Heisei 22 (Ne) 10091 [Treatment Agent for Immobilizing ... Heavy Metals in Fly Ash]
Updated: 1 hour ago
Article information
Type: Case note
Classification: Patents
Topics: Damages
First published on this site: 2023-12-11
Case number: Heisei 22 (Ne) 10091
Display and classification checked: 2026-11-14
Heisei 22 (Ne) 10091 [Treatment Agent for Immobilizing ... Heavy Metals in Fly Ash]
<Damages> Articles 102(1) and 102(3)
JPY 1.8 billion awarded
Circumstances preventing sales during part of the period ⇒ Details unknown (Article 102(3): Period 1, before sales of the plaintiff's product; Article 102(1): Periods 2 and 3, after sales began)
Proviso to Article 102(1)
Competitors
Defendant's sales efforts (filing a notification at a particular time)
(Article 102(3): Period 1, before sales of the plaintiff's product; Article 102(1): Periods 2 and 3, after sales began) Proviso to Article 102(1): circumstances under which the plaintiff would have been unable to sell its product
Existence of competitors: suggests competitors existed in fiscal Heisei 15–18. ⇒ Apportioned according to market share.
The evidence does not establish what significance the defendant's sales efforts, etc. (filing a notification at a particular time) had for the subsequent formation of the market for piperazine-based products among fly-ash heavy-metal immobilization agents.
The premise that the level of the plaintiff's average unit selling price is immediately reflected in tender prices is not necessarily correct.
(Extract from the court's reasoning)
(6) Application of the proviso to Article 102(1) of the Patent Act (circumstances preventing sales) in Periods 2 and 3
A. The underlying market size
(a) In this appeal, the first-instance defendant argues that, in calculating the quantity of the plaintiff's product that could have been sold absent sales of the defendant's product, the market for all fly-ash heavy-metal immobilization agents, including non-piperazine agents (Otsu 60, 61, 64, 94 and 108), should be used as the premise.
(b) However, non-piperazine fly-ash heavy-metal immobilization agents use active chemical substances different from those in piperazine-based agents, and therefore cannot in the first place be regarded as substitutes.
In addition, it is difficult to conclude, solely from the wording of tender specifications of some waste-treatment entities, as the first-instance defendant argues, that non-piperazine fly-ash heavy-metal immobilization agents may have been sold as substitutes for the defendant's product. This is also corroborated by the fact that many tender specifications (Ko 68; Otsu 96) list only piperazine-based fly-ash heavy-metal immobilization agents as eligible products (Ko 67-1).
Accordingly, the first-instance defendant's above argument cannot be accepted.
B. Existence of competitors
(a) Market size and market shares for piperazine-based fly-ash heavy-metal immobilization agents
(1) The first-instance defendant argues that, because competitors other than the first-instance plaintiff and defendant also manufacture and sell piperazine-based fly-ash heavy-metal immobilization agents, even assuming the defendant's product had not existed in the market, the plaintiff could not have sold the entirety of the defendant's sales volume. It argues that a market excluding the defendant's product should be assumed and that, of the defendant's sales volume, the quantity corresponding to competitors' shares in that market constitutes a quantity attributable to ‘circumstances under which [the plaintiff] would have been unable to sell.’
(2) Upon examination, Article 1 of both the former Chemical Substances Control Act and the Chemical Substances Control Act effective April 1, Heisei 16 states that their purpose is to regulate as necessary the manufacture, etc. of new chemical substances to prevent environmental contamination by substances that may harm human health. Dipotassium piperazine-1,4-bis(carbodithioate) and potassium piperazine-1-carbodithioate were designated as designated chemical substances under Article 2(4) of the former Act (Ministry of Health, Labour and Welfare, Ministry of Economy, Trade and Industry, and Ministry of the Environment Joint Public Notice No. 1 of January 9, Heisei 16; Otsu 55). Accordingly, before that date those substances were new chemical substances under Article 3 of the former Act, and thereafter they were designated chemical substances. Both substances also constitute Type II Monitoring Chemical Substances under Article 2(5) of the Chemical Substances Control Act.
Article 23(1) of both the former and the current Chemical Substances Control Acts requires persons manufacturing or importing designated chemical substances or Type II Monitoring Chemical Substances to notify the Minister of Economy, Trade and Industry annually of the quantities manufactured and imported. Article 45(ii) of the former Act prescribes a fine of no more than JPY 100,000 for violations, and Article 45(ii) of the current Act likewise prescribes a fine of no more than JPY 300,000. Article 23(2) of both Acts provides that the Minister shall annually publish the notified quantities manufactured and imported.
As above, the accuracy of the total manufacturing and import quantities of the respective substances published by the Minister under Article 23(2) of the former or current Act is secured by criminal penalties. Those totals should therefore be regarded as accurately reflecting the market size (sales volume) of those substances in Japan.
(3) Next, there is no material directly establishing the overall market size (sales volume) of piperazine-based fly-ash heavy-metal immobilization agents using those substances, and the first-instance defendant has not submitted particularly specific evidence of competitors other than the plaintiff and defendant in the market for piperazine-based heavy-metal immobilization agents. Meanwhile, a statement by an employee of the first-instance plaintiff (Ko 67-1) states that, from April, Heisei 18 onward, the only piperazine-based fly-ash heavy-metal immobilization agents on the market were the plaintiff's and defendant's products.
Upon examination, the total manufacturing and import quantities of those substances published in Ministry of Economy, Trade and Industry notices are found to be 5,619 tonnes in fiscal Heisei 15 (Ko 35-1), 7,773 tonnes in fiscal Heisei 16 (Ko 4-1), 7,586 tonnes in fiscal Heisei 17 (Ko 4-2), 10,434 tonnes in fiscal Heisei 18 (Ko 35-2), 7,482 tonnes in fiscal Heisei 19 (Otsu 54-1 and 54-2), 7,893 tonnes in fiscal Heisei 20 (Otsu 54-1 and 54-2), and 7,023 tonnes in fiscal Heisei 21 (Ko 50). No material is available to confirm the quantity for fiscal Heisei 22, so an accurate figure cannot be determined; for calculation purposes, the most recent fiscal Heisei 21 quantity will be substituted. The plaintiff's and defendant's products are manufactured and sold as aqueous solutions containing those substances at an average concentration of 38%. Dividing the total notified quantity of the substances by 0.38 therefore gives a provisional market size (sales volume) for piperazine-based fly-ash heavy-metal immobilization agents based solely on the published figures.
Calculating provisional annual market sizes (sales volumes) for piperazine-based fly-ash heavy-metal immobilization agents in Periods 2 and 3 by the above method gives the figures in Column C of Attached Table 3.
Using the defendant's sales volumes found in (5)B(a) above (Column B of Attached Table 3) and the plaintiff's sales volumes established by Table 4 of Expert Report A and Ko 64 (Column A of Attached Table 3), provisional annual market shares of the plaintiff's and defendant's products in Periods 2 and 3 are as shown in Column D of Attached Table 3. Their products account for the entire provisional market in fiscal Heisei 19 and also show high shares of ● ●●●% to ●●●●% in fiscal Heisei 20–22. By contrast, their combined share of the provisional market in fiscal Heisei 18 is only ●●●●%.
(4) As above, the manufacturing and import quantities of the substances published by the Minister and the market size (sales volume) of piperazine-based heavy-metal immobilization agents do not necessarily coincide. Nevertheless, the plaintiff employee's statement that only the plaintiff's and defendant's products occupied the market is corroborated for fiscal Heisei 19 by their occupation of the entire provisional market. For fiscal Heisei 20, their combined provisional share is high and close to those for fiscal Heisei 21 and 22; for fiscal Heisei 21 and 22, the statement is also corroborated by many waste-treatment entities' tender specifications listing only the plaintiff's or defendant's product as eligible products (Ko 68). The statement is therefore credible insofar as it concerns fiscal Heisei 19–22. For those fiscal years, in which the plaintiff's product objectively shows a high market share even on the provisional figures, it is appropriate to find that only the plaintiff's and defendant's products existed in the market for piperazine-based fly-ash heavy-metal immobilization agents.
For fiscal Heisei 18, however, the waste-treatment entities' tender specifications supporting the statement all relate to fiscal Heisei 21 and 22, years removed from fiscal Heisei 18, and the combined share of the plaintiff's and defendant's products in the provisional market is only 75.2%. The statement that their products occupied the entire market therefore lacks sufficient corroboration. Rather, as explained in (2) above, the accuracy of the notified manufacturing and import quantities underlying the publication is secured by criminal penalties. The above provisional share of ●●●●% for fiscal Heisei 18 shows a significant difference from the provisional shares for fiscal Heisei 19 onward (●●●●%–●●●%) found in (3). In the absence of sufficient evidence that large quantities of the substances were used for purposes other than fly-ash heavy-metal immobilization agents, this difference should be regarded as sufficient to infer the existence of competitors in fiscal Heisei 18.
Fiscal Heisei 15–17, moreover, was a period in which three OEM companies existed as competitors in the market.
Accordingly, for fiscal Heisei 15–18, absent other reliable evidence, when considering circumstances under which the first-instance plaintiff would have been unable to sell, the manufacturing and import quantities of those substances notified to the Minister, which approximately accurately reflect the market size for piperazine-based heavy-metal immobilization agents, must be treated as corresponding to that market size.
(5) Therefore, of the defendant's sales volumes in fiscal Heisei 15–18, after excluding quantities considered to have been sold by competitors had the defendant's product not been sold, the quantity of the plaintiff's product that the first-instance plaintiff could have sold should appropriately be the defendant's sales volume (the fiscal Heisei 15–18 portions of Column A of Attached Table 4) multiplied by the plaintiff's market share calculated above in the market for piperazine-based fly-ash heavy-metal immobilization agents excluding the defendant's product (the fiscal Heisei 15–18 portions of Column B of Attached Table 4). The resulting quantities appear in the fiscal Heisei 15–18 portions of Column F of Attached Table 4.
For fiscal Heisei 19–22, by contrast, as stated above, only the plaintiff's and defendant's products are found to have existed in the market for piperazine-based fly-ash heavy-metal immobilization agents. The existence of competitors therefore cannot be found as a circumstance under which the first-instance plaintiff would have been unable to sell its product.
Originally published: 2023-12-11
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The first publication date and update dates are recorded separately. Display maintenance does not mean that the legal analysis was re-verified.
2026-11-14: Display and classification maintenance (article information, issue tags, language/SEO links, related articles, and consultation path added).
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