Interference No. 104,313
Sauer Inc. v. Kanzaki Kokyukoki Mfg. Co., Ltd.
would be receptive to give Sauer some recourse, Sauer should have alerted the administrative
patent judge about the situation as soon as Kanzaki's opposition was filed, at which time the
administrative patent judge could have allowed Sauer to supplement its brief and then provide
Kanzaki an opportunity to respond. Instead, Sauer did not make such a motion to supplement its
principal brief and chose, instead, to include new arguments and citation to new evidence in its
reply, thus effectively depriving Kanzaki of a full opportunity to respond. Although Kanzaki's
opposition does address each of the three elements at issue, we decline to simply assume that it
would have had no further arguments or a somewhat different representation had Sauer's
principal brief contained arguments on the issue and cited to certain evidence in the record. That
Kanzaki's counsel was alert, careful, and diligent, in addressing all elements of the count does
not work toward Kanzaki's detriment. The burden of proof still lies squarely on the junior party.
In the alternative, even if we were to excuse Sauer's admitted omissions and treat Sauer's
brief as having cited to Paragraph Nos. 52 and 53 in Mr. Louis' declaration and also to Paragraph
No. 50 and 51 in Mr. Johnson's declaration, Sauer still has not established a prima facie case of
conception of each and every element of the count. Specifically, the referenced paragraphs in the
Louis and Johnson declarations do not sufficiently account for the specific relative orientation
between the motor and pump mounting surfaces on the first and second leg of the center section.
The annotated version of the relevant figures of Exhibit 2045 appear in Exhibit 2219. As
is annotated by Sauer in Exhibit 2219, the first leg of the center section does not normally extend
in a horizontal direction as is required by the count, and the second leg of the center section does
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