefore, half of the fixed amount (terminal charge) that is charged per use and the toll
based on the distance from Sano SA Smart IC, where the First-instance Defendant's
systems are installed, to the next interchange fall under sales related to the use of theFirst-instance Defendant's systems. In light of the fact that the First-instance Defendantearns profits, such as cost reduction, by installing said smart IC, while the number ofuser vehicles did not increase significantly; the First-instance Plaintiff did not work the
Patents by itself and there is no possibility to work them in the future either; and theFirst-instance Defendant continues working the Patents even after receiving a warningfrom the First-instance Plaintiff, and other facts, the royalty rate of the Patents should
be 2%

ii

Judgment rendered on July 6, 2022
2020 (Ne) 10042, Case of appeal for seeking compensation(Court of prior instance: Tokyo District Court, 2019 (Wa) 7178)
Date of conclusion of oral argument: April 20, 2022
Judgment
Appellant: Yugen Kaisha PXZAppellee: East Nippon Expressway Company Limited

Main text
1. The judgment in prior instance shall be rescinded.
2. The Appellee shall pay to the Appellant 26,930,317 yen and the amount accrued on
the portion of 10,000,000 yen at the rate of 5% per annum for the period from April 2,2019 until the completion of the payment and the amount accrued on the portion of
16,930,317 yen at the rate of 3% per annum for the period from November 12, 2021
until the completion of the payment.
3. The Appellant's other expanded claims in this instance shall be dismissed.
4. Court costs in the first and second instances shall be divided into five and theAppellant shall bear four-fifths of the costs and the Appellee shall bear the rest.
5. This judgment may be executed provisionally only for paragraph 2.
Facts and reasonsAbbreviations of terms as used herein and the meaning of the abbreviations shall be
subject to the judgment in prior instance unless they are assigned or defined in thisjudgment and the term "Plaintiff" as used in the judgment in prior instance shall bedeemed to be replaced with "Appellant" and the term "Defendant" shall be deemed tobe replaced with "Appellee" as necessary. In addition, the term "Attachment" in thecited part in the judgment in prior instance are all altered to "Attachment to the
judgment in prior instance".
No. 1 Object of the appeal
1. The judgment in prior instance shall be rescinded.
2. The Appellee shall pay to the Appellant 134,372,126 yen and the amount accrued on
the portion of 10,000,000 yen at the rate of 5% per annum for the period from April 2,
1

2019 until the completion of the payment and the amount accrued on the portion of
124,372,126 yen at the rate of 3% per annum for the period from November 12, 2021
until the completion of the payment (the Appellant expanded the claim forcompensation for damages as stated above in this trial from the claim made in the priorinstance for 10,000,000 yen and the amount accrued thereon at the rate of 5% per annum
for the period from April 2, 2019 until the completion of the payment).
3. The Appellee shall bear the court costs for both the first and second instances.
4. Declaration of provisional execution
No. 2 Outline of the caseIn this case, the Appellant, who is a patentee of the patent rights of Patents 1 and 2(hereinafter collectively referred to as the "Patents") for inventions that are both titled"Vehicle guidance system" (hereinafter the patent rights related to Patent 1 are referred
to as "Patent Right 1" and the patent rights related to Patent 2 are referred to as "Patent
Right 2"), alleged that Appellee's systems 1 through 3 that are used by the Appellee
infringe Patent Right 1 and Appellee's system 4 infringes Patent Rights 1 and 2. Basedon these allegations, the Appellant demanded as a claim for compensation for damages
due to tort based on Article 709 of the Civil Code and Article 102, paragraph (3) of the
Patent Act or as a claim for return of unjust enrichment based on Article 703 of the Civil
Code that the Appellee pay 10,000,000 yen and delay damages accrued thereon at therate of 5% per annum as prescribed by the Civil Code before the amendment by Act No.
44 of 2017 (hereinafter referred to as the "Civil Code before Amendment") for theperiod from April 2, 2019 (the day following the day on which the complaint wasserved), which is the day after the tort and after the claim was made, until thecompletion of the payment.
The judgment in prior instance determined that the Appellee's systems are notincluded in the technical scope of the Patents and dismissed the Appellant's claims, and
the Appellant filed an appeal. In addition, the Appellant expanded its claim against theAppellee based on the tort to demand that the Appellee pay 134, 372,126 yen and delay
damage accrued on the portion of 10,000,000 yen at the rate of 5% per annum asprescribed by the Civil Code before Amendment for the period from April 2, 2019 until
the completion of the payment and delay damages accrued on the portion of
124,372,126 yen at the rate of 3% per annum as prescribed by the Civil Code for theperiod from November 12, 2021 (the day following the day on which a written petition
to change the appeal was served) until the completion of the payment.
1. Basic facts (facts not disputed between the parties and facts that are easily foundbased on the evidence mentioned below and the entire import of oral arguments;2

hereinafter documentary evidence for which the indication of branch numbers isomitted includes branch numbers)
They are as stated in the section from page 2, line 13 through page 6, line 17 in the
judgment in prior instance and therefore they are cited, except for the following
corrections.
(1) The section from page 2, line 13 through page 3, line 2 in the judgment in priorinstance is altered as follows:"(1) The Patents
A. Non-party P (hereinafter referred to as "P") filed a patent application for an invention
titled "Vehicle guidance system" (Patent Application No. 2004-300749; hereinafterreferred to as the "Parent Application" and descriptions and drawings related to the
Parent Application are referred to as the "Parent Application's Descriptions") on
September 13, 2004 (hereinafter referred to as the "Original Application Date"), andsubsequently, made a divisional application as stated in Attachment 1. (Exhibit Ko 12,
and Exhibits Otsu 40 and 41)
B. In the divisional application mentioned in A. above, P made a divisional application
for part of Patent Application No. 2013-24483, which falls under the third generation,
as Patent Application No. 2014-89069 on April 23, 2014, and it was registered as Patent
No. 5769141 (hereinafter referred to as "Patent 2"; the number of claims is 2;
descriptions and drawings related to Patent 2 are collectively referred to as "Description2") on July 3, 2015. Concerning Patent Right 2, a transfer of the patent right was
registered for the Appellant on March 14, 2018, as an acceptance date, caused by thetransfer of Patent Right 2 due to specified succession. (Exhibits Ko 3 and 4, and Exhibit
Otsu 41)
C. After P made a divisional application (the fifth generation) for part of theaforementioned Patent Application No. 2014-89069 as Patent Application No. 2014243621 on December 2, 2014, P made another divisional application (the sixth
generation) for part of Patent Application No. 2014-243621 as Patent Application No.
2015-98590 (hereinafter referred to as "Patent 1 Parent Application") on May 13, 2015.
Furthermore, P made another divisional application for part of Patent Application No.
2015-98590 as Patent Application No. 2016-75107 on April 4, 2016, and the patent was
registered as Patent No. 6159845 on June 16, 2017 (hereinafter referred to as "Patent1"; the number of claims is 2; descriptions and drawings related to Patent 1 arecollectively referred to as "Description 1" and Descriptions 1 and 2 are collectively
referred to as the "Descriptions"; in cases of indicating a paragraph or drawing in the
Descriptions, it refers to paragraphs or drawings of both Descriptions 1 and 2 unless3

otherwise mentioned.). Concerning Patent Right 1, a transfer of the patent right was
registered for the Appellant on March 14, 2018, as an acceptance date, caused by thetransfer of Patent Right 1 due to specified succession. (Exhibits Ko 1, 2, 15, and 16,
and Exhibits Otsu 1, 8, 46, and 47)
D. Concerning Patent 1 Parent Application, a notice of grounds for refusal dated March
14, 2016 was given on the grounds of a breach of requirements for division, etc. andthe application was refused as of September 28, 2016. The refusal became final andbinding. (Exhibits Otsu 16 and 42)"(2) The term "A1 through K2" in page 4, line 26 of the judgment in prior instance isaltered to "A2 through K2".
(3) The term "closed space" in page 6, line 1 of the judgment in prior instance is alteredto "closed zone".
(4) The following phrase is added after the end of page 6, line 17 of the judgment inprior instance.
"(5) Whether the Appellee's systems fulfill the constituent features of the Inventions
The Appellee's systems fulfill Constituent Features E1, E2, G1, G2, H1, and H2 of theInventions."
2. Issues(1) Whether the Appellee's systems belong to the technical scope of Inventions 1-1 and
1-2 (hereinafter collectively referred to as "Invention 1") and whether Appellee's system
4 belongs to the technical scope of Inventions 2-1 and 2-2 (hereinafter collectively
referred to as "Invention 2") (Issue 1)
A. Whether the statements of Constituent Features A1 and A2 "a system to guide avehicle" and Constituent Features J1 and K2 "a vehicle guidance system" are fulfilled(Issue 1-A)
B. Whether Constituent Features B1, C1, D1, B2, C2, and D2 that are related to thepositional relationship between "first detection means" and "first bar," and"communication means" are fulfilled (Issue 1-B)
C. Whether the statement of Constituent Features F1 and F2 "guiding means to guide avehicle to the second lane" is fulfilled (Issue 1-C)
D. Whether Constituent Features I1, K1, J2, and L2 related to the structure to "lower abar" and to open "the first bar" are fulfilled (Issue 1-D)
E. Whether the statement of Constituent Feature I2 "to form a closed zone between thesecond bar and the fourth bar" is fulfilled (Issue 1-E)
(2) Whether there are Grounds for Invalidation 1 (breach of the clarity requirements
related to the first detection means, the first bar, and communication means, etc. of the4Inventions) (Issue 2)(3) Whether there are Grounds for Invalidation 2 (lack of an inventive step of Inventions
based on Exhibit Otsu 35 Invention) (Issue 3)(4) Whether there are Grounds for Invalidation 3 (on the premise of a breach of
requirements for division of Patent 1 Parent Application, lack of novelty and breach of
support requirements of Invention 1 based on publications of Exhibit Otsu 45 or Exhibit
Ko 12) (Issue 4)(5) Whether there are Grounds for Invalidation 4 (breach of support requirements
related to the timing to open bars concerning Invention 2) (Issue 5)(6) Occurrence of damages or unjust enrichment and the amount thereof (Issue 6)(omitted)
No. 3 Judgment of this court
1. Inventions(1) Statements in the Descriptions (Exhibits Ko 2 and 4)
There are the following statements in the Descriptions.
[Technical field][0001]The present invention is related to a vehicle guidance system, and more specifically,
it is related to a vehicle guidance system to guide a vehicle safely that is used at ETC
vehicle gates, which is installed at toll road gates.
[Background art]
[0002]In recent years, ETC systems (Electronic Toll Collection Systems: non-stop toll
payment systems) have been installed at toll gates on toll roads. As shown in FIG. 1,
the ETC system automatically settles tolls using wireless communication between
roadside antennas 3 and 5 installed at the toll gate and the vehicle-mounted device 20
mounted on vehicle 14 so that vehicle 14 can pass through the toll gate without
stopping. ...
[Problems to be solved by the invention][0006]
However, at present, as not all vehicles are ETC system-compatible vehicles, there
are lanes labeled "ETC only," which are exclusive to ETC vehicles, lanes labeled "ETCGeneral," where both ETC vehicles and general vehicles can pass through, and lanes
labeled "General," where the ETC system cannot be used, in a mixed man ner at toll
5

gates on toll roads. For this reason, there may be cases where a general vehicle enters
the ETC vehicle exclusive lane accidentally. In these application documents, "ETC
vehicle" means a vehicle from which tolls can be collected using the ETC s ystem, and"general vehicle" means a vehicle that cannot use the ETC system.
[0007]
Furthermore, even if a vehicle is an ETC vehicle, the vehicle-mounted device may
not communicate normally with a roadside antenna. For example, there are cases wherean ETC card is not inserted into the vehicle-mounted device, is incompletely inserted,or is inserted immediately before passing through a toll gate, among others.
[0008]
In such cases, the open-close bar lowers and the vehicle cannot go through the gate.
Therefore, it is necessary to stop the vehicle and call an attendant using the intercom.
As a result, traffic congestion at the toll gate is facilitated and the ETC's original
purpose is not met. In addition, if the open-close bar lowers and the vehicle is stopped,
the driver of the vehicle may attempt to back out of the lane and may cause the vehicle
to collide with a following vehicle, which is very dangerous.
[Means of solving problems][0010]
Therefore, the present invention aims to provide a vehicle guidance system forsafely guiding a vehicle even in cases where a general vehicle enters an ETC vehicle
gate or where the ETC system does not operate normally for an ETC vehicle(communication is impossible or unavailable between roadside antenna and veh iclemounted device).
[0011]In addition, the present invention aims to provide a safe vehicle guidance system,
for example, that does not allow a vehicle traveling in the wrong direction or that may
be able to avoid collision between a preceding vehicle and a following vehicle, in a
vehicle guidance system using the ETC system.
[0012] (Description 1)
In view of the objectives above, the vehicle guidance system related to the present
invention is a vehicle guidance system used for an interchange having an ETC vehicle
lane at a toll gate between a general road and a toll road, and it is characterized byinstalling a means where a vehicle can exit the ETC vehicle lane if communication
becomes impossible or unavailable between a roadside antenna and a vehicle-mounted
device (note of the judgment: the expression "と間で" is found to be an error and it
should be "との間で").
6

[0012] (Description 2)
In view of the objectives above, the vehicle guidance system related to the present
invention is a system installed on a toll gate, service area, or parking area on a toll roadto guide a vehicle entering and leaving an ETC vehicle gate; which is characterized bybeing equipped with the following: the first detection means that detects a vehicle
entering and leaving the toll gate, service area, or parking area on the toll road; the firstbar that is installed corresponding to the first detection means; a communication means
to communicate data with a vehicle-mounted ETC device that is mounted on a vehicle;
a determining means to determine whether the toll can be collected using the ETC
system by recognizing data received by the communication means; and a guiding means,
based on the results determined by the determining means, to guide a vehicle fromwhich toll can be collected using the ETC system to the first lane leading to the routeto enter the toll gate, service area, or parking area on the toll road or to leave from thetoll gate, service area, or parking area on the toll road through the ETC gate, and to
guide a vehicle from which the toll cannot be collected using the ETC system to thesecond lane leading to the route to go back to the entrance of the ETC vehicle gate or
to the general vehicle gate, in which the guiding means includes the second bar installedon the first lane and the third bar installed on the second lane and is equipped with thesecond detection means to detect a vehicle that passes through the second bar and thethird detection means to detect a vehicle that passes through the third bar, and in which
the fourth bar and the fourth detection means to detect a vehicle are installed in aposition where the vehicle enters the toll gate, service area, or parking area on the tollroad through the ETC gate or where the vehicle leaves from the toll gate, service area,
or parking area on the toll road and thereby, a closed zone is formed between the secondbar and the fourth bar, with which if an entrance of a vehicle is detected by the firstdetection means, the first bar lowers after the vehicle passes through it and if the passingof a vehicle is detected by the second detection means, the second bar lowers after thevehicle passes through it, and if the passing of a vehicle is detected by the fourth
detection means, the fourth bar lowers after the vehicle passes through it.
[0013]
Further, in the vehicle guidance system described above, the means capable ofexiting from the ETC vehicle lane can be determined to be a lane that branches off fromthe ETC vehicle lane so that the vehicle can re-enter the toll gate or a lane leading to
the general vehicle lane.
[0014] (Description 1 only)
Furthermore, in the vehicle guidance system described above, the roadside antenna
7may have an antenna in front of the gate for determining whether wirelesscommunication is possible with the vehicle-mounted device, and an ETC antenna thattransmits and receives entrance information and toll information.
[0015]
Furthermore, in the vehicle guidance system described above, the system may
include bars, the first vehicle sensor, an antenna in front of the gate, the second vehicle
sensor, a guiding means, the third vehicle sensor, the fourth vehicle sensor, and ETC
gate, to enable the following: when the first vehicle sensor detects the entry of a vehicle,
it closes the bar to keep a specified interval with a following vehicle; when the second
vehicle sensor detects the vehicle that entered, it confirms that the vehicle passes theantenna in front of the gate, determines whether it can be communicated with or not on
this timing, and when the third or fourth vehicle sensor detects the vehicle that entered,it may open the bar for the following vehicle.
[0016]
Furthermore, in the vehicle guidance system described above, the system may haveat least one guiding device to enable the following: when it determines that the antennain front of the gate cannot communicate with the vehicle-mounted device, it may guidethe vehicle to the specified destination using the guiding device based on thedetermination.
[0017]
Furthermore, the vehicle guidance system related to the present invention is asystem to guide a vehicle equipped with a vehicle-mounted ETC device that passes
through the ETC vehicle gate when entering and leaving between a general road or atoll road and it is characterized by the following: it is equipped with a detection means
to detect a vehicle that enters or exits between a general road and toll road ; acommunication means to communicate data with a vehicle-mounted ETC device that ismounted on a vehicle; a determining means to determine whether the toll can becollected using the ETC system by recognizing data received by the communicationmeans; and a guiding means, based on the results determined by the determining means,to guide a vehicle from which tolls can be collected using the ETC system to a route toenter from a general road to a toll road or to go out from a toll road to a general roadthrough the ETC gate and a vehicle from which the toll cannot be collected using the
ETC system to a route to go back to the entrance of the gate again or to a general vehicle
gate; and if the entry of a vehicle is detected by the detection means, a bar lowers toprevent the vehicle that entered from backing out and a following vehicle from entering.
[0023]
8

Furthermore, the vehicle guidance method related to the present invention is avehicle guidance method that is used for an interchange with an ETC vehicle lane at atoll gate between a general road and a toll road. The interchange is equipped with a laneto allow a vehicle to exit from the ETC vehicle lane if communication becomes
impossible or unavailable between a roadside antenna and a vehicle-mounted device(note of the judgment: the expression "と間で" is found to be an error and it should be"との間で"). The lane to allow a vehicle to exit from the ETC vehicle lane is a lanethat allows the vehicle to re-enter the toll gate or a lane that guides the vehicle to a
general vehicle lane. The vehicle guidance method includes the following steps: when
the first vehicle sensor detects the entry of a vehicle, it closes the first bar to keep a
specified interval with a following vehicle, and when the second vehicle sensor detects
the vehicle that entered, it confirms that the vehicle passes through an antenna in fro ntof the gate and determines whether communication is possible, impossible, or
unavailable on this timing; if it is determined that communication is possible, it opens
the second gate, guides the vehicle to the ETC gate and the third vehicle sensor, andsends the vehicle to the desired road; if it is determined that communication is
impossible or unavailable, it opens the third gate, guides the vehicle to the fourthvehicle sensor, and sends the vehicle to the re-entrance lane; and when the third or
fourth vehicle sensor detects the vehicle that entered, it opens the first bar for thefollowing vehicle.
[0024]
Furthermore, the vehicle guidance method related to the present invention is avehicle guidance method that is used for an interchange with an ETC vehicle lane at atoll gate between a general road and a toll road. The interchange is equipped with a
guiding means including the first bar, the first vehicle sensor, an antenna in front of thegate, the second vehicle sensor, and bars to form a closed zone. The guiding means has
the following: the first closed zone sensor in the ETC vehicle lane beyond the branching
off point; the third vehicle sensor, ETC gate, and the second bar (note of the judgment:
the expression "遮断機及" is found to be an error and it should be "遮断機") in thefirst closed zone of the ETC vehicle lane beyond the branching off point; the fourthvehicle sensor beyond the first closed zone; the second closed zone sensor on the exit
lane beyond the branching off point; the fifth vehicle sensor and the third bar in thesecond closed zone of the exit lane; and the sixth vehicle sensor beyond the second
closed zone. The vehicle guidance method includes the following steps: when the firstvehicle sensor detects the entry of a vehicle, it closes the first bar and divides the spacewith a following vehicle; when the second vehicle sensor detects the vehicle that9

entered, it confirms that the vehicle passes the antenna in front of the gate anddetermines whether communication is possible, impossible, or unavailable on thistiming; when the vehicle sensor in the closed zone detects the vehicle that entered, itcloses a bar of the guiding means; and when the vehicle sensor installed beyond theclosed zone detects a vehicle passing through, it closes a bar at the exit from the closed
zone; and thereby it prevents another (wrong) vehicle from entering in the wrong
direction from the exit of the closed zone and, even if another wrong vehicle enters in
the wrong direction by passing the vehicle that goes out from the closed zone, when theclosed zone sensor determines that there is a vehicle in the closed zone, it takes actions,such as reporting it to the monitoring center, etc., and when the closed zone sensor
determines that there is no vehicle in the closed zone, it opens the first bar for thefollowing vehicle.
[Effects of the Invention][0027]
According to the present invention, even in cases where a general vehicle enters an
ETC vehicle gate or where the ETC system does not operate normally for an ETC
vehicle, it can provide a vehicle guidance system for safely guiding the vehicle.
[0028]In addition, according to the present invention, the vehicle guidance system using
the ETC system can provide a safe vehicle guidance system that does not allow, forexample, a vehicle traveling in the wrong direction, and that may be able to avoid
collision between a preceding vehicle and a following vehicle.
[Best embodiment of the invention][0032]
A vehicle travels from general road 8 towards toll road 7 and toll gate 9 is installed
between them. In the past, there were three lanes at toll gate 9. Lane (A → D) is for
ETC vehicles and lanes B and C are for general vehicles. In the present embodiment,lane E that newly branches off from A (it is also called a "re-entrance lane") is prepared.
Here, route A → D is a route where a vehicle passes through ETC gate 5 and travels totoll road 7 and route A → E is a lane for re-entering toll gate 9 (note of the judgment:
the expression "再進入するたのための" is found to be an error and it should be "再進入するための").
[0033]
Lane A → D has roadside antennas 3 and 5 and they perform wirelesscommunication with the vehicle-mounted device in principle. FIG. 4 indicates thedetails of lanes A → D and A → E. Further explanation is given below based thereon.
10A vehicle enters from a general road 8, passes through bar 1 that was opened in advance,
is detected by vehicle sensor 2a, passes by roadside antenna 3 (antenna in front of thegate), which determines whether wireless communication is possible, and is detectedby vehicle sensor 2b.
[0034]
When wireless communication is determined to be possible with antenna 3 in frontof the gate, guiding device 4-1 opens while guiding device 4-2 remains closed. A vehicle
passes by vehicle sensor 2c, receives entrance information from roadside antenna 5(ETC gate) to the vehicle-mounted device, and thereby, the vehicle can travel to tollroad 7.
[0035]
If wireless communication is determined to be impossible or unavailable withantenna 3 in front of the gate, guiding device 4-2 opens while guiding device 4-1
remains closed. A vehicle travels to lane E, passes by vehicle sensor 2d, and then returns
to the point to select any of lanes A, B, or C. In the past, there was no re-entrance lane
E. Therefore, if the open-close bar 4-1 lowered and the vehicle could not move, it wasnecessary to stop the vehicle and call an attendant using the intercom, etc. As a result,traffic congestion at roll gate 9 is facilitated and the ETC's original purpose is not met.
In addition, if the open-close bar 4-1 lowers and the vehicle is stopped, the driver of thevehicle may attempt to back out of lane A and may cause the vehicle to collide with afollowing vehicle, which is very dangerous. However, if re-entrance lane E is installed,
said failure and danger can be resolved systematically.
[0037]
Looking at FIG. 4 again, antenna 3 in front of the gate has a communication means
to communicate data with a vehicle-mounted ETC device that is mounted on a vehicle
and a determining means that recognizes received data and determines whether the toll
can be collected using the ETC system.
[0038]
Concerning guiding devices 4-1 and 4-2, there is a method, for example, to form
them into bars, and to open the bar on the route D side while closing the bar on the routeE side when guiding a vehicle to route D, and to open the bar on the route E side while
closing the bar on the route D side when guiding the vehicle to route E. In addition,
there is a method to form them into display panels and to display "Passable,""Impassable," etc. for each route, or to display signs and pictures, such as "↑" (an arrow)for a passable route and "X" (cross mark) for an impassable route, etc. In addition, thereasons to be guided to route E, such as "ETC unreadable," etc., may be displayed.
11

Furthermore, the bar-type and display panel-type may be used together.
[0040]
Focusing on the functions of multiple vehicle sensors 2a, 2b, 2c, and 2d as shownin FIG. 4, the guiding method of vehicle guidance systems in FIG. 3 and FIG. 4 issimply explained below using a flow chart indicated in FIG. 5. When first vehicle sensor
2a detects the entry of a vehicle (step S02), bar 1 is closed to make a specified intervalwith a following vehicle (step S03). Bar 1 (omitted) does not open unless vehicle sensor
2c or 2d detects a vehicle. Therefore, it can prevent a collision between a preceding
vehicle and a following vehicle and a preceding vehicle from traveling in lane A in thewrong direction. When the second vehicle sensor 2b detects the vehicle that entered(step S05), it confirms that the vehicle passes through antenna 3 in front of the gate anddetermines whether communication is possible, impossible, or unavailable on thistiming (steps S06 and S07). It defines the determining time in order to distinguish thestatus when the vehicle has not passed from the status when wireless communication is
not performed although the vehicle passed through (note of the judgment: theexpression "車両の通過した" is found to be an error and it should be "車両が通過した").
[0041]
If communication is possible, guiding device 4-1 opens and the vehicle is guided tolane D and travels to toll road 7 (step S08). On the contrary, if communication is
impossible or unavailable, guiding device 4-2 opens and the vehicle is guided to lane E
and returns to the place to select any of lanes A, B, or C again (step S13). Here,"communication is impossible or unavailable" includes cases where a general vehicle
enters by mistake and cases where an ETC vehicle did not succeed in wirelesscommunication for any reason.
[0042]
When the third vehicle sensor 2c detects the vehicle that entered (step S09), as thevehicle is about to leave from lane A → D, bar 1 opens (step S10), and in the same way,
when the fourth vehicle sensor 2d detects the vehicle that entered (step S14), as thevehicle is about to leave from lane A → E, bar 1 opens (step S15). Based on these steps,
when a vehicle enters the zone of vehicle sensors 2c and 2d from bar 1, this zone
becomes a sort of closed area and the presence of only one vehicle is allowed. Therefore,
in this closed area, there is no collision between a preceding vehicle and a following
vehicle. As long as the ETC system operates normally, the time when bar 1 closes is thetime when a vehicle passes through from bar 1 to ETC gate 5, which is only a few
seconds. Therefore, the original purpose of the ETC system, non-stop travel, is
12substantially secured.
[0046]
Based on this embodiment, the following effects can be obtained.
(1) This embodiment can be achieved only by newly preparing re-entrance lane E
without adding drastic changes to the conventional interchange.
(2) Even if ETC wireless communication is impossible or unavailable after a vehicle
enters an ETC lane, no traffic congestion occurs since re-entrance lane E is prepared.
(3) When vehicle sensor 2a detects a vehicle that entered, it closes bar 1 and will notopen it until vehicle sensors 2c and 2d subsequently detect the vehicle that entered.
Therefore, it can prevent the vehicle that entered from traveling in the wrong direction
illegally.
(4) In addition, only one vehicle is allowed to be present between bar 1 and vehicle
sensors 2c and 2d (note of the judgment: the expression "１台限定" is found to be anerror and it should be "１台に限定") and, therefore, it can avoid a collision accident
between the vehicle that entered and a following vehicle.
[0054][Other applications](An interchange with enhanced function to prevent entry from the wrong direction)
However, in the embodiment explained in FIG. 4, it has a problem that it cannot
prevent a wrong vehicle intending to evade payment of the toll, etc. from entering theETC vehicle lane in the wrong direction from the exit of the ETC vehicle lane or theexit of the exit lane. In order to solve this problem, the embodiment explained in thefollowing is a means to prevent driving in the wrong way by a combination of bars andvehicle sensors in the same way for lane D and lane E respectively.
[0055]
FIG. 9 is an example of modification of FIG. 4 and is a figure indicating a structureof an interchange where the function to prevent entrance from the wrong direction isenhanced. FIG. 10 is a flowchart explaining the guiding method of the vehicle guidancesystem in FIG. 9.
[0056]
Comparing the structure of the interchange in FIG. 9 with that in FIG. 4, in addition
to the closed zone (the zone between bar 1 and bars 4-1 and 4-2) explained in FIG. 4,
closed zone F (the zone between bar 1-2 and bar 4-1) and closed zone G (the zone
between bar 1-3 and bar 4-2) are formed. As indicated in FIG. 9, in order to form closed
zone F, bar 1-2, vehicle sensor 2e, and closed zone sensor 16 are newly installed and,in order to form closed zone G, bar 1-3, vehicle sensor 2f, and closed zone sensor 17
13are newly installed, and furthermore, closed zone sensor 18 is installed.
[0057]
Comparing the flow in FIG. 10 with that in FIG. 8, the difference is substantiallyseen in the point that steps S50 through S54, S56, and S59 through S62 were newly
added to FIG. 10.
[0058]
Explaining the embodiment simply by referring to FIG. 9 and FIG. 10, in cases
where a vehicle enters lane D, when vehicle sensor 2c detects a vehicle (step S49), it
closes bar 4-1 and opens bar 1-2 (step S50), and then, it keeps bar 4-1 closed until
antenna 3 in front of the gate subsequently recognizes and determines a following
vehicle (step S48). When vehicle sensor 2e detects a vehicle (step S52), it closes bar 1 2 (step S53) and prevents a wrong vehicle from entering in the wrong direction fromthe exit of lane D. When vehicle zone sensor 16 confirms that there is no vehicle inclosed zone F (step S54), it opens bar 1 (step S55) and the following vehicle can enter.
Even if another wrong vehicle enters from the wrong direction by passing the vehicle
that exits from closed zone F, when closed zone sensor 16 determines that there is avehicle in closed zone F (step S54), it takes actions, such as reporting it to themonitoring center, etc., and it prevents the wrong vehicle from entering further.
[0059]The same applies to lane E. In cases where a vehicle enters lane E, when vehicle
sensor 2d detects a vehicle (step S58), it closes bar 4-2 and opens bar 1-3 (step S59),
and then, it keeps bar 4-2 closed until antenna 3 in front of the gate subsequently
recognizes and determines a following vehicle (step S57). When vehicle sensor 2f
detects a vehicle (step S60), it closes bar 1-3 (step S61) and prevents a wrong vehicle
from entering in the wrong direction from the exit of lane E. When vehicle zone sensor
17 confirms that there is no vehicle in closed zone G (step S62), it opens bar 1 (stepS63) and the following vehicle can enter. Even if another wrong vehicle enters from thewrong direction by passing the vehicle that exits from closed zone F, when closed zone
sensor 17 determines that there is a vehicle in closed zone G (step S62), it takes actions,such as reporting it to the monitoring center, etc., and it prevents the wrong vehicle
from entering further.
[0070]
Embodiments of the vehicle guidance system related to the present invention are
indicated above. Please note that they are only examples, and the present invention is
not limited thereto. Any changes and improvements that can be made by a person skilledin the art are within the technical scope of the present invention. The technical scope of
14

the present invention is determined based on the statements of the attached claims.
[Concise explanations of figures][0071][FIG.3] It shows the structure of a vehicle guidance system using an ETC system used
at an entrance toll gate related to the embodiment of the present invention.
[FIG. 4] It is a partially enlarged figure of the vehicle guidance system in FIG. 3.
[FIG. 6] It shows the structure of a vehicle guidance system using an ETC system used
at an exit toll gate related to the embodiment of the present invention.
[FIG. 7] It is an example of modification of FIG 6.
[FIG. 9] It is an example of modification of FIG. 4 and is a figure that shows the
structure of an interchange with an enhanced function to prevent a vehicle from enteringfrom the wrong direction[FIG. 11] It is an application example of the present invention and a figure showing anapplication example for a smart interchange.
[FIG. 3]Toll roadToll gate

General road

15

[FIG. 4][FIG. 6]

General roadToll gate

Toll road

16

[FIG. 7]

General road

Toll
gate

Toll road[FIG. 9]Closed zone sensor

Closed zone sensor
Closed zone sensor

Closed zone F

Closed zone G

17

[FIG. 11]
General road

Parking area/Service
area

Toll road(2) Problems and functions and effects of the Inventions
According to the structure expressed in the claims of the Patents and the statementsin the Descriptions in (1) above, the Inventions are related to a vehicle guidance system
to guide vehicles safely that is used at an ETC vehicle gate, which is installed at a tollroad gate (paragraph [0001] of the Descriptions); there was the problem that when avehicle from which tolls cannot be collected using the ETC system enters an ETC
vehicle lane, the open-close bar lowers to make it impossible for the vehicle to move,and it becomes necessary to call an attendant using the intercom, which may facilitate
traffic congestion, or if the driver of the vehicle attempts to back out, this may cause acollision with a following vehicle and is dangerous (paragraphs [0006] through [0008]
in the Descriptions); and, therefore, the Inventions set the following as their problem
and functions and effects by installing multiple bars, detection means, andcommunication means: [i] providing a vehicle guidance system to guide a vehicle safely
even if a general vehicle enters an ETC vehicle gate or the ETC system does not operate
normally with an ETC vehicle (hereinafter referred to as "Function and Effect 1") and[ii] providing a safe vehicle guidance system that does not allow a vehicle traveling in
the wrong direction or it can avoid a collision between a preceding vehicle and afollowing vehicle by lowering the bars appropriately after a vehicle passes through themin a vehicle guidance system using the ETC system (hereinafter referred to as "Function
and Effect 2") (paragraphs [0017], [0027], [0028], and [0058] in the Description s). In
addition, the "vehicle traveling in the wrong direction" in [ii] above includes a vehicle
intending to evade payment of the toll, etc. that enters an ETC vehicle lane in the wrong
direction from the exit of an ETC vehicle lane or the exit of an exit lane, in addition to18

a vehicle that entered the regular route but is trying to back out (paragraphs [0040] and[0054] in the Descriptions).
2. Issue 1 (Whether the Appellee's systems belong to the technical scope of Invention 1
and whether the Appellee's system 4 belongs to the technical scope of Invention 2)(1) Issue 1-A (Whether the statements of Constituent Features A1 and A2 "a system toguide a vehicle" and Constituent Features J1 and K2 "a vehicle guidance system" arefulfilled)
A. All of the Appellee's systems listed in the Attachment to the judgment of priorinstance "List of the Appellee's systems" are to guide a vehicle that attempts to passthrough an ETC vehicle gate, if wireless communication is possible, by guiding thevehicle to travel to Sano SA, a general road, or a data obtaining zone (lane 'e') by
opening start controllers [i] and [iv] [open-close bars] (steps S104 and S203), and if
wireless communication is impossible or unavailable, by guiding the vehicle to exit
route 'd' by opening start controllers [i] and [v] [open-close bars] through artificial
manipulation (steps S106 and S205) and, therefore, they fall under "a system to guidea vehicle" and "a vehicle guidance system." Then, the Appellee's systems fulfill thestatements of Constituent Features A1 and A2 "a system to guide a vehicle" andConstituent Features J1 and K2 "a vehicle guidance system."
B. The Appellee alleged that the Appellee's systems are substantially toll collection
systems and therefore, they do not fall under the category of "a system to guide avehicle" and "a vehicle guidance system." However, toll collection and vehicle
guidance are compatible functions and it cannot be said that the Appellee's systems do
not fall under the category of a vehicle guidance system based on the fact that theAppellee's systems are toll collection systems. Therefore, the aforementioned
allegations of the Appellee are groundless.
C. In addition, the Appellee's systems are systems to guide a vehicle that enters andexits the Tohoku Expressway, which is a toll road, from an ETC vehicle gate that is
installed in Sano SA. Therefore, they fulfill Constituent Features A1, A2, J1, and K2.
(2) Issue 1-B (Whether the Constituent Features B1, C1, D1, B2, C2, and D2 related tothe positional relationship between "first detection means" and "first bar," and"communication means" are fulfilled)
A. (A) The statements in the claims of the Inventions are as stated in the corresponding
part in the patent gazette (Patent No. 6159845 and Patent No. 5769141) as shown in the
Attachment to the judgment in prior instance. Concerning the "first detection means,"
there are the following statements only: it detects a vehicle that enters or exits a tollgate, service area, or parking area on a toll road; the "first bar" is installed by19

corresponding to the "first detection means"; and if the entry of a vehicle is detected bythe "first detection means," it lowers the first bar after the vehicle passes through it.
Other than the above, there is no statement to identify the positional relationship wherethe "first bar," "first detection means," and "communication means" are installed.
Therefore, whether the constituent features are fulfilled is not determined by the
positional relationship where each piece is installed.
(B) Looking at the Appellee's systems based on the above, vehicle sensor [ii] detects avehicle passing through in the Appellee's systems (steps S105 and S204) and detects avehicle that enters and exits Sano SA Smart interchange, which is a "service area" where
the Appellee's systems are installed. Therefore, it falls under the "first detection means."
When vehicle sensor [ii] detects a vehicle passing through, start controller [i] [open close bar] closes (steps S105 and S204) and start controller [i] [open-close bar] falls
under the "first bar" that is installed by corresponding to the vehicle sensor [ii], whichis the "first detection means." In addition, roadside wireless device [iii] that performs
wireless communication with a vehicle-mounted ETC device that is mounted on avehicle (steps S103 and S202) falls under a "communication means" and it determines
whether it falls under the case where wireless communication is possible or where it is
impossible or unavailable based on the data that roadside wireless device [iii] received
from a vehicle-mounted ETC device (steps S104, S106, S203, and S205), which means
whether tolls can be collected using the ETC system is determined.
Then, the Appellee's systems fulfill Constituent Features B1, C1, D1, B2, C2, and
D2.
B. (A) The Appellee alleged that, in Inventions, a "communication means" should beplaced beyond the "first bar" and "first detection means," while in the Appellee'ssystems, roadside wireless device [iii] is placed in front of start controller [i] [open close bar] and performs wireless communication with the vehicle that is stopped before
start controller [i] [open-close bar], and therefore that the Appellee's systems fulfill
none of Constituent Features B1, C1, D1, B2, C2, and D2 of the Inventions.
(B) However, as stated in A. (B) above, in the claims of the Patents, the positional
relationship between the "communication means" and the "first bar" are not specified.
In addition, as stated in 1. (2) above, the Inventions show Function and Effect 1 (toprovide a vehicle guidance system for safely guiding a vehicle even if a general vehicle
enters an ETC vehicle gate or if an ETC system does not operate normally with an ETC
vehicle). If it is possible to guide a vehicle safely by determining whether tolls can becollected using the ETC system based on the data that a "communication means"
received from a vehicle-mounted ETC device and by working bars at an appropriate
20timing, Function and Effect 1 is presented. Concerning the timing when a"communication means" receives data from a vehicle-mounted ETC device, Function
and Effect 1 can be presented in both cases before and after a vehicle passes the firstbar.
In addition, looking at Function and Effect 2 (in a vehicle guidance system using
the ETC system, to provide a safe vehicle guidance system where a vehicle traveling in
the wrong direction is not allowed to enter or where a collision between a preceding
vehicle and a following vehicle can be avoided), the term "a vehicle traveling in thewrong direction" as used in the Inventions includes a vehicle intending to evade
payment of tolls that enters an ETC vehicle lane in the wrong direction from the exit of
the ETC vehicle lane and the exit of an exit lane. It is obvious that there is no
relationship between preventing said "vehicle traveling in the wrong direction" fromtraveling in the wrong direction and the positional relationship of a "communicationmeans" and the "first bar." Irrespective of the position of a communication means, it ispossible to prevent a vehicle from traveling in the wrong direction through driving
backwards by lowering the first bar after the vehicle passes through the first bar.
It is true that the Descriptions contain an example with a structure where acommunication means (antenna 3 in front of the gate) is placed beyond the first bar (bar1) and the first detection means (vehicle sensor 2a) ([FIG. 4]); however, it is only anembodiment and, in light of the above, there is no grounds to construe the Inventions
by only limiting to the aforementioned structure.
Therefore, in the relationship of the problems and functions and effects ofInventions, it cannot be said that the positional relationship of a "communicationmeans" and the "first bar" is specified as alleged by the Appellee.
(C) In addition, the Appellee alleged that, in the Inventions, wireless communication is
performed with a vehicle that passed the first bar while it is still in a movement status,
while in the Appellee's systems, wireless communication is performed with a vehicle
that stops in front of start controller [i] [open-close bar], and therefore that it has astructure and functions different from those of the Inventions.
However, in the claims of the Patents, it is not specified whether a vehicle is in
movement or stops when performing wireless communication and there is a statementin paragraph [0042] of the Descriptions that "when a vehicle enters the zone of vehicle
sensors 2c and 2d from bar 1, this zone becomes a sort of closed area and the presenceof only one vehicle is allowed. Therefore, in this closed area, there is no collision
between a preceding vehicle and a following vehicle. As long as the ETC system
operates normally, the time when bar 1 closes is the time when a vehicle passes through21

from bar 1 to ETC gate 5, which is only a few seconds. Therefore, the original purposeof the ETC system, non-stop travel, is substantially secured." Therefore, in theInventions, in cases where a preceding vehicle exists, it is planned that a following
vehicle stops before the first bar. Then, concerning the Inventions, it cannot be
construed in a limited manner that wireless communication is performed with thevehicle that passed the first bar while it is still in a moving status.
Therefore, it is not denied that the Appellee's systems fulfill Constituent Features
B1, C1, D1, B2, C2, and D2 of the Inventions based on the fact that the vehicle isstopped when performing wireless communication.
(D) Based on the above, the aforementioned allegations of the Appellee cannot be
accepted.
(3) Issue 1-C (Whether the statement of Constituent Features F1 and F2 "guiding means
to guide a vehicle to the second lane" is fulfilled)
A. (A) In the Appellee's systems, in cases where "wireless communication is impossibleor unavailable" with a vehicle-mounted ETC device, in other words, in cases where
tolls cannot be collected using the ETC system, it is stated that "the driver is informedof that fact in sound via intercom, start controllers [i] and [v] [open-close bars] in frontof lane 'd' are opened through artificial manipulation, and the vehicle exits into exit
route 'd'" (steps S106 and S205). Exit route 'd' in the Appellee's systems falls underConstituent Features F1 and F2, "a route to go back to the entrance of the ETC vehicle
gate." In addition, the Appellee's systems guide vehicles from which tolls cannot becollected using the ETC system to lane 'd' by opening start controllers [i] and [v] [openclose bars] in front of lane 'd' through artificial manipulation. Therefore, they are
deemed to have a "guiding means to guide a vehicle to the second lane" that leads to "aroute to go back to the entrance of the ETC vehicle gate" as defined in Constituent
Features F1 and F2. Then, the Appellee's systems fulfill the statement of Constituent
Features F1 and F2, "guiding means to guide a vehicle to the second lane."(B) In the Appellee's systems, if wireless communication is possible based on the resultsof the determination of data received by roadside wireless device [iii], start controllers[i] and [iv] [open-close bars] are opened and the vehicle is guided to a lane to enter aservice area or a lane leading to a route to exit to a general road from a service area
(step S104), or to a data obtaining zone (lane 'e') (step S203). The data obtaining zone
(lane 'e') exists on the route to a service area and therefore, guidance to the dataobtaining zone (lane 'e') falls under guidance to the first lane leading to the route toenter a service area. In addition, as stated in (A) above, the Appellee's systems have a"guiding means to guide a vehicle to the second lane" that leads to "a route to go back22

to the entrance of the ETC vehicle gate" in cases where wireless communication is
impossible or unavailable.
Therefore, the Appellee's systems fulfill Constituent Features F1 and F2 of theInventions.
B. The Appellee alleged that, in the Appellee's systems, a vehicle is not guided
automatically to exit route 'd', but it requires the operation of an attendant and the ETC's
original objective is not achieved, and therefore that they do not fulfill the statement ofConstituent Features F1 and F2, "guiding means to guide a vehicle to the second lane."
However, looking at the statements in the claims of the Patents, there is no statementthat a "guiding means to guide a vehicle to the second lane" is an automatic guidance,
and in the Descriptions, there is also no statement to exclude involvement of an
attendant regarding "a guiding means." In addition, in the Appellee's systems, start
controllers [i] and [v] [open-close bars] are opened through artificial manipulation;
however, it is not required to have an attendant on the spot via the intercom and avehicle is not likely to back out of the lane since the vehicle can move forward in the
direction of the second lane. Therefore, it can solve the problems of the Inventions, "itbecome necessary to call an attendant using an intercom, which may facilitate traffic
congestion" and "if the driver of the vehicle attempts to back out, this may cause acollision with a following vehicle and is dangerous" and it can present the functions
and effects "to provide a vehicle guidance system to safely guide a vehicle" and "toprovide a safe vehicle guidance system where a collision between a preceding vehicle
and a following vehicle can be avoided." In addition, in the Inventions, it is also
assumed that a vehicle stops in front of the first bar, as explained in (2) B. (C) above.
Then, concerning a "guiding means to guide a vehicle to the second lane," there are
no grounds to construe this in a limited manner as alleged by the Appellee, and theaforementioned allegations of the Appellee cannot be accepted.
(4) Issue 1-D (Whether Constituent Features I1, K1, J2, and L2 related to the structure
to "lower a bar" and to open "the first bar" are fulfilled)
A. The Appellee's systems have a structure in which, when vehicle sensor [ii] detects
the passing of a vehicle, start controller [i] [open-close bar] closes, and when vehicle
sensor [vi] detects the passing of a vehicle, start controller [iv] [open-close bar] closes(steps S105 and S204); and when vehicle sensor [vii] detects the passing of a vehicle,
start controller [v] [open-close bar] closes (there is no dispute between the parties).
Vehicle sensor [ii] and start controller [i] [open-close bar] fall under "the first detectionmeans" and "the first bar" respectively; vehicle sensor [vi] and start controller [iv][open-close bar] fall under "the second detection means" and "the second bar"23

respectively; and vehicle sensor [vii] and start controller [v] [open-close bar] fall under"the third detection means" and "the third bar" respectively; and therefore, theAppellee's systems fulfill Constituent Features I1, K1, J2, and L2.
B. The Appellee alleged on the grounds of the statement in paragraph [0042] of the
Descriptions that the Appellee's systems do not fulfill Constituent Features I1, K1, J2,
and L2 on the premise of the following interpretation: in the Inventions, in cases where
the passing of a vehicle is detected by the second detection means and where the passingof a vehicle is detected by the third detection means, the second or third bar is lowered
and the first bar is opened.
However, in the claims of the Patents, it is not specified to open the first bar in cases
where the passing of a vehicle is detected by the second detection means and where thepassing of a vehicle is detected by the third detection means.
In addition, paragraph [0042] of the Descriptions states that in cases where thepassing of a vehicle is detected by the second detection means and where the passingof a vehicle is detected by the third detection means, the first bar is opened, and thisstatement is related to one embodiment, and therefore, it cannot be regarded as a generalstandard immediately. Furthermore, it does not mean that the functions and effects of
the Inventions are not presented unless they have a structure that in cases where thepassing of a vehicle is detected by the second detection means and where the passingof a vehicle is detected by the third detection means, the first bar is opened.
Based on the above, the aforementioned allegations of the Appellee cannot be
accepted.
(5) Issue 1-E (Whether the statement of Constituent Feature I2 "to form a closed zone
between the second bar and the fourth bar" is fulfilled)
A. Start controllers [iv] and [ix] [open-close bars] of Appellee's system 4 fall under "thesecond bar" and "the fourth bar" in Invention 2 respectively and vehicle sensor [x] falls
under "the fourth detection means" in Invention 2. In addition, according to the evidence(Exhibits Ko 10 and 11), in Appellee's system 4, it is found that during the period fromwhen vehicle sensor [vi] detects the passing of a vehicle and start controller [iv] [open close bar] closes until the moment when start controller [ix] [open-close bar] opens
after the end of the second wireless communication with roadside wireless device [xiii],
both start controller [iv] [open-close bar] and start controller [ix] [open-close bar] areclosed and a closed zone is formed.
Therefore, Appellee's system 4 fulfills Constituent Feature I2 of Invention 2.
B. The Appellee alleged that Constituent Feature I2 of Invention 2 has a meaning toprevent a collision by having only one vehicle present in the closed zone; however, in24

Appellee's system 4, multiple vehicles can be present in the zone formed between start
controllers [iv] and [ix] [open-close bars] and there is the possibility of a collision, andtherefore, it does not fulfill Constituent Feature I2.
However, in the claims of Patent 2, whether there is only one vehicle in the closed
zone as defined in Constituent Feature I2 is not specified.
In addition, according to paragraphs [0054] through [0058] and [FIG. 9] of
Description 2, in Invention 2, the closed zone that is formed between the second bar
and fourth bar is found to be a structure mainly to prevent a vehicle from entering an
ETC vehicle lane in the wrong direction from the exit of an ETC vehicle lane. Basedon this fact, it is found that it is not required that only one vehicle be present in theclosed zone.
Consequently, the aforementioned allegations of the Appellee cannot be accepted.
(6) Summary
As stated in No. 2, 1. (5) in the judgment of prior instance that is corrected and thencited, the Appellee's systems fulfill the Constituent Features E1, E2, G1, G2, H1, andH2 of the Inventions.
In addition, as mentioned in (1) through (5) above, the Appellee's systems fulfill
Constituent Features A1, B1, C1, D1, F1, I1, J1, K1, A2, B2, C2, D2, F2, J2, K2, andL2 of the Inventions and Appellee's system 4 fulfills Constituent Feature I2 of Invention
2. Therefore, it is found that Appellee's systems 1 through 3 belong to the technicalscope of Invention 1 and Appellee's system 4 belongs to the technical scope of theInventions.
3. Issue 2 (Whether there are Grounds for Invalidation 1 (breach of the clarity
requirements related to the first detection means, the first bar, and communicationmeans, etc. of the Inventions))(1) Whether an invention for which a patent is sought is clear or not should bedetermined in consideration of the statements and drawings of the descriptions inaddition to the statements in the claims, and from the perspective of whether thestatements in the claims are unclear to the extent of causing unexpected losses to a third
party based on the common general technical knowledge of a person skilled in the art
at the time of filing an application.
(2) The Appellee alleged that the Inventions do not fulfill the clarity requirements as
defined in Article 36, paragraph (6), item (ii) of the Patent Act since they do not clarify
the following points respectively: [i] the status (form) of the lanes in which theInventions are placed; [ii] the positions where the first detection means, the first bar,communication means, guiding means, the second detection means, the third detection25

means, the third bar, means to lower the first bar, means to lower the second bar, andmeans to lower the third bar are placed and their positional relationship; [iii] thestructure of the guiding means and how it guides a vehicle; [iv] the timing when thefirst, second, and fourth bars open; [v] the first bar's operation; [vi] operations of otherstructures and operation of the third bar when the third detection means detects a vehicle.
Therefore, they are examined below.
A. [i] The status (form) of the lanes in which the Inventions are placed
In the claims of the Patents, it is stated that the first lane leads to a route to enter atoll gate, service area, or parking area on a toll road or to exit from a toll gate, service
area, or parking area on a toll road, and that the second lane leads to a route to go backto the entrance of the ETC vehicle gate or to a general vehicle gate (Constituent Features
F1 and F2). In the Descriptions, embodiments of the first lane and the second lane areshown in [FIG. 3], [FIG. 4], [FIG. 6], [FIG. 7], [FIG. 9], and [FIG. 11]. Therefore, thestatus (form) of the lanes in which the Inventions are placed are not unclear to the extent
of causing unexpected losses to a third party.
B. [ii] Positions where bars, sensors, etc. are placed and their positional relationshipIn the Inventions, the positional relationship of each constituent feature is notalways specified; however, if the scope of an invention is clearly defined by identifying
their functional relationship, it is not unclear to the extent of causing unexpected losses
to a third party.
In the claims of the Patents, the following is stipulated respectively: when a vehicle
passes the first detection means, the first bar lowers, and when a vehicle passes thesecond detection means, the second bar lowers (Constituent Features I1 and J2); whena vehicle passes the fourth detection means, the fourth bar lowers (Constituent FeatureJ2); whether tolls can be collected using the ETC system is determined based on thedata that a communication means received from a vehicle-mounted ETC device(Constituent Features E1 and E2); and a guiding means including the second bar guides
a vehicle to the first lane, or a guiding means including the third bar guides a vehicle tothe second lane (Constituent Features F1, G1, F2, and G2). The constituent features of
the Inventions need to be placed in a positional relationship that enables the above. In
consideration of the above, along with [FIG. 3], [FIG. 4], [FIG. 6], [FIG. 7], [FIG. 9],
and FIG. 11] of the Descriptions, it is understood that the first bar, the first detectionmeans, and communication means are installed on an ETC vehicle lane before it
branches off to the first route and the second route; the second bar, the second detectionmeans, the fourth bar, and the fourth detection means are installed on the first route;and the third bar and the third detection means are installed on the second route26

respectively.
Based on the above, the aforementioned [ii] is not unclear to the extent of causing
unexpected losses to a third party.
C. [iii] Structure of the guiding means and way of guiding
In paragraph [0038] of the Descriptions, a method to guide a vehicle by opening or
closing a bar as necessary, a method to guide a vehicle using letters, such as "Passable,"etc., codes, illustrations, etc., and a method using bar-type and display panel-type
together are stated as specific examples of guiding means. In addition, in [FIG. 4], as a
specific example of a guiding means, a structure using a display panel showing a code,"→," is indicated.
Therefore, even if the structure of a guiding means and a guiding method are notconcretely specified in the claims, it is not unclear to the extent of causing unexpected
losses to a third party.
D. [iv] Timing when the first, second, and fourth bars open
In the claims of the Patents, the timing when the first and second bars open is not
specified and in the claims of Patent 2, the timing when the fourth bar opens is not
specified.
However, as stated in 1. (2) above, the Inventions are to provide a safe vehicle
guidance system that can prevent wrong-way driving and to avoid a collision with afollowing vehicle by appropriately lowering bars after the vehicle passes through them(hereinafter referred to as "Function and Effect 2") and in which the timing to lower thebars is specified. Therefore, if bars lower for a period to the extent that the
aforementioned effects of preventing the wrong-way driving, etc. are not undermined,
the Inventions are found to present the aforementioned effects. In addition, whenworking the Inventions, a person skilled in the art can choose to open bars at a voluntarytiming from the perspective of how much the aforementioned effects should bepresented.
Based on the above, it cannot be said that the Inventions are not unclear to the extent
of causing unexpected losses to a third party based on the fact that the timing when thefirst, second, and fourth bars open is not specified.
E. [v] Operation of the first bar
In the claims of the Patents, it is not specified how the first bar operates when avehicle from which tolls cannot be collected using the ETC system comes (whether avehicle can pass through without stopping).
In addition, in the Descriptions, there are statements such as [Best embodiment of
the invention] that "bar 1 that was opened in advance" (paragraph [0033]), "When first27

vehicle sensor 2a detects the entry of a vehicle (step S02), bar 1 is closed to make aspecified interval with a following vehicle (step S03). Bar 1 does not open, as statedbelow, unless vehicle sensor 2c or 2d detects a vehicle, and therefore, it can avoid acollision between a preceding vehicle and a following vehicle and a preceding vehicle
from traveling in Lane A in the wrong direction " (paragraph [0040]). The Descriptions
show an embodiment of a structure where bar 1 (the first bar) was opened in advance,
and it closes after a vehicle passes through it, and then it does not open unless vehicle
sensor 2c (the second detection means) or 2d (the third detection means) detects apreceding vehicle.
However, the embodiment is the best embodiment to work the Inventions and it
does not mean that the functions and effects of the Inventions will not be presented inother embodiments. Then, it cannot be said that the Inventions lack clarity to the extent
of causing unexpected losses to a third party based on the fact that the structure
indicated in the aforementioned embodiment is not specified in the claims.
F. [vi] Operations of other structures and the third bar when the third detection means
detects a vehicle
In the Inventions, in cases where the third detection means detects the passing of avehicle, it is specified that the third bar is lowered after the passing of the vehicle(Constituent Features K1 and L2), and therefore, it cannot be said that regarding theoperations of other structures when the third detection means detects a vehicle , theInventions lack clarity to the extent of causing unexpected losses to a third party.
The Appellee alleged based on the statement in paragraph [0059] of the Descriptions
that since bar 1-3, closed zone sensor 17, and closed zone G as stated in said paragraphare not specified in the Inventions, they lack clarity. However, items indicated in the
aforementioned paragraph are the best embodiment to work the Inventions, but not thatfunctions and effects of the Inventions are not presented unless the structure of said
embodiment is adopted. Therefore, the aforementioned allegations of the Appellee
cannot be accepted.
(3) Based on the above, the Inventions do not breach the requirements for clarity.
4. Issue 3 (Whether there are Grounds for Invalidation 2 (lack of an inventive step ofInventions based on Exhibit Otsu 35 Invention))(1) Exhibit Ko 35 has the following statements.
"2. Claims for utility model registration
A toll collection device, which is a toll collection device for toll roads having botha magnetic card system and contactless card system in a mixed manner in a tollcollection system, and which is characterized by the structure where a toll gate is28comprised by dividing it into a magnetic card system vehicle lane and a contactless card
system vehicle lane, by having a guiding means to guide a vehicle to a magnetic card
system vehicle lane in which the entrance gate of a contactless card system vehicle lane
is closed in cases where a contactless card has a reading failure or cannot be read, or
where the card is defective is detected.
3. Detailed explanation of the idea
[Industrial applicability]
This idea is related to a toll collection device for a toll road." (Page 1 of the
Descriptions in Exhibit Otsu 35)"[Problems to be solved by the idea]
As mentioned above, in cases where a contactless card is used as a toll ticket witha toll collection system for a toll road, the entrance and exit of a toll gate may beunmanned; however, for example, in cases where the contactless card information
cannot be read or where the card information transmitting and receiving unit breaks
down, etc., or, for example, in cases of a card reading failure, tolls cannot be collected
and therefore, a vehicle with such a card cannot travel on a toll road.
Therefore, a system to avoid these situations must be built."(Pages 2 to 3 of said Descriptions)"[Embodiment]
1. Structure
Figure 1 shows a layout of a toll gate of a toll collection system for a toll road in
the present idea. Entrance (I) is a lane using a contactless card and entrance (II) is alane using a magnetic card system. 11 and 12 are vehicle dividers and they divide anddetect vehicles one by one. 13 is a sensor for the number of axles and track treads andit detects the number of axles and number of wheels of vehicles. 14 is an on-road device
and it reads the information of the vehicle-mounted device. 15 is a lane control device
and it controls a vehicle-mounted device at entrance (I) and entrance (II). 16 is a display
board and it displays messages to a vehicle with which a contactless card cannot be readin order to guide the vehicle smoothly to a manned lane. 17 is a bar and it is usually
kept open and it prevents a vehicle for which the contactless card cannot be read fromentering from the contactless card lane. 18 and 19 are the same vehicle dividers as 11
and 12. 110 is an axle number sensor and it measures the number of axles of vehicles.
It has a function to detect the passing of vehicles by the combination of vehicle dividers
18 and 19 and axle number sensor 110 and then, to return the contactless card lanesystem to the initial conditions. 111 and 112 are the same vehicle dividers as 11 and 12
as mentioned above. 113 is the same sensor for the number of axles and track treads as29

13 as described above and it detects the number of axles and number of wheels of
vehicles. 114 is a toll ticket machine and issues a toll ticket for the magnetic card laneentrance (II).
In Figure 1, bypass (III) is a bypass lane to guide a vehicle with a contactless card
to a magnetic card lane in cases where there is a card reading failure, or where the cardcannot be read, the card is defective, or no card is carried.
(omitted)
Figure 3 is a block configuration diagram of a toll collection system for a toll roadin the present idea. (omitted) 34 is an on-road device and it sends information that issent from a vehicle-mounted device (contactless card) on a vehicle to lane controller 35
in a form of signal." (Pages 4 to 6 of said Descriptions)"37 is a bar and the bar is usually kept open, but it closes when the contactless card
information cannot be read." (Page 7 of said Descriptions)"[Effects of the idea]
In the present idea, both the magnetic card system and a contactless card system
exist together and thereby, if an inconvenience, such as a card reading failure with acontactless card system, etc., occurs, the vehicle in question can be guided to themagnetic card lane from the contactless card lane so that there will be no inconvenienceto the system." (Page 16 of said Descriptions)

Exit

Exit

Exit

Entrance
Vehicle controller
Entrance
Bypass

Vehicle divider

Vehicle divider

Figure 1: Layout of a toll collection system for a toll road in the present idea

30

Entrance
BypassFigure 2: External view of a toll collection system for a toll road in the present idea

31

EntranceSensor for the number ofaxles and track treads
Vehicle divider(A)

Toll ticket machine

Vehicle divider (B)Magnetic card system

Contactless card system

Vehicle divider (B)Vehicle divider (A)Sensor for thenumber of axles
Bar

Vehicle sensor

Vehiclecontroller

Display board

Vehicledivider (A)On-road device

Vehicledivider (B)Sensor for the number ofaxles and track treads

Vehicle sensor

Start sensor

Figure 3: Block configuration diagram of a toll collection system for a toll road in the present idea

(2) Finding of Exhibit Otsu 35 Invention
Based on (1) above, Exhibit Otsu 35 Invention is found to have the following
structure as alleged by the Appellee.
A. It is a toll collection device for a toll road having both a magnetic card system and acontactless card system in a mixed manner in a toll collection system.
B. It has vehicle dividers 11 and 12 that divide and detect vehicles one by one.
D. It has on-road device 14 that reads the information of a vehicle-mounted device.
E. It has on-road device 34 (14 in Figure 1 and Figure 2) that sends information that issent from a vehicle-mounted device (contactless card) on a vehicle to lane controller 35
in a form of a signal.
F'. In Figure 1, bypass (III) is a bypass lane to guide a vehicle with a contactless card
to a magnetic card lane in cases where there is a card reading failure, or where the cardcannot be read, the card is defective, or no card is carried.
G'. In the block configuration diagram as shown in Figure 3, it has bar 37 that closes
bar 17, which is always kept open, in cases where the contactless card information
32

cannot be read.
H'. It includes vehicle dividers 18 and 19 (equivalent to the second detection means)that detect a vehicle passing through bar 17, and vehicle dividers 111 and 112 that detectvehicles traveling on the bypass (III).
I'. It has a function to detect the passing of vehicles by the combination of vehicle
dividers 18 and 19 and axle number sensor 110 and then to return the contactless cardlane system to the initial conditions (to open bar 17 that was closed).
J. It is a toll collection device for a toll road.
(3) Comparison between the Inventions and Exhibit Otsu 35 Invention
Comparing the structure of the Inventions and the structure of Exhibit Otsu 35
Invention in (2) above, the following differences are found.
A. Difference 1
Exhibit Otsu 35 Invention does not have a bar equivalent to the first bar that is
installed corresponding to the first detection means in the Inventions.
B. Difference 2
Exhibit Otsu 35 Invention does not have a means to lower the first bar after a vehicle
passes through in cases where the entry of the vehicle is detected by the first detectionmeans.
C. Difference 3
Exhibit Otsu 35 Invention does not have a means to lower the second bar after avehicle passes through in cases where the entry of the vehicle is detected by the second
detection means.
D. Difference 4
Exhibit Otsu 35 Invention does not have a bar equivalent to the third bar that is
installed on the second lane (bypass III).
E. Difference 5
Exhibit Otsu 35 Invention does not have a means to lower the third bar after avehicle passes through in cases where the passing of the vehicle is detected by the third
detection means.
F. Difference 6 (in the relationship with Invention 2 only)
Exhibit Otsu 35 Invention does not have a structure equivalent to the closed zone inInvention 2.
(4) Statements in Exhibits Otsu 20 through 22 and 36
A. Exhibit Otsu 20 has the following statements.
[Invention title] Automatic toll payment system for a toll road
[0001]
33

[Industrial applicability] The present invention is related to an automatic toll payment
system for a toll automobile road and, in particular, an automatic toll payment system
for a toll road with which tolls can be paid without stopping the vehicle by transmittin g
and receiving signals using a wireless communication device.
[0003][Problems to be solved by the invention] With the aforementioned conventional
payment system, a vehicle (automobile) must stop once in order to receive a toll ticket
at a toll road entrance and it causes traffic congestion. In particular, at the exit of a tollgate, a vehicle must stop once, pay the toll after calculation of the toll, and receive
change, etc., and therefore, it takes time even though it is a small amount of time, andcauses traffic congestion. ...
[0005][Embodiment] FIG. 1 is a pattern diagram indicating an embodiment of the present
invention, and 1 is a toll road (toll automobile road), 2 is the entrance of the toll
automobile road, 3 is a general gate, and 4 is the ticketing station at general entrance 3.
5 is a dedicated entrance for the present invention system, 6 is the gate of the dedicatedentrance, and 7 is a wireless communication device for the entrance that is installedaround the dedicated entrance gate. 8 is a vehicle (automobile) mounted with wirelesscommunication device 9. 10 is the exit of a toll road, 11 is a general exit, 12 is a toll
payment station for the general exit 11, and 13 is the gate for toll payment station 12.
14 is a dedicated exit for the present invention system, 15 is the gate of the dedicatedexit, and 16 is a wireless communication device for the exit that is installed around the
dedicated exit gate. 17 is a central controller and 18 is a financial institution.
[0006] When vehicle 8 related to the present invention system enters near the entranceof a toll road, the vehicle ID signal is transmitted from wireless communication device
9 of vehicle 8. When the vehicle ID signal is received by wireless communication device
7 for the entrance that is installed near the entrance of a toll road, dedicated entrance
gate 6 is opened to allow vehicle 8 enter toll road 1 and, after vehicle 8 enters, dedicatedentrance gate 6 is closed. ...
[0009] FIG. 2 is an operation flow chart between devices in the aforementioned
embodiment of the present invention indicating the transmitting and receiving of signals
between the devices and the operation and control status of devices based on said
signals. The phrase "(Gate opens or closes, or to a general exit)" in FIG. 2 means thefollowing, as mentioned above: based on the information on whether the toll can bepaid, which is sent from central controller 17 to wireless communication device 16 for
exit, if the toll can be paid, dedicated exit gate 15 is opened or closed and if the toll34

cannot be paid, dedicated exit gate 15 remains closed and the vehicle is guided to thegeneral exit using a display, etc. ...
[FIG. 1]

Central controller

Financial
institution[FIG. 2]

Entrance

Wireless
communication device
for vehicles

Wireless communication
device for entrance andexit

Vehicle ID

Centralcontroller

Financial
institution(Entrance)(Entrance) Vehicle ID/Entrance ID(Gate open/close)(Memory)
Account No. of vehicle ID

Traveling

Information on whether payment
is possible from the account(Memory)

Exit

Vehicle ID(Exit)(Exit)

Vehicle ID/Exit ID(Exit)

Information on whether
payment is possible

After traveling(Gate opens or closes
or to a general exit)(Calculation) Requesting toll

Payment of toll
(Electronic withdrawal)

B. Exhibit Otsu 21 has the following statements.
[Invention title] Parking lot elevator system[0001][Industrial applicability] This invention is related to a parking lot elevator system.
35

[0004][Problems to be solved by the invention] As explained above, in the conventional
parking lot elevator system, the decision on whether the parking lot is available on eachparking lot floor is made only based on the number of vehicles parked. Therefore, thereis the problem that if this parking lot elevator's driving device is used for a parking lot
where the available floors differ by vehicle size, there are cases where a vehicle that is
carried to the parking lot floor that is automatically selected by the first calling
registration means 6 cannot park since the vehicle size does not meet the size available
on the parking lot floor and the vehicle must be transferred to the available parking lot
floor again, and therefore, the elevator operation becomes less efficient.
[0027] Embodiment 4 ..
[0028] FIG. 7 is a floor map of a parking lot that has parking zones by vehicle size. In
FIG. 7, 13 is an elevator car, 27 is parking zone A to park vehicles of A size, 28 isparking zone B to park vehicles of B size, 29 is a parking zone guiding device to guidevehicle 12 that got off from elevator car 13 to the parking zone, and 30 is a pathway. ...
[0033] Embodiment 5
In addition, as another embodiment of a parking lot floor that has the parking zone asshown in embodiment 4, parking lot floor as shown in FIG. 11 is indicated as
embodiment 5 and explained. This is a parking lot floor where it is ensured that a vehicle
can be parked in a parking zone that meets the vehicle size.
In FIG. 11, the same codes as FIG. 7 refer to the same or equivalent parts. 38 is a parking
zone separator that divides parking zone A27 and parking zone B28, 39 is a bar that
opens and closes to prevent a vehicle from entering a parking zone other than theselected parking zone so that the vehicle that got off from elevator car 13 does not enter
the wrong parking zone and to have the vehicle parked in the correct parking zone.
[0034] … In FIG. 11, when elevator car 13 with a vehicle arrives at the parking lot floor,bar 39 that leads to the parking zone corresponding to the vehicle size alone opens byreceiving a signal from controller 15, and the other bars remain closed. At the sametime, parking zone guide means 29 operates by receiving a signal from controller 15 inorder to guide the vehicle to a parking zone corresponding to the vehicle size.
[0035] Based on the aforementioned structure, a vehicle will not be parked in the wrong
parking zone and, therefore, parking spaces can be controlled correctly. In addition, if
the flow of vehicles exiting from the parking lot is controlled by bar 39, it can be
identified from which parking zone each vehicle came and, therefore, it is no longer
necessary to measure the size of a vehicle that exits from the parking lot.

36

[Fig. 11]

C. Exhibit Otsu 22 has the following statements.
[Invention title] Parking management system[0001][Technical field of the invention] The present invention is related to a parking
management system and, in particular, to a parking management system to manage thetraffic of the vehicle entrance route and exit route.
[0003] In a conventional parking management system for this type, when a vehicle
enters, it detects the entering vehicle by a vehicle sensor, opens the gate, and allows its
entry, and a parking ticket machine automatically issues a parking ticket on which
information, such as entrance time, etc., is recorded. The passenger of the vehicle thatentered takes out an issued parking ticket and parks the vehicle in an available parking
space. When the vehicle exits, the passenger inserts the parking ticket that was issued
at the entrance into a toll payment machine and settles the parking fees displayed basedon the recorded information. When the parking fee is settled, the gate is opened and thevehicle is allowed to exit.
[0004][Problems to be solved by the invention] However, in the conventional parking
management system, there is only one gate to control the entrance and exit of a vehicle.
In addition, in consideration of the safety of passengers who pass through the gate andthe prevention of disruptive vehicle accidents, etc., the lowering speed of the gate isconfigured to be rather slow. Therefore, when a preceding vehicle settles the parking
37

fees and the gate opens, tailgating, which means a vehicle wrongfully exits following a
preceding vehicle without settling parking fees, is possible and was difficult to prevent.
[0005] The present invention was made by focusing on the aforementioned problem andaims to provide a parking management system that can prevent tailgating.
[0016][Embodiment of the invention] The embodiment of the present invention is explained
below based on figures. ...
[0021] Next, vehicle traffic control using a parking management system of theembodiment is explained in accordance with a flowchart. In FIG. 3 and FIG. 4, theoperations at entrance and exit in cases of a closed mode, where the first gate 3 at theentrance side is usually closed, are indicated.
[0022] First, the entrance operation is explained in accordance with FIG. 3.
[0024] In step 5, the system determines whether loop coil LC1 and optical sensor S1
detects a vehicle. Waiting for the time until there are no detection outputs from either
device, it determines that the vehicle that entered completely passed through the firstgate 3 when there is no detection output from either device, and then moves to step 6.
Consequently, for a vehicle that entered, loop coil LC1 and optical sensor S1 comprisethe first vehicle detection means.
[0025] In step 6, the first gate 3 is lowered and closed. This will close the area between
gates 3 and 4 and allow only one vehicle that entered to move forward. In this case,signal lamp 7 changes to red and prohibits the entry of a following vehicle.

38

[FIG. 1](Exit side)(Entrance side)

D. Exhibit Otsu 36 has the following statements.
[Title of the invention] Traffic regulation method and traffic regulation device[0001][Technical field of the invention] The present invention is related to a traffic regulation
method and traffic regulation device to regulate the traffic volume of automobiles(hereinafter referred to as "vehicles") in a specified area.
[0004][Problems to be solved by the invention] However, in the aforementioned manned
method, it is necessary to assign an attendant to each entrance lane. Therefore, there areproblems with securing personnel and labor costs, as well as problems that the working
environment and conditions due to weather or other reasons are severe. In addition,
there is the problem that it is difficult to identify vehicles in an easy and secure manner.
Furthermore, in cases of collecting fees from a general vehicle, a driver of the generalvehicle does not always have the necessary amount or type of cash and difficulties often
occur at toll payment. In addition, much effort is required for storage, transfer, andtreatment of the collected cash and there is also a problem with crime prevention withthe handling of the cash. The aforementioned unmanned method solves problems withthe aforementioned manned method, such as securing personnel, labor costs, working
conditions, and difficulty in identifying vehicles, etc.; however, the materials, printing,and distribution of toll tickets require costs and there is a problem of crime prevention
39

with the cash that is collected from the cash collecting machine. ...
[0015][Embodiment of invention] Next, the embodiment of the present invention is explained
based on figures. The traffic regulation method of the present invention is explained
along with the following traffic regulation device that uses the present invention method.
[0036] ... First, CPU100 stands by for input of the detection signal indicating anapproach of a vehicle that is sent from approach sensor 15 (ST20). If ST20 is "Y," CPU
100 orders driving unit 12 to open bar 14 (ST21). Based on the above, driving unit 12
opens bar 14. Next, CPU 100 stands by for input of the detection signal indicating
passing of a vehicle that is sent from approach sensor 16 (ST22). If ST22 is "Y," CPU
100 orders driving unit 12 to close bar 14 (ST23). Based on the above, driving unit 12
closes bar 14 and terminates its operation. Based on the aforementioned operations, aclosed entrance lane can be opened and then closed again based on an approach andpassing of a vehicle to bar 1, and therefore, accurate traffic regulation can be performed
for a vehicle that passes bar 1.
[FIG. 1]Service control
stationPHS control
database

Customermanagement
information database

Correspondence
table
Digital communication
network
Common channel
signal network

Switchingequipment

Switchingequipment

SwitchingequipmentBasestationBasestation(5) Examination of differences
Looking at Difference 1 in (3) A. above, in Exhibit Otsu 35 Invention, vehicle
dividers 11 and 12 are equivalent to "the first detection means" in the Inventions. There
are no statements or suggestions in Exhibit Otsu 35 that any bar corresponding tovehicle dividers 11 and 12 is installed in addition to bar 17.
In Exhibits Otsu 20 and 36, inventions related to a system that is installed at an40

entrance route to a toll road or specified area are stated; however, the inventions all
control whether to allow a vehicle to pass by using one bar in the moving direction andthere are no statements or suggestions to install two or more bars.
In addition, in Exhibit Otsu 22, a structure to install two bars in the moving direction
is disclosed; however, Exhibit Otsu 22 is an invention in which two bars are installed
in order to prevent a vehicle from exiting wrongfully without paying parking fees byfollowing a preceding vehicle and it is not motivated to install the first bar
corresponding to the first detection means with the aim of preventing a vehicle travelingin the wrong direction from traveling on the ETC lane of an expressway, as in the caseof the Inventions. In addition, the invention stated in Exhibit Otsu 21 is related to anelevator system to move a vehicle in a parking lot with multiple stories, but it does nothave a structure where two bars are installed in the moving direction.
Furthermore, there is no other evidence that is enough to find that it was well -known
technology to install two bars in the moving direction on the ETC lane of an expressway.
Based on the above, it cannot be said that Difference 1 is easily conceived of by aperson skilled in the art and, without the need to make determinations on the remaining
matters, the allegations of the Appellee on the lack of an inventive step based on Exhibit
Otsu 35 are groundless.
5. Issue 4 (Whether there are Grounds for Invalidation 3 (on the premise of a breach of
requirements for division of Patent 1 Parent Application, lack of novelty and breach of
support requirements of Invention 1 based on publications of Exhibit Otsu 45 or Exhibit
Ko 12))(1) The Appellee alleged that Patent 1 Parent Application (Patent Application No. 2015098590) has a breach of requirements for the division and, therefore, it is not deemed
to have been filed on the application date of the Parent Application pursuant to Article
44, paragraph (2) of the Patent Act, and the Appellee also alleged concerning Patent 1,
which is a divisional application for part of Patent 1 Parent Application, that theapplication date does not reach back to before the application date of Patent 1 Parent
Application (May 13, 2015).
(2) Concerning the above, the Appellee alleged that Patent 1 Parent Application was
refused due to a breach of requirements for division and the judgment became final andbinding, and therefore, it is examined.
In the examiner's decision on refusal of Patent 1 Parent Application (Exhibit Otsu
42-1), there is a statement that "the application should be refused on the grounds
indicated in the notice of grounds for refusal dated March 14, 2016"; however, in said
notice of grounds for refusal (Exhibit Otsu 16), the lack of novelty and lack of an41

inventive step are pointed out on the premise that the filing date does not reach backdue to a breach of requirements for division. However, in said notice of grounds forrefusal, it is pointed out that matters regarding the "unity of invention," "support
requirements," and "clarity" also fall under the grounds for refusal in addition to theabove. In the examiner's decision on refusal, there is also a statement of "filing date
(retroactive date): September 13, 2004" and it is found that Patent 1 Parent Application
is deemed to be filed on the filing date of the Patent Application. It is estimated thattrial examiners of the Japan Patent Office refused the application on grounds other thanlack of novelty and lack of an inventive step that are on the premise of a breach of
requirements for division. Therefore, it cannot be found that trial examiners of the Japan
Patent Office refused Patent 1 Parent Application on the grounds of a breach of
requirements for division.
In addition, in the aforementioned notice of grounds for refusal, there is a statementthat Patent 1 Parent Application falls under a breach of requirements for division on the
grounds that inventions related to Claims 1 and 2 are not indicated in the descriptions,claims, or drawings at the initial filing of the Original Application (Patent Application
No. 2014-243621); however, it is found that Claims 1 and 2 of Patent 1 Parent
Application (Exhibit Otsu 46) completely match Claims 1 and 2 of the Original
Application (Exhibit Ko 15) when comparing them. Therefore, it must be said that thestatement in the aforementioned notice of grounds for refusal was an error and there isno other evidence that is enough to find that there was a breach of requirements fordivision concerning Patent 1 Parent Application.
(3) Based on the above, Grounds for Invalidation 3 alleged by the Appellee lack thepremise. In addition, in light of the statements in Description 1, it cannot be said that
Invention 1 is not the one stated in the detailed explanation of the invention of
Description 1. Consequently, Grounds for Invalidation 3 alleged by the Appellee are
groundless.
6. Issue 5 (Whether there are Grounds for Invalidation 4 (breach of support
requirements related to the timing to open bars concerning Invention 2))(1) The Appellee alleged that the fact that the timing to open the bars in Invention 2 is
not specified falls under a breach of the support requirements. Whether a statement in
the claims conforms to the support requirements should be determined by comparing
the statement in the claims and the statement in the detailed explanation of the invention
and by examining whether an invention stated in the claims is an invention stated in thedetailed explanation of the invention and the invention is in the scope where a person
skilled in the art can recognize that the problems of the invention can be solved based42

on the statement in the detailed explanation of the invention, or whether it is in thescope where a person skilled in the art can solve the problems of the invention in lightof the common general technical knowledge at the time of filing the application even
without any statements or suggestions in the detailed explanation of the invention.
(2) In the claims of Patent 2, it is stated that if the first through fourth detection means
detect the entry of a vehicle, the first through fourth bars corresponding thereto arelowered after the vehicle passes through them (Constituent Features J2 and L2);
however, the timing to open bars is not specified.
However, in paragraph [0058] of Description 2, there are statements that (in FIG 9)"in cases where a vehicle enters lane D, when vehicle sensor 2c detects a vehicle (stepS49), it closes bar 4-1 and opens bar 1-2 (step S50), and then, it keeps bar 4-1 closed
until antenna 3 in front of the gate subsequently recognizes and determines a following
vehicle (step S48)." "When vehicle zone sensor 16 confirms that there is no vehicle inclosed zone F (step S54), it opens bar 1 (step S55) and the following vehicle can enter. "In paragraph [0059] of Description 2, there are statements that "In cases where a vehicle
enters lane E, when vehicle sensor 2d detects a vehicle (step S58), it closes bar 4 -2 andopens bar 1-3 (step S59), and then, it keeps bar 4-2 closed until antenna 3 in front of
the gate subsequently recognizes and determines a following vehicle (step S57). Whenvehicle sensor 2f detects a vehicle (step S60), it closes bar 1-3 (step S61) and preventsa wrong vehicle from entering in the wrong direction from the exit of lane E. Whenvehicle zone sensor 17 confirms that there is no vehicle in closed zone G (step S62), it
opens bar 1 (step S63) and the following vehicle can enter." Thus, an example of thetiming to open an appropriate bar in order to avoid a collision with a following vehicle
and to prevent the wrong vehicle from entering from the wrong direction is shown.
In addition, Invention 2 shows effects to prevent a vehicle from driving the wrong
way by lowering a bar after the vehicle passes through it and to avoid a collision
between a preceding vehicle and a following vehicle. Therefore, a person skilled in theart can easily understand that it is enough to determine the timing to open a bar to theextent necessary to obtain the effects. In addition, concerning the second and the fourthbars, it is stated that they form a closed zone (Constituent Feature I2). Therefore, it canbe said that it is specified that the second and the fourth bars are opened at a timing thatis enough to form the closed zone.
Based on the above, a person skilled in the art can easily determine the timing toopen the bars in Invention 2 based on the statements in Description 2, and it can be said
that Invention 2 is an invention stated in the detailed explanation of the invention in
Description 2 and is in the scope where a person skilled in the art can solve the problem
43

of the invention based on the statements of the detailed explanation of the invention.
(3) Based on the above, concerning Invention 2, the allegations of the Appellee that thefact that the timing to open bars is not specified falls under a breach of support
requirements cannot be accepted.
7. Issue 6 Occurrence of damages or unjust enrichment and the amount thereof(1) There is no dispute between the parties that the Appellee installed the Appellee'ssystems at Sano SA Smart Interchange on April 28, 2011 and has collected tolls fromvehicles passing through using said systems.
The fact that the Appellee installed the Appellee's systems that are included in thetechnical scope of Inventions and guided vehicles that enter and exit from the Tohoku
Expressway from Sano SA Smart Interchange using said systems falls under the workby "using" the Inventions (Article 2, paragraph (3), item (i) of the Patent Act).
In this case, the Appellant claimed damages for the amount equivalent to royalties
pursuant to Article 102, paragraph (3) of the Patent Act. Generally, royalties arecalculated by multiplying sales by the royalty rate. The amount that each vehicle thatenters or exits from the Tohoku Expressway pays to the Appellee using the Appellee'ssystems (toll, etc.) is the total of the fixed amount of 150 yen (terminal charge) that is
imposed per use of the expressway, and the variable amount that is imposed based on
the distance used (toll). The toll is 24.6 yen per km (normal zone and normal vehicle)(Exhibit Otsu 48). When an expressway is used once, a vehicle passes the gate twice(concerning a vehicle that uses Sano SA Smart Interchange, two gates at Sano SA Smart
Interchange and another Interchange). Therefore, at least half of the aforementioned
terminal charge, 75 yen, falls under sales related to the use of the Appellee's systems.
In addition, a vehicle that enters and exits from Sano SA Smart Interchange travels
Tohoku Expressway at least between Sano-Fujioka Interchange or Sano-Tanuma SA
Smart Interchange, which are adjacent interchanges, and Sano SA Smart Interchange.
Therefore, the variable amount corresponding to the distance from Sano SA Smart
Interchange to an adjacent interchange (toll) can be deemed to fall under t he sales
related to the use of the Appellee's systems. The aforementioned toll is calculated asfollows: the distance from Sano-Fujioka Interchange to Sano SA Smart Interchange is
2.7km (Exhibit Ko 22-1) and the distance from Sano-Tanuma Interchange to Sano SA
Smart Interchange by way of Iwafune Junction is 11.2km (Exhibit Ko 22); the average
distance of 6.95km is multiplied by the amount per km of 24.6 yen; and the toll is 170
yen (any fraction of less than one yen is rounded down).
Based on the above, sales per vehicle by use of the Appellee's systems are at least
245 yen.
44

(2) Next, according to the evidence (Exhibit Ko 23 and Exhibit Ko 34 -1 through 3472), the number of vehicles (average per day) that pass through Sano SA Smart
Interchange for each month from July 2015 through July 2021 is found to be as indicatedin the column for "vehicles/day" in Attachment 2. When the number of vehicles passing
per month is calculated by multiplying it by the number of days in each month, it is asindicated in the column for "vehicles/month" in said attachment (the number of vehicles
passing for the period from July 3 through July 31, 2015 is calculated to be 74,153
vehicles; however, it is found to the extent of 74,152 vehicles that is alleged by theAppellant). In addition, four units of the Appellee's systems are installed at Sano SA
Smart Interchange. Therefore, assuming that the number of vehicles that passed eachsystem is one-fourth each, the number of vehicles that passed the Appellee's system 1
through 3 during the period from June 16, 2017, when Patent Right 1 was registered,
until July 31, 2021 is estimated to be 3,085,926 vehicles and the number of vehicles
that passed Appellee's system 4 for the period from July 3, 2015, when Patent Right 2
was registered, until July 31, 2021 is estimated to be 1,498,587 vehicles, and the total
number of vehicles is 4,584,513 vehicles.
(3) Based on the above, the sales from the use of Appellee's systems are calculated tobe 1,123,205,685 yen (= 245 yen × 4,584,513 vehicles).
(4) According to the evidence (Exhibits Ko 26 and 31 and Exhibits Otsu 51 and 55), thefollowing can be found [i] the Appellee's systems are installed at a smart interchange;
the Appellee improved the average distance between interchanges from 10km in t hepast to 5km, which is at the level of Europe and the U.S.A. by introducing smart
interchanges; and thereby, the Appellee intends to promote the enhancement of regional
life and revitalization of regional economies; [ii] the installation cost at a regula rinterchange is from 3 to 6 billion yen, while the installation cost at a smart interchange
is 300 to 800 million yen; the management costs are 120 million yen/year for a regularinterchange and 50 million yen/year for a smart interchange; and therefore, the Appellee
could reduce costs by installing smart interchanges; [iii] if the Appellee's systems are
installed at an existing service area, the number of gates can be increased and theconvenience of expressways can be increased; and therefore, it may result in increasing
users; [iv] the number of vehicles using the Tohoku Expressway did not significantly
increase by the installation of the Sano SA Smart Interchange; [v] the Appellee also
installed a smart interchange that does not conflict with the Patents and has substitutetechnology (according to the allegation of the Appellee, there are nearly half of thesmart interchanges that do not conflict with the Patents); [vi] the Appellant has notworked the Patents by itself and there is no possibility to work the Patents in the future45

as well; [vii] the composition percentage of the Appellee's systems that account for
facilities in the Sano SA Smart Interchange (percentage of price) is 7.8%; and [viii] theAppellee continues to work the Patents even after receiving a warning from theAppellant.
In consideration of the aforementioned circumstances together, it is reasonable tofind that the royalty rate of the Patents is 2%.
(5) Based on the above, the amount of damages is calculated.
A. The amount equivalent to royalties: 1,123,205,685 yen × 2% = 22,464,114 yen(Rounded off to the nearest 1 yen; the same applies hereinafter.)B. Consumption tax amount(A) The portion until September 2019: The number of vehicles that passed: 2,859,269
vehicles, consumption tax rate: 8%(245 yen × 2,859,629 vehicles) × 2% × 8% = 1,120,833 yen(B) The portion after October 2019: The number of vehicles that passed: 1,725,244
vehicles, consumption tax rate: 10%(245 yen × 1,725,244 vehicles) × 2% × 10% = 845,370 yen(C) Subtotal: 1,966,203 yen
C. Court costs
In consideration of the difficulty of the case, the claimed amount, the approved
amount, and other circumstances, it is reasonable to find the court costs that are in thecorresponding causal relationship with the tort in this case to be 2.5 million yen .
D. Total amount: 26,930,317 yen
The Appellant demands payment of delay damages for the portion of 10 million yen
from the claimed amount accrued thereon at the rate of 5% per annum as prescribed by
the Civil Code before Amendment for the period from April 2, 2019, until thecompletion of the payment. Since the part exceeding 10 million yen out of theaforementioned 26,930,317 yen arose due to the tort that was made before said date,concerning delay damages, the court upheld the claim to demand payment of delay
damages for the portion of 10 million yen out of 26,930,317 yen accrued thereon at therate of 5% per annum as prescribed by the Civil Code before Amendment for the period
from April 2, 2019, until the completion of the payment, and the claim to demand
payment of delay damages for the remaining portion accrued thereon at the rate of 3%
per annum as prescribed by the Civil Code for the period from November 12, 2021,
until the completion of the payment. In addition, in this case, the claimed amount basedon the unjust enrichment is not found to exceed the aforementioned amount. Therefore,
the court upheld the claims based on the tort.
46

(6) The Appellee alleged that the terminal charge and tolls are received for the
reimbursement of construction costs, etc. and therefore, they do not fall under sales;
however, it is only an allegation related to the use of the sales and it does not fall undergrounds that terminal charge and tolls should not be considered as sales that serve as
the basis for calculation of royalties.
In addition, the Appellee alleged that the toll, etc. is charged not only using a smart
interchange and therefore, the toll, etc. has no relationship with the use of Inventions
and there is no increase in the number of vehicles using the systems by installation of
the Sano SA Smart Interchange. However, these circumstances are enough for taking
into consideration in making determinations on the royalty rate and do not fall undercircumstances to deny deeming tolls, etc. to be sales. The Appellee alleged that there isalso a case where a vehicle gets off the expressway earlier than before as a result of theinstallation of the Sano SA Smart Interchange and the toll to be paid has decreased.
However, as mentioned above, a vehicle that enters or exits from a Sano SA Smart
Interchange uses the Appellee's systems and the toll paid by the vehicle falls under sales
related to the use of Appellee's systems, and therefore, the aforementioned allegationsof the Appellee do not affect the determination to consider tolls, etc. to be sales.
Furthermore, the Appellee alleged that, as a result of determining whether ETC
communication is available, vehicles with which communication could not be
performed and that are guided to an exit lane are very limited among vehicles that passthrough a smart interchange and there are no vehicles that back off or enter in the wrong
direction in a narrow line in a smart interchange; since the terminal charge, etc. cannot
be collected from vehicles that cannot use ETC communication or vehicles that enterfrom the wrong direction, the features of the Inventions have no relationship with thecollection of terminal charge, etc. by the Appellee; and even if the terminal charge isdeemed to be the royalty base, it should be allocated in proportion of the component
percentage of the Appellee's systems (7.8%) and the percentage of vehicles that are
guided to the second lane (exit lane) (0.22%). However, it is found that all vehicles thatenter and exit from Sano SA Smart Interchange use the Appellee's systems and vehicles
that are guided to the first lane by the Appellee's systems also use the Inventions; inaddition, passengers in vehicles receive profits to secure smooth and safe travel at aninterchange by using the Appellee's systems, and tolls, including terminal charge, arepaid as a compensation including that for said profits. Therefore, the aforementioned
allegations of the Appellee cannot be accepted.
No. 4 Conclusion
As mentioned above, all the Appellant's claims in the prior instance to demand payment47

of compensation for damages of 10 million yen and delay damages accrued thereon at
the rate of 5% per annum for the period from April 2, 2019 until the completion of thepayment have grounds and should be granted. The judgment in prior instance that
rejected all of the claims is unjust. Therefore, the appeal in this case has grounds. The
Appellant's expanded claim in this instance has grounds to the extent of demanding that
the Appellee pay 16,930,317 yen and delay damages accrued thereon at the rate of 3%
per annum for the period from November 12, 2021 until the completion of the payment,
and it is granted to that extent. The remaining claims of the Appellant are dismissed andthe judgment is rendered as indicated in the main text.
Intellectual Property High Court, Second Division
Presiding judge: HONDA Tomonari
Judge: ASAI Ken
Judge: KATSUMATA Kumiko48

(Attachment 1)
Parent Application
Application
Registration

First generation
Application

Second generation
Application

Third generation
Application

Patent 2

Fourth generation
Application
Registration

Fifth generation
Application

Sixth generation

Patent 1 Parent
Application

Application

Seventh generation

Application

Patent 1

PatentApplication

Application
Registration

Eighth generation
Application

Ninth generation
Application

49

(Attachment 2)
Number of vehicles that used the Sano Smart Interchange
year/monthvehicles/day

vehicles/month

July 2015 (1-2)(3-31)
August 2015
September 2015
October 2015
November 2015
December 2015
January 2016
February 2016
March 2016
April 2016
May 2016
June 2016
July 2016
August 2016
September 2016
October 2016
November 2016
December 2016
January 2017
February 2017
March 2017
April 2017
May 2017
June 2017 (1-15)(16-30)July 2017
August 2017
September 2017
October 2017
November 2017
December 2017
January 2018
February 2018
March 2018
April 2018
May 2018
June 2018
July 2018
August 2018
September 2018
October 2018
November 2018
December 2018
January 2019
February 2019
March 2019
April 2019
May 2019
June 2019
July 2019
August 2019
September 2019
October 2019
November 2019
December 2019
January 2020
February 2020
March 2020
April 2020
May 2020
June 2020
July 2020
August 2020
September 2020
October 2020
November 2020
December 2020
January 2021
February 2021
March 2021
April 2021
May 2021
June 2021
July 2021

Target patents/systems

Patent 2
System 4

Patent 1
Systems 1 to 3

Total number of vehicles

50