(1) Outline of the decision
 
 A patent right owned by a patentee is an invention of a kit comprising a combination of a hydrous viscous composition containing carbonate and sodium alginate and an acid-containing granule, etc. and a hydrous viscous composition can hold carbon dioxide in a state of bubbles. On the other hand, a product of an infringing party is a cosmetic pack kit mixing two agents of a gel and a granule, and the gel contains bubble carbon dioxide. The grand panel (the decision by five-person panel rather than the usual three-person) held that the product of the infringing party falls within the technical scope of the patented invention and also there is no reason to invalidate the patent right.
 
 The grand panel further held for the application of the damage amount under Article 102(2) (the provision of estimating the profit amount of the infringing party as the damage amount of the patentee) and the rebuttal to presumption, and the application of the damage amount under Article 102(3) (the provision for the minimum damage amount that the patentee can claim).
 
 Especially, in calculating the damage amount under Article 102(3), the grand panel held that the rate to be imposed ex post facto on the infringing party for the execution of the infringement would be higher in comparison with the normal royalty rate.
 
 Further explanation of the decision of calculating the damage amount is made as in the paragraph (2) below.

(2) Damage amount (Article 102(2) and (3))
 
 Outline and study of the decision of the grand panel regarding Article 102(2) and (3) are shown below.
 
(2-1) Article 102(2)
(a) Outline
 According to Article 102(2), the damage amount to a patentee is, in principle, estimated as the total amount of profit earned by an infringing party. The total amount of profit earned by the infringing party is the amount that deducting "Expenses to be deducted" from the sales amount of infringing products sold by the infringing party, and the burden of proof is on the side of the patentee.
 

 "Expenses to be deducted" is additionally required in direct relation with manufacture and sales of the infringing products by infringing party.
 

 Items corresponding to "Expenses to be deducted": raw material costs, expenses required for purchasing, freight costs, etc.
 

 Items not corresponding to "Expenses to be deducted": labor costs for management divisions, transportation and communication expenses, etc. Labor costs for part time workers, experiment and research costs for subcontractors and advertising costs, etc., which are claimed by the infringing party, were not deemed to fall under "Expenses to be deducted" since it was not evident whether these items were related to the manufacture and sales of the infringing products. On the other hand, a part of the advertising costs were deemed to fall under "Expenses to be deducted" since it was evident that they were related to the manufacture and sales of the infringing products.
 

(b) Study
 

 It should be noted that, in case of taking a position of the infringing party, it is required to argue "Expenses to be deducted" from the total profit. Specifically, for example, in order to enable the infringing party to claim that items fall under "Expenses to be deducted" due to the direct relation with the manufacture and sales of the infringing products, it is required to clarify to which product and operation the expenses incurred in manufacture and sales of the infringing products are attributed.
 

(2-2) The rebuttal to presumption under Article 102(2)
(a) Outline
 As a circumstance for the rebuttal to presumption of a damage amount in Article 102(2) above, the circumstance to hinder reasonable and probable legal causation between a profit gained by an infringing party and a damage suffered by a patentee, that is, the circumstance to show no reasonable and probable legal causation between them is cited.
 

 The infringing party is responsible for verifying such circumstance for the rebuttal to the presumption.
 

 The circumstances for the rebuttal to the presumption of the damage amount:
 

 
(b) Study
 

 It should be noted that, in case of taking a position of the infringing party, it may be required not only to argue a circumstance for the rebuttal to the presumption but to argue and verify that such circumstance contributes to sales of the infringing party in order to claim the rebuttal to the presumption of the damage amount in Article 102(2).
 

(2-3) Article 102(3)
(a) Outline
 According to Article 102(3), a damage amount of a patentee should, in principle, be calculated by multiplying the rate to be received by the patentee for its execution on the standard sales of infringing products.
 

 In a license agreement of a patented invention, at the stage where whether to fall within the technical scope or whether to nullify the subject patent is not determined, it is normal to be restricted thereunder that the alleged infringing party pays a minimum guarantee and cannot request a refund of the paid royalty even if the patent is invalidated. "The rate to be received by the patentee for its execution" under Article 102(3) is the rate of royalty to be decided in advance in this circumstance.
 

 Therefore, in the event of the patent infringement for the reason that the infringing products fall within the technical scope of the patent right and the patent should not be nullified, it is not always required to be based on the rate of royalty decided in advance, so that the rate may be decided afterwards. The rate to be decided afterwards usually becomes higher than the rate of royalty to be decided in advance.
 

 The rate to be decided afterwards should be a reasonable rate in comprehensive consideration of, for examples, the following circumstances shown in the litigation:
 

(b) Study
 A new Article 102(4) of the Patent Act introduced by the revision of May 17, 2019 is as follows:
 

 This Article 102(4) has clarified that the amount of royalty is minimum, and the amount that would be determined if negotiated on the premises of infringing a patent is also considerable. In this respect, the decision of the grand panel that "The rate to be decided afterwards becomes higher than the rate of royalty to be decided in advance." is in line with the intent of establishing the new Article 102(4).