could easily come up with the idea of such replacement at the time of the production of the products, (d) the products are not identical to the technology in the public domain at the time of the patent application of the patented invention or could have been easily conceived at that time by a person who has an average knowledge in the area of technology where this invention belongs, and (e) there were no special circumstances such as the fact that the products had been intentionally excluded from the scope of the patent claim in the patent application process, the products should be regarded as identical with the construction as indicated in the scope of the patent claim and fall within the scope of the technical scope of the patented invention. Exercise of patent that would be invalid In 2000, the Supreme Court of Japan said in judgment: a court considering a claim of patent infringement should be capable of judging whether or not there exists sufficient reasons to invalidate the patent, even prior to the Japan Patent Office's issuance of a final decision invalidating the patent. If during the hearings the court finds that there exists sufficient cause to invalidate the patent, a claim of injunction, damages, or other claims based on such patent would be an extension of rights beyond the scope contemplated under the law unless it can be demonstrated that circumstances exist which justify special treatment. and clarified that a court may judge the invalidity of patent in a patent infringement lawsuit. Summary of the judgment: In the event there is clear and convincing evidence that a patent is invalid, a claim for injunction, damages, or other claims based on such patent is beyond the scope of rights intended by the act, except in extenuating circumstances. Criminal penalty Japanese patent law provides that patent infringement is a crime. A person who has infringed a patent right must be engaged in penal servitude for at most ten years, and/or must pay a fine of at most ten million yen (Article 196). In addition to the above penalty for an infringer, a firm that the infringer belongs to must pay a fine of at most 300 million yen (Article 201). According to statistics of the National Police Agency of Japan, however, only four people were arrested for the infringement of patent in 2003. History The history of Japanese